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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10401
Experience:  I have been practising for 30 years.
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If my wife leaves the marital home for a number of days

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If my wife leaves the marital home for a number of days leaves the children with their friends and commits adultery does this constitute abandon?

Are you looking at this from the point of abandoning the children or abandoning the marriage? What do you ultimately want to achieve?

Customer: replied 1 year ago.
Can I throw her out of the house for abandoning the marriage and can I assume responsibility for the children if she has farmed them out to their friends. She has gone overseas.

My name is ***** ***** I have been a solicitor for more than 30 years

No this does not amount to abandonment - but it does amount to Unreasonable Behaviour and as such can be a ground for divorce.

You can certainly recover the chidlren from the people she has left them with - but you cannot exclude her from the property I am afraid.

I hope that this is of assistance - please ask if you need further details

In a nutshell, no you cannot throw her out of the house. It is the marital home and she is free to come and go as she wishes and that includes if she decides to return.

As part of the divorce proceedings or legal separation proceedings you can ask for an occupation order whereby you live in the house with children and she is excluded but you can’t do that until you start those proceedings. Would be different if there was an allegation of domestic violence but not purely because she has done a runner.

If she has given the children to one of her friends to look after, they have no right to do that and you are entitled to have the children and look after them yourself. If whoever has the children will not let you have them, go to the police because that is abduction. If the police will not get involved, then you need to make an emergency application to court to get a court order to make whoever has the children give them back to you.

Can I clarify anything arising from this?

I am happy to answer specific questions arising from this?

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Best wishes.


Customer: replied 1 year ago.
She intends to go off with her new man and commit adultery. she has denied normal marital relations. Is this not constructive abandonment? How am I expected to have her back in the same house?

There is no concept of constructive abandonment. The grounds for divorce are that you have lived apart for 2 years and you both consent to the divorce or you have lived apart for 5 years if neither of you consent.

You can get divorced for desertion if your wife is deserted you for more than two years without your agreement and without good reason. The reality is that desertion and living apart the 2 years are almost the same.

It is very difficult to prove adultery unless she admits to it. She can always say that it is a purely platonic relationship with the new man.

What you do have here of course are probably enough grounds based upon previous conduct and I am sure conduct which you have not mentioned to me, to get divorced for unreasonable behaviour.

At this stage in time, you are not divorced, you have not started divorce proceedings and she is just as entitled to live in the house as you are. She could even bring her new boyfriend to live in the house with you although, when she is not there, could ask him to leave. That, once again would be grounds for unreasonable behaviour you do not have grounds at this stage to exclude her from the house. Sorry

F E Smith, Advocate
Category: Law
Satisfied Customers: 10401
Experience: I have been practising for 30 years.
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Customer: replied 1 year ago.
If the children aged 16,14 and 12 ask and agree, can I take them with me to my father's house?

The correct way of doing it is to apply to court for a Child Arrangement order, details of which you will find here.

if the 14-year-old and 16-year-old want to live with you, would not be a good idea for the child’s mother contest that because the court are unlikely to go against those children’s wishes at that age unless there is some compelling reason why you would not be a good parent. At 12 years of age, the court would take into account the child’s wishes although it is unlikely to separate siblings.