1 CJLR. 1984 July 3 [A. Loizou, J.] POLYVIOS TOULEKJU, Petitioner, v. PAMELA LAURICELLA, Respondent. (Matrimonial PetitionNo. 3/84). Matrimonial causes—Divorce—Desertion—Constructive desertion— Wifethrowing husband's belongings outof thehouse andrefusing to have anycontact with him although herepeatedly triedto get back to the conjugalhome—Guilty of constructive desertion. 5 This was a husband's petition for divorce on the ground of desertion by the wife. In 1980 the respondent threw the husband's belongings out of the house and has ever since refused tohaveanycontactwithhimalthoughhetriedrepeatedly to get back to the conjugal home. 10 Held,that .this is an instance of constructive desertion, as desertion doesnotonlyexistwhenapartyleavesthematrimonial home first; that one can be guilty of desertion if the other spouse isforced by his or her conduct to leave home, in which casethespouseresponsiblefordrivingouttheotherisconsidered in Law to be the guilty one; that there exists, in this case, on behalf of the respondent-wife the intention to desert and that such intention continues and has been accompanied by-conduct which amounts in fact to expulsion; and that, therefore, the petitioner has established the ground of constructive desertion; and that, accordingly, a decree nisi must be granted to her on that ground. Decree nisi granted. 15 20 Matrimonial petition. Petitionbythehusbandfor divoiceonthe groundofdesertion. 25 E. Lemonaris, for the petitioner. Cur. adv. vult. A. Loizou J. read the following judgment. This is a husband's petition for divorce on the ground of desertion by the 521 Λ. Loizou J. Toulekki v. Lauricella
(1984)respondent-wife, who though duly served failed to enter an appearance and defend the proceedings. The parties were lawfully married attheCityhall of theBorough of Manhattanof the Cityof NewYork Stateof NewYork. After theirmarriage they lived and cohabited for a period of about three years. 5 There is no issue of the said marriage. In 1980 the respondentthrew his belongings out of thehouse and refused to have any contact with him, although he tried repeatedly to get back to theconjugal home. Hestayed on for another two years in New York with his nephew Costas Chry- 10 santhou, who has been called as a witness and who helped the petitioner in his efforts to resume cohabitation, but without success. Hethenreturnedto Cyprus where he has been living eversince. In these circumstances this is an instance of constructive 15 desertion, as desertion does not only exist when a party leaves the matrimonial homefirst. One can be guilty of desertion if the other spouse is forced by his or her conductto leavehome, in which case the spouse responsible foi driving out the other is considered in Law to be the guilty one. 20 As pointed out in Raiden onDivorce 8thedition p. 170,para graph 129: "There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife and the case of a manwho compels his wife by his conduct 25 with the same intention to leave him." It is apparent from the evidence before me,that there exists, in this case, on behalf of the respondent-wife the intention to desert and that such intentioncontinuesand has beenaccompa nied by conduct which amounts in fact to expulsion. 30 For all theabove reasons I have come to the conclusionthat the petitioner has established the ground of constructive de sertion and in thecircumstances I grant hima decree of divorce nisi on that ground. There will be, however, no order as to costs, as none have been claimed. Decree nisigrantedwith noorder as to costs. 522 35