Desertion, in a legal context, refers to the act of one spouse leaving the marital home and abandoning their marital responsibilities and obligations without consent or justification. It is a term primarily associated with family law and divorce proceedings. This comprehensive legal overview will provide a detailed definition of desertion, explain its legal implications, outline the elements that constitute desertion, discuss defenses, and explore the consequences of desertion in divorce cases.

Definition of Desertion:

Desertion, also known as marital abandonment, occurs when one spouse voluntarily and willfully leaves the marital home, effectively abandoning their marital duties and responsibilities. This act is typically unilateral, meaning it is initiated by one spouse without the consent or agreement of the other. Desertion can take various forms, including physical departure from the home, emotional withdrawal, or refusal to engage in marital relations.

Legal Implications of Desertion:

Desertion carries legal implications, particularly in the context of divorce and family law:

Grounds for Divorce: Desertion is recognized as one of the grounds for divorce in many jurisdictions. It can serve as the basis for seeking a divorce if certain legal requirements are met.

Alimony and Property Division: In divorce proceedings, desertion can affect alimony (spousal support) and property division. Courts may consider the circumstances of the desertion when making decisions about financial support and the distribution of marital assets.

Child Custody: Desertion can also impact child custody determinations. Courts may take into account the deserting parent’s actions and the effect on the children when deciding custody arrangements.

Elements of Desertion:

To establish desertion as a legal ground for divorce, several key elements must be demonstrated:

Voluntary Departure: The departing spouse must have left the marital home voluntarily and without the consent or agreement of the other spouse.

Absence of Justification: The departure must lack legal justification or a valid reason recognized by the jurisdiction’s laws. Common justifications may include situations involving abuse or danger to one’s safety.

Intent to Abandon: There must be clear evidence of the spouse’s intent to abandon the marital relationship and responsibilities.

Sustained Absence: Desertion typically involves a sustained or prolonged absence from the marital home and the abandonment of marital duties over a significant period.

Defenses Against Desertion Allegations:

In response to allegations of desertion, the accused spouse may assert certain defenses:

Consent or Agreement: If both spouses agree to the separation or departure, it may not constitute desertion.

Justification: If the departing spouse can demonstrate a valid justification for leaving, such as a threat to their safety or well-being, it may serve as a defense against desertion allegations.

Reconciliation Efforts: Evidence of sincere attempts to reconcile or return to the marital home can be used to counter desertion claims.

Counter-Allegations: In some cases, the accused spouse may assert counter-allegations, such as cruelty or abuse, as a defense against desertion claims.

Consequences of Desertion in Divorce Cases:

Desertion can have significant consequences in divorce cases, including:

Grounds for Divorce: Desertion can serve as legal grounds for divorce, allowing the injured spouse to seek the dissolution of the marriage.

Property Division: Courts may consider desertion when dividing marital property, potentially impacting the distribution of assets and liabilities.

Alimony: Desertion can affect alimony awards. The departing spouse may be required to provide financial support to the injured spouse as part of the divorce settlement.

Child Custody: Desertion may influence child custody determinations. Courts may take into account the impact of desertion on the children and make custody decisions accordingly.

Visitation Rights: The deserting parent may face limitations on visitation rights or parenting time, depending on the circumstances.

Impact on Marital Agreements: Desertion may also impact the enforcement or modification of prenuptial agreements or other marital contracts.

Common Misconceptions:

There are several common misconceptions related to desertion:

Duration: Desertion does not necessarily require a lengthy absence. Even a relatively short period of abandonment, if willful and unjustified, can be considered desertion in some jurisdictions.

Gender: Desertion can be committed by either spouse, regardless of gender. It is not limited to husbands leaving wives, and wives can also be accused of desertion.

Physical Departure: Desertion is not solely defined by physical departure from the marital home. Emotional abandonment and refusal to engage in marital relations can also constitute desertion.


Desertion in a legal context refers to the act of one spouse leaving the marital home and abandoning their marital responsibilities and obligations without consent or justification. It has legal implications in divorce cases, affecting grounds for divorce, property division, alimony, child custody, and visitation rights. To establish desertion as a ground for divorce, certain elements must be met, including voluntary departure, absence of justification, intent to abandon, and sustained absence.

Defenses against desertion allegations may include consent, justification, reconciliation efforts, or counter-allegations. Understanding the legal concept of desertion is essential for individuals navigating divorce proceedings and for legal professionals involved in family law cases.

If you are in need of a family law attorney contact us today.
For more family law terms visit our glossary page.

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