Where separation for the requisite period has been proven by the plaintiff and the other party claims justification for such action, the burden rests upon that party to prove consent or a reasonable cause. Larsen v. Larsen, 184 Pa. Super. 221, 132 A.2d 883; Mertz v. Mertz, 119 Pa. Super. 538, 180 A. 708. Where a desertion appears and is without legal reasonable cause, it is presumed to be willful and malicious. Tatem v. Tatem, 164 Pa. Super. 307, 64 A.2d 514; Salakas v. Salakas, 162 Pa. Super. 114, 56 A.2d 357. The next consideration is whether the wife had reasonable cause to remain away or whether the plaintiff consented to the separation.

The adultery of appellant committed within the two year period and persisted in until the present time bars his right to a divorce. Stanziola v. Stanziola, 361 Pa. 209, 64 A.2d 807. Cf. Tatem v. Tatem, 164 Pa. Super. 307, 64 A.2d 514; Litch v. Litch, 89 Pa. Super. 15; Freedman, Marriage Divorce, § 250, p. 643. Decree affirmed.

His conclusion was based upon glaring contradictions, inherent improbabilities, and the appearance and demeanor of defendant and her witnesses, and his judgment on that score is entitled to highest consideration. Smith v. Smith, 157 Pa. Super. 582, 43 A.2d 371; Tatem v. Tatem, 164 Pa. Super. 307, 64 A.2d 514. Upon defendant's exceptions, the master's report was analyzed in an exhaustive and critical opinion by able Judge MACNEILLE, and little can be added to his lucid exposition. The parties were natives of Italy. At the time of the hearing he was 71 years old; she 50; and both had been previously married.

The present action is not controlled by those cases where the immoral conduct or adultery of a spouse occurred after the consummation of the grounds for a divorce. Cf. Deutsch v. Deutsch, 141 Pa. Super. 339, 14 A.2d 586; Tatem v. Tatem, 164 Pa. Super. 307, 312, 64 A.2d 514; Gabriel v. Gabriel, 3 Pa. D. C. 607, 613. The determinative factor of most divorce actions is the credibility of the witnesses.

"The malice of the desertion arises from its being the perverse act of the one, in refusing the performance of the matrimonial obligations and duties, which the other has the legal right to require": Kelly v. Kelly, 51 Pa. Super. 603, 608. "The withdrawal by the wife from the common domicile and cessation of marital relations imposed upon her the burden of proof to establish by the preponderance of the evidence facts that would entitle her to a decree of divorce (citing cases) or that the separation was by consent": Ewing v. Ewing, 140 Pa. Super. 448, 449, 14 A.2d 149. "The defense of a separation with the consent of libellant is affirmative and the burden of proof to establish that fact by satisfactory evidence is on the respondent (citing cases)": Hagen v. Hagen, 159 Pa. Super. 539, 541, 49 A.2d 193; Tatem v. Tatem, 164 Pa. Super. 307, 312, 64 A.2d 514. However, the reason of the rule ceases where the libellant by his own evidence shows such consent to a separation as to negative a wilful and malicious desertion by the respondent.