Victorian Consolidated Legislation

Maintenance Act 1965 - SECT 26

Constructive desertion by conduct

26. Constructive desertion by conduct



(1) Where-

   (a)  the conduct of a party to a marriage constitutes just cause and excuse
        for the other party to the marriage to live separately or apart and-

   (i)  occasions the other party to live separately or apart-



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the party shall, for the purposes of this Part, be deemed to have deserted the
other party without just cause or excuse, notwithstanding that that party may
not in fact have intended the conduct to occasion the other party to live
separately or apart.

(2) Where-

   (a)  the conduct of a party to a marriage constitutes just cause and excuse
        for the spouse of that party to live separately or apart and-

   (i)  occasions the spouse to live separately or apart-



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a bona fide offer by that party to provide a home for the spouse is not of
itself a sufficient answer to a complaint under this Part for the maintenance
of the spouse, or a sufficient reason for the discharge, suspension or
variation of an order under this Part for the maintenance of the spouse.

(3) Where a husband and wife are parties to an agreement for separation
whether oral or in writing or constituted by conduct, the refusal by one party
to the marriage, without reasonable justification, to comply with the other
party's bona fide request to resume cohabitation shall for the purposes of
this Part as from the date of the refusal constitute desertion without just
cause or excuse on the part of the party so refusing.

(4) For the purposes of the last preceding subsection reasonable justification
means reasonable justification in all the circumstances, including the conduct
of the other party since the marriage whether that conduct took place before
or after the agreement for separation.