17 S.E.2d 75 | Ga. | 1941
Desertion, within the meaning of our statute on divorce, is the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other. Its affirmative natural elements are two: the cohabitation ended, and the offending party's intent to desert. The statute creates a third affirmative element, the lapse of a definite period of time. Negatively, it must be without legal justification, and without a breach of the continuity which the statute renders essential. The allegations of the petition in the present case are not sufficient to show a desertion, but at best simply show that the plaintiff and the defendant separated approximately four years before the institution of the suit, and that the defendant has not supported her and the children during that time and for two years before the separation.
Our Code, § 30-102(7), provides for the granting of a total divorce for the "wilful and continued desertion by either of the *35
parties for the term of three years." This means "the voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other. . . Its affirmative natural elements are two — the cohabitation ended, and the offending party's intent to desert. The statute creates a third affirmative element — the lapse of a definite period of time. Negatively, it must be without legal justification, and without a breach of the continuity which the statute renders essential." 1 Bishop on Marriage, Divorce, and Separation, 690, §§ 1662, 1663; 2 Schouler on Marriage, Divorce, etc., § 1614. See generally, on the subject: Kendrick v.Kendrick,
Judgment reversed. All the Justices concur.
ATKINSON, P. J., concurs especially.