McKenzie, J.c.c., Temporarily Assigned.
The parties were married April 25, 1959. Two children, both still unemancipated, were born of the marriage. Within the past few years defendant commenced staying out late. Differences developed and tensions mounted until about October 1973, when after an argument he stated he wanted a divorce. She suggested that they consult a marriage counselor. He, interested in another woman, declined. When she became convinced that he was so involved and was adamant in pressing for a divorce, she felt embarrassed and humiliated by his continuing presence in the marital home.
Accordingly, they agreed that under the circumstances it would be best for both of them that he move from their residence, and he did so on September 23, 1973.
The question presented, and not yet decided in any reported opinion in any courts since the Divorce Law was amended in 1971, is whether under such circumstances the husband is guilty of a desertion.
Under N.J.S.A. 2A:34-2(b), the previous description of the desertion cause of action was: "willful, continued and
obstinate desertion for the term of 2 [two] years." Under the prior law consent of plaintiff to the separation negated obstinacy, and the desertion cause of action for divorce was not sustained. Howes v. Howes, 125 N.J. Eq. 272 (E. & A. 1939); Dowling v. Dowling, 91 N.J. Eq. 464 (Ch. 1920).
Since the 1971 revision the desertion cause of action is described as: "willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife."
Aside from reduction in the time period, the principal change in this cause of action is the omission of the requirement that the desertion be obstinate -- that is, against the will of the deserted party. See Stover v. Stover, 94 N.J. Eq. 703 (Ch. 1923); Howes v. Howes, supra.
However, under our prior law obstinacy on the part of defendant was not construed to require in all cases that plaintiff be actually opposed to the separation of the parties. A separation brought about by the marital fault (such as adultery or extreme cruelty) of defendant was construed to be a desertion on his part, although the actual separation may have been taking place at the will of plaintiff. See Gutmann v. Gutmann, 70 N.J. Super. 266 (App. Div. 1961); Fitzgerald v. Fitzgerald, 66 N.J. Super. 277 (Ch. Div. 1961). Also, the offended spouse had the right to require as a condition of marital cohabitation that defendant desist from future offensive conduct. See Wilson v. Wilson, 66 N.J. Eq. 237 (Ch. 1904). An additional modification of the obstinacy requirement was recognized where, although plaintiff was the one who actually left the home, it was nevertheless clear that the cessation of marital relations was caused by defendant's intent not to cohabit, established before the parties separated. See Jacobs v. Jacobs, 109 N.J. Super. 287 (App. Div. 1970).
The Divorce Law Study Commission, in commenting on their recommended deletion of the requirement that the desertion be "obstinate," found no apparent reason for retention of this "quaint" requirement, stating that "willful"
was an adequate adjective to describe the requisite intent of defendant. Divorce Law Study Commission, Final Report to the Governor and ...