Application for Order
The Civil Law (Presumption of Death) Act 2019 provides for the civil status of a missing person where the circumstances of his or her absence leads to a presumption of death. A missing person is defined as an individual whose existence has become uncertain, because he or she has disappeared without trace and there are no signs that he or she is alive.
The persons, “the applicant”, who may apply for a presumption of death include the spouse, civil partner or cohabitant and other family members of the missing person.
An application may be made for a presumption of death order in respect of a missing person. An application for a presumption of death order is grounded on an affidavit by the applicant. It includes
- details relating to the evidence tending to indicate that the missing person is dead;
- evidence of advertising for information concerning the whereabouts of the missing person, and the full background relating to the disappearance of the missing person.
The applicant must make a declaration of his or her belief that the missing person is dead.
All affected parties are put on notice as to the making of applications for presumption of death orders or variation orders in order to avoid any injustice which might ensue if an application were to be made and an order granted in the absence of such parties.
A presumption of death order may be made by the Court where it is satisfied that the circumstances of the person having gone missing indicate that his or her death is either virtually certain or highly probable.
The court shall not make a presumption of death order or a variation order unless it is satisfied that notice of the relevant application has been served on any person who may be affected by the making of the order.
In determining whether a presumption of death order is to be made, the Court shall take into account all the circumstances surrounding the disappearance and absence of the missing person which include the time, location, and circumstances of the disappearance and the presence or absence of a motive for the missing person to remain alive but to disappear.
Time of Application
The legislation sets out the point in time at which an application for a presumption of death order may be made. Where the application is to the effect that death is virtually certain, such an application may be made at any time after a person has gone missing. If an application is to the effect that death is highly probable, an application for a presumption of death order can be made no earlier than 1 year after the person has gone missing.
There is a rebuttable presumption that where it remains uncertain for a period of at least 7 years as to whether a missing person is alive, it continues to be presumed that the person is dead.
The presumption of death order has the same effect in law as arises from the registration of a death. A presumption of death order has the effect of ending a marriage or civil partnership with the missing person.
Insurance Re Return
The applicant may effect a policy of insurance in respect of any claim which might arise from a variation order. It further provides that the insurance premium in question should be a charge on the estate of the missing person.
An insurer may, before making payment of a capital sum to any person as a result of a presumption of death order, require that person to effect a policy for the benefit of the insurer to satisfy any claim which that insurer may establish in the event of a variation order being made.
Effect of Return
The Act deal with the return of a formerly missing person in respect of whom a presumption of death order has been made. Either such a missing person, or an applicant, may apply to the High Court for an order, a “variation order”, dissolving or varying the effects of a presumption of death order.
While a presumption of death order has the effect of ending a marriage or civil partnership to which the missing person was a party.Either party to that marriage or civil partnership can apply to the High Court for a declaration which, if granted, would have the effect of treating the marriage or partnership with a formerly missing person as one where a decree of divorce or a decree of dissolution had been granted.
This declaration would not have the effect of reviving the marriage or partnership, nor would it impact upon the status of any new marriage or partnership entered into. However, the provision would allow the parties to effectively engage with existing family law arrangements such as maintenance or access to children.
The court has broad discretion in relation to modifying or restricting the effect of its order. Any declaration will only apply from the date a variation order is granted, and, other than in exceptional circumstances, an application for the declaration referred to above should be brought at the same time as an application for a variation order.
Other than in exceptional circumstances, an application for a variation order cannot be made after the expiry of a period of seven years from the making of a presumption of death order.
In general, the Circuit Court and the High Court shall have concurrent jurisdiction to hear and determine proceedings relating to an application for a presumption of death order. Where the market value of any land to which an application for a presumption of death order relates exceeds €3,000,000, the Circuit Court shall, on application by any person having an interest in the proceedings, transfer the proceedings to the High Court. Any declaration or decision made in the course of such proceedings before the transfer shall be valid unless discharged or varied by the High Court.
The High Court shall have exclusive jurisdiction to hear and determine proceedings for a variation order. The High Court will also have jurisdiction where the Attorney General or a person acting on behalf of the State is the applicant