Background
Have you ever seen or heard of a situation where a husband or wife abandons their marriage partner or runs away from the marriage? Why would someone who got married to a person whom they made the world believe to be their best choice to settle down with and start a family suddenly abandon that same person they once described as “the best thing that has ever happened to me” and run away? There must be a reason for such an action, but are these reasons recognized by law? Is deserting a marriage partner an exercise of a matrimonial right by a spouse, or is it an offense under the law? What are the legal implications of a marriage partner abandoning a spouse or running away from the marriage? This article delves into the legal concept, scope, and implications of desertion. It critically analyzes the essential ingredients required to establish desertion, including the fact of separation, intention to desert (animus deserendi), absence of consent, and the statutory minimum period of two years under the Matrimonial Causes Act.
Introduction
Desertion in marriage constitutes a grave matrimonial offense and a fundamental breach of marital obligation under Nigerian family law and broader matrimonial jurisprudence. It refers to the unilateral and unjustified withdrawal by one spouse from cohabitation and consortium without the consent or lawful excuse of the other. Marital desertion hovers around those controversial, hard, trying, and difficult moments in a marriage where the true love, patience, unconditional commitment, and utmost endurance of a marriage partner are greatly tested.
Marriage, as a legal and social institution, imposes mutual rights and duties on spouses, including the obligation of consortium, cohabitation, care, and support. When one party to the marriage unilaterally and unjustifiably abandons these obligations, particularly through physical separation and withdrawal of conjugal association, the act is legally termed as desertion.
In Nigeria, the courts have consistently maintained that mere separation does not amount to desertion unless it is accompanied by a clear intention to forsake marital obligations. Similarly, desertion may also occur in the form of constructive desertion, where the conduct of one spouse is so intolerable or injurious that the other is compelled to leave the matrimonial home. In this case, the spouse who caused the departure is legally regarded as the deserter.
Definition
Black’s Law Dictionary (11th edition) defines desertion as “the willful and unjustified abandonment of a person’s duties or obligations.”
The Court of Appeal in Agienoji v. C.O.P., Edo State (2007) defined desertion as:
the act by which a person abandons and forsakes, without justification, or unauthorized, a station or condition of public, social or family life, renouncing its responsibilities and evading its duties.
The Matrimonial Causes Act under Section 18 beautifully explains what constitutes desertion:
a married person whose conduct constitutes just cause or excuse for the other Party to the Marriage to live separately or apart, and occasions that other Party to live separately or apart, shall be deemed to have willfully deserted that other Party without just cause or excuse, Notwithstanding that person may not in fact have intended the conduct to occasion that other Party to live separately or apart.
On what constitutes desertion in Matrimonial Causes, the Court of Appeal in Nanna v. Nanna (2006) held:
in a petition for dissolution of marriage, the fact that the parties have lived apart for a continuous period of two years immediately preceding the presentation of the petition is not by itself conclusive proof upon which the divorce can be granted on the ground that the marriage has broken down irretrievably. Desertion within the meaning of section 15(2)(e) of the Matrimonial Causes Act must be one where any of the parties abandons and forsakes without any justification, thus renouncing his or her responsibilities and evading its duties. In the instant case, the evidence of desertion adduced was not one contemplated under section 15 (2) (e) of the Act.
Types of Desertion
(1) Constructive Desertion: This occurs where one spouse’s misconduct forces the other spouse to leave the marital abode. The actions of the offending spouse must be serious enough that the spouse who is forced from the home finds the continuation of the marriage to be unendurable or dangerous to their safety or well-being and finds it necessary to seek safety outside the marital domicile. This is also termed constructive abandonment. In this case, even though the spouse who left is the one physically absent, the law treats the one who caused the situation as the deserter.
On what constitutes constructive desertion, the Supreme Court in Tabansi v. Tabansi (2018) held:
By virtue of section 18 of the Matrimonial Causes Act, Cap.M7 Laws of the Federation of Nigeria, 2004, a married person whose conduct constitutes just cause for the other party to live separately or apart and occasions that other party to live separately or apart shall be deemed to have wilfully deserted that other party without just cause or excuse, notwithstanding that the person may not in fact have intended the conduct to occasion that other party to live separately or apart.
(2) Criminal Desertion: This occurs where one spouse willfully fails or refuses without just cause to provide for the care, protection, or support of the other spouse who is in ill health or needy circumstances.
(3) Obstinate Desertion: This occurs where one spouse physically leaves the matrimonial home and persistently refuses to return, so that the other spouse has grounds for divorce as enshrined under Section 15 of the Matrimonial Causes Act.
Separation with Consent is not Desertion: It is important to distinguish mutual separation or separation with the consent of both parties from the abandonment of the other. Section 15 (2) (e) of the Matrimonial Causes Act allows separation as a ground for divorce only when it is for a continuous period of at least three years, but it must be mutual and voluntary. Consent negates desertion.
Unusual, Atypical, or Complex Forms of Desertion
There are scenarios that reflect complex or atypical situations where the act of desertion may not fall neatly into the classical categories like actual or constructive desertion, but they are still very relevant in practice, especially in the Nigerian cultural and legal context. Legally, the core element of desertion is the intention to permanently forsake the matrimonial union without just cause (called animus deserendi) and without the other spouse’s consent. So any situation that lacks this intent may not be classified as true desertion, though it can resemble it in effect.
These types of desertion are sometimes referred to as “quasi-desertion” or “involuntary desertion” depending on the circumstances. They are categorized as follows:
(1) Voodoo, Juju, or Charm, Involuntary, or Spiritually-Induced Desertion (Spiritual Manipulation or Diabolic Influence): This is a situation where a spouse is allegedly bewitched or spiritually manipulated (e.g., by a third party using charms, rituals, or native medicine) to abandon their partner involuntarily. Although this is not usually recognized under strict statutory law, it is often argued in Customary or Sharia Courts.
(2) Desertion by Abduction or Kidnapping (Involuntary Absence / Forced Disappearance): This is a situation where a spouse disappears due to being kidnapped, abducted, trafficked, or detained unlawfully and is never heard from again. This is not desertion because there is no intention to desert; it is an involuntary disappearance. The abandoned spouse may later seek the dissolution of the marriage on the ground of presumption of death, irretrievable breakdown, or seven years’ absence as encapsulated under Section 15 (2) (h) of the Matrimonial Causes Act and Section 164 (1) of the Evidence Act 2011, respectively.
(3) Third-Party Influenced Desertion (Induced Desertion / Third-Party-Inspired Desertion): This occurs when a spouse abandons the marriage based on advice or pressure from family members, friends, religious leaders, or community figures, even when there’s no abuse or cruelty involved. If the spouse acted under undue influence, courts may consider whether they had a true animus deserendi. If they knowingly followed the advice and refused reconciliation, it may be regarded as actual desertion.
(4) Desertion by Long-Term Imprisonment, Without Communication (Desertion by Involuntary Confinement / Custodial Absence): This is where a spouse is imprisoned (especially without trial or during conflict situations) and loses contact with the other partner for a prolonged period. This may not amount to desertion if the imprisoned spouse did not intend to abandon the marriage. However, the innocent spouse can rely on Section 15 (2) (h) of the Matrimonial Causes Act for dissolution if the marriage has broken down irretrievably.
(5) Economic or Migration-Based Desertion (Economic Desertion or Migration-Induced Desertion): This occurs when a spouse migrates for work, business, or residence abroad and never returns, ceases contact, or stops providing support. If the migration was legitimate but later became abandonment with intent, it may qualify as actual desertion. Courts examine the duration, intent, and communication.
(6) Religious Desertion (Constructive Desertion or Ideological Desertion): This occurs when one partner changes religion or joins a sect that demands polygamy, separation, or a total change in lifestyle, forcing the other to leave. (Depending on who leaves and who causes the breakdown).
(7) Psychological Withdrawal / Emotional Desertion (Non-Physical): A partner may be physically present in the home but emotionally absent, refusing communication, affection, or any conjugal relationship. Though difficult to prove, this may amount to constructive desertion if it becomes intolerable for the other spouse to remain.
Although statutory and case law typically recognize only actual and constructive desertion, real-life scenarios such as the ones discussed above have led to creative judicial interpretations, especially in customary courts and among religious tribunals.
Factors Leading to or Causes of Desertion
(1) Cruelty and Domestic Violence.
(2) Infidelity or Adultery.
(3) Financial Neglect or Hardship.
(4) Irreconcilable Differences or Constant Quarrelling.
(5) Cultural or Family Pressure.
(6) Religious or Ideological Conflicts.
(7) Mental Illness or Psychological Breakdown.
(8) Infertility or Inability to Bear Children or Incessant Miscarriage.
(9) Pursuit of a New Relationship or Marriage.
(10) Migration or Relocation Without Consent.
(11) Sexual Neglect or Denial of Conjugal Rights.
(12) Substance Abuse or Addictions.
(13) Imprisonment or Long-Term Incarceration.
(14) Child Abuse or Endangerment.
(15) Forced or Arranged Marriages.
(16) Sexual Incompatibility.
(17) Sudden incapacitation: This relates to situations where one partner might have been incapacitated by some factors which might have probably rendered them unlike their former self. For example:
(a) Prolonged sickness with no signs of recovery.
(b) Where one partner has lost their source of income.
(c) Where one partner has totally without remedy lost a vital part of the body, especially the sex organ, permanently.
(d) Where the man is incapable of performing his sexual duties, such as not being able to achieve an erection.
(e) Weak erection.
(f) Inability to impregnate (impotency).
(g) Constant miscarriage of pregnancy.
(h) Constant giving birth to stillborn babies.
(i) An accident that permanently disfigures a partner, such as the loss of a leg(s) and/or arm(s) (amputation), amnesia (memory loss), a face scar, ear loss, teeth loss, tongue loss, nose loss, hunchback due to a fracture of the backbone, permanent dislocation (permanent inability to move), or being crippled. Anything at all that warrants one partner to abandon the other.
Some might argue that marriage is not by force and therefore if any of the partners in the union at any point feel or have a reasonable cause to believe that they are no longer interested in the marriage, they should be allowed to leave the union. Yes, it is true that marriage is not by force. In fact, it is an offense to force someone into marriage or to force someone to remain in a marriage that they no longer desire to remain in. To do so would amount to the violation of Section 35 of the Constitution (1999 as amended).
The law has guaranteed freedom to marriage partners to leave the union if they at any point feel that they are no longer interested in continuing in the union. However, such a decision to leave a marriage must satisfy the factors prescribed under the law, and such a decision to leave the union must follow the due process outlined under the law, or else it could amount to desertion.
In respect to the dissolution of marriage, The Court of Appeal in Nanna v. Nanna (2006), while affirming the ingredients for the dissolution of marriage on the ground that the marriage has broken down irretrievably, held as follows:
By virtue of section 15(2) of the Matrimonial Causes Act, the court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts:
(a) that the respondent has willfully and persistently refused to consummate the marriage;
(b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;
(e) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;
(f) that the parties of the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;
(g) that the other party to the marriage has for a period of not less than one year failed to comply with a decree of restitution of conjugal rights made under the Act;
(h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable ground for presuming that he or she is dead.
With the foregoing, it is clear that the law does not force anyone to remain in a marriage union that they do not desire to remain in. However, you cannot run away from marriage, abandon, or desert a partner with the intention of ending a marriage without following the due process outlined under the law. The law frowns upon such behavior, and the aggrieved party could sue.
Proving Desertion
The Supreme Court in the case of Chukwuogor v. A.-G, Cross River State (1998), listed two necessary elements that must be present in an act of desertion or abandonment:
(a) animus deserendi, that is, an intention to desert; and
(b) the act of desertion.
However, before a party can even complain of matrimonial desertion, such a party must first prove that a valid marriage exists. This is because an illegal union is an invalid marriage in the eyes of the law and is therefore not enforceable under the law. In fact, an invalid marriage is an offense under Nigerian law, and this could lead to the prosecution of anyone found culpable.
The Court of Appeal in Motoh v. Motoh (2011), while commenting on the proving of marriage, held as follows:
(1) On Proof of a valid marriage under customary law: The essential ingredients of a valid customary law marriage, such as the payment of the dowry ceremony, carrying of the bride to the house of the bridegroom, et cetera, must be proved by calling evidence to establish whether there was a valid marriage under the customary law.
(2) On Proof of marriage under the Marriage Act: The production of the original or a certified copy of a certificate of marriage is the best recognized method of proving a marriage under the Marriage ordinance or Marriage Act. However, non-production of a certificate is not an indication that there was no valid marriage under the Marriage ordinance.
The production of the original or certified copy of a certificate of marriage either under section 32 of the Marriage Act or under section 80 of the Matrimonial Causes Act is not the only way to prove a marriage. Thus, where there is evidence of a ceremony of marriage having been performed in accordance with the rites of the church and parties to it have lived as husband and wife, and had cohabited together, everything necessary to ensure the validity of the marriage will be presumed in the absence of decisive evidence to the contrary.
Consequences of Desertion
(A) Ground for Dissolution of Marriage (Divorce): Desertion is recognized as a statutory ground for the dissolution of marriage under Section 15 (2) (d) of the Matrimonial Causes Act (MCA), which provides that a party may petition for divorce where the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.
While this statutory provision appears straightforward, the legal concept of desertion is layered with complex jurisprudential requirements. It is not merely the fact of living apart, but also the presence of an animus deserendi—a deliberate intention to abandon the marital union without just cause.
(B) Filing of an Injunction Suit: Section 70 of the Matrimonial Causes Act provides as follows:
(1) Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
(2) Subject to this section and to rules of court, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
(3) The court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.
(4) The power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of the opinion that there are special circumstances that justify the making of such an order for the benefit of that child.
REFERENCES
Agienoji v. C.O.P., Edo State (2007) 4 NWLR (Pt. 1023) 23.
Chukwuogor v. Attorney-General, Cross River State (1998) 1 NWLR (Pt. 534) 375.
Matrimonial Causes Act, Cap. M7, Laws of the Federation of Nigeria 2004.
Motoh v. Motoh (2011) 16 NWLR (Pt. 1274) 474.
Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1.
Tabansi v. Tabansi (2018) 18 NWLR (Pt. 1651) 279.
The Evidence Act 2011, Section 164.
The Constitution of the Federal Republic of Nigeria 1999 (as amended).
Black’s Law Dictionary, 11th ed. (Thomson Reuters, 2019).
ABOUT THE AUTHOR:
Jacob Shekwobashawye Samuel is a 300 level Law Student of University of Maiduguri. He can be reached via: Whatsapp: +2349152214271 OR LinkedIn: https://www.linkedin.com/in/jacob-shekwobashawye-522991225?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app and Email: [email protected]