What this means, in simpler terms, is that the person seeking the divorce should be able to establish two things – namely, the fact of desertion, and an intention to end the marital relationship, both on the part of his or her spouse.
Malicious desertion can, however, take two forms – simple malicious desertion, which occurs when the offending spouse leaves the matrimonial home, and constructive malicious desertion, which occurs when the innocent spouse is compelled to leave the matrimonial home as a result of the actions of the other. The latter situation is more difficult to establish, as it must be proven that the offending spouse made cohabitation absolutely unbearable.
Malicious desertion is a continuing offence. What this means is that it exists so long as the fact of desertion and the intention to end the marital relationship continue to exist. Where either of the above factors cease to exist, so will the possibility of claiming malicious desertion as a ground for divorce.