In the case of Kayhul V Kayhul in the High Court of Uganda Family Division, Divorce Cause NO.123 OF 2016.
CORAM; HON JUSTICE GODFREY NAMUNDI, Judgment delivered on the 3rd of July, 2020.
This is a case that extensively discusses desertion as a ground for divorce. Section 4 of the Divorce Act provides that desertion occurs where the spouse leaves the marital home with an intention not to return or when parties still stay together in the same house/room; however, one spouse has withdrawn from the other, and this continues for a while, two years or more. In this case, the couple got married while in Lesotho and later moved to Uganda, which is the Respondent’s home country. It is the Petitioner’s testimony that while in Uganda, they lived together until the Respondent stopped communicating with her and started living in a separate room for more than two years. The Respondent denied the allegations and stated that he never at any point in time desert the Applicant and that it was the Applicant who was cruel and abusive toward him. No evidence was adduced in court to support the Respondent’s allegations.
The honorable Justice went ahead to discuss the issue of desertion and what it entails. He stated that to establish desertion two things must be proved: first, certain outward and visible conduct- the factum of desertion and secondly the “animus deserted”- the intention underlying this conduct to bring the marital union to an end. Infrequent desertion, the factum is simple: it is the act of the absconding party in leaving the marital home. The contest in such a case will be almost entirely as to “animus Deserindi.” Was the intention of the party going home to break it up for good, or something short of, or different from that.”
The evidence before the court showed that the Petitioner and Respondent were living in separate bedrooms, and eventually, both of them left the marital home and are now living in different places. The Petitioner lives in Kirinya, whereas the Respondent lives in Kireka on Namugongo Road for two (2) years and two months now. The judge based his decision on granting a divorce on the entirety of the evidence submitted. That is to say, the relations of the parties during the subsistence of the marriage and the fact that the parties are not living together. In light of this, the judge concluded that they were not planning any reconciliation. He found that in light of the above, it was evident that the marriage between the Petitioner and Respondent had irretrievably broken down.