Civil Law (Presumption of Death) Act 2019

Cited as:IR No. 23/2019
Jurisdiction:Ireland


Civil Law (Presumption of Death) Act 2019

2019 23

An Act to provide for the civil status of a missing person where the circumstances of his or her absence leads to a presumption of death; and to provide for related matters.

[10 July 2019]

Be it enacted by the Oireachtas as follows:

1 Preliminary and General

PART 1

Preliminary and General

S-1 Short title, collective citation and commencement

1 Short title, collective citation and commencement

(1) This Act may be cited as the Civil Law (Presumption of Death) Act 2019.

(2) The Civil Registration Acts 2004 to 2018 and Part 3 may be cited together as the Civil Registration Acts 2004 to 2019.

(3) This Act (other than Part 3) comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or provisions.

(4) Part 3 comes into operation on such day or days that the Minister may, after consultation with the Minister for Employment Affairs and Social Protection, appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

S-2 Interpretation

2 Interpretation

2. In this Act—

“Act of 2010” means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“applicant” shall be construed in accordance withsection 4;

“civil partner” means a person in a civil partnership or legal relationship to which section 3 of the Act of 2010 applies;

“cohabitant” means a cohabitant within the meaning of section 172(1) of the Act of 2010;

“Court” shall be construed in accordance withsection 10;

“Minister” means the Minister for Justice and Equality;

“missing person” means 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.

S-3 Expenses

3 Expenses

3. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

2 Presumption of Death Orders and other matters

PART 2

Presumption of Death Orders and other matters

S-4 Persons who may apply for orders under this Act

4 Persons who may apply for orders under this Act

4. The following, in this Act referred to as the applicant, may apply for an order provided for in section 5

(a) the spouse or civil partner of the missing person,

(b) the cohabitant of the missing person,

(c) any other family member of the missing person, including a child, grandchild, parent, grandparent, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece of the missing person,

(d) a person who is acting inloco parentis to the missing person,

(e) a dependant of the missing person, or

(f) any other person with a sufficient interest including, where relevant, the Attorney General or other person acting on behalf of the State.

S-5 Presumption of death order in respect of missing person

5 Presumption of death order in respect of missing person

(1) An applicant may, subject to the conditions in this section, apply for a presumption of death order in respect of a missing person.

(2) An application for a presumption of death order shall be grounded on an affidavit by the applicant and shall contain the following:

(a)

specific evidence tending to indicate that the missing person is dead, including—

(i) the circumstances surrounding the disappearance of the missing person,

(ii) absence of communication with people who would be likely to hear from the missing person, including last known correspondence or communication, and

(iii) the length of time since the disappearance;

(b)

the date when the missing person was last heard from;

(c)

evidence of advertising for information concerning the whereabouts of the missing person, including where relevant by using the internet and social media (unless there are exceptional reasons for not doing so, explained by the applicant);

(d)

where relevant and practicable, evidence from a searching organisation that confirms that attempts were made to locate the missing person but were fruitless;

(e)

the full background relating to the disappearance of the missing person, including the missing person’s age and health (including mental health);

(f)

where relevant and practicable, evidence of corroboration from a family member of the missing person (if the applicant is not a family member);

(g)

where relevant, the next-of-kin entitled to distribution of the assets of the missing person on his or her death;

(h)

a declaration by the applicant of his or her belief that the missing person is dead;

(i)

the required particulars contained in Part 5B of the First Schedule to the Civil Registration Act 2004 that are available to the applicant.

(3) A presumption of death order may be made by the Court where the Court is satisfied that, in respect of the missing person, the circumstances of the person having gone missing indicate that his or her death is—

(a)

virtually certain, or

(b)

highly probable.

(4) In determining whether a presumption of death order is to be made under this section, the Court shall take into account all the circumstances surrounding the disappearance and absence of the missing person, including the following:

(a)

the time, location, and circumstances of the disappearance;

(b)

where relevant, the abandonment of valuable property;

(c)

where relevant and practicable, the extent and nature of post-disappearance searches;

(d)

the presence or absence of a motive for the missing person to remain alive but disappear;

(e)

where relevant, evidence suggesting that the disappearance was a consequence of foul play;

(f)

where relevant, the time between a life assurance policy being obtained on the life of the missing person and his or her disappearance;

(g)

where relevant, any prior history of fraud involving the missing person.

(5) (a) Without prejudice to the rebuttable presumption in paragraph (b), and subject to the requirements of this section, an application for a presumption of death order may be made—

(i)

where the application is to the effect that death is virtually certain, at any time after a person has gone missing, such application not to be subject to a minimum waiting period, and

(ii)

where the application is to the effect that death is highly probable, no earlier than 1 year after the person has gone missing.

(b)

Where, by reason of absence from the State or otherwise, it remains uncertain for a period of at least 7 years as to whether a missing person is alive, it shall continue to be presumed that the person is dead.

(6) (a) Where the Court makes a presumption of death order and is satisfied that the missing person has died on a specific date, the order shall include a finding as to the date and time of death and, where it is uncertain when, within any period of time, the missing person died, the order shall provide that he or she died at the end of that period.

(b)

Where the Court makes a presumption of death order and is satisfied that the missing person has not been known to be alive for a period of at least 7 years, the order shall include a finding that the missing person died at the end of the day occurring 7 years after the date on which he or she was last known to be alive.

(7) Where the Court makes a presumption of death order, that order shall include those required particulars contained in Part 5B of the First Schedule to the Civil Registration Act 2004 that are available to the Court.

S-6 General effects of presumption of death order

6 General effects of presumption of death order

(1) Subject to this Act, where—

(a)

an appeal is not brought against the making of a presumption of death order within the time allowed for appeal, or

(b)

an appeal against such an order is brought and the appeal (or any further appeal) is dismissed or withdrawn,

a presumption of death order made by the Court under section 5 has the same effect in law as arises from the registration of a death under section 13(1)(d) of the Civil Registration Act 2004.

(2) (a) A presumption of death order made by a Court under section 5 has the effect that a marriage with the missing person has come to an end.

(b)

A presumption of death order made by a Court undersection 5 has the effect that a civil partnership with the missing person has come to an end.

S-7 Insurance against claims

7 Insurance against claims

(1) Where an order has been made under section 5, the person who applied under that section shall, unless the Court otherwise directs, as soon as may be effect a policy of insurance in respect of any claim which may arise by virtue of an order under section 8.

(2) Any premium payable by the person who applied under section 5 in respect of a policy of insurance effected under subsection (1) shall be a proper charge on the estate of the missing person.

(3) Where an order has been made under section 5, an insurer may, before making payment of any capital sum (other than in respect of an annuity or other periodical payment) to any person as a result of such order, require that person to effect in his or her own name for the benefit of that insurer a policy of insurance to satisfy any claim which that insurer may establish in the event of an order under section 8 being made.

S-8 Persons who may apply for a variation order and consequences of return of missing person

8 Persons who may apply for a variation order and consequences of return of missing person

(1) The following persons may apply to the High Court for an order, in this Act referred to as a “variation order”, dissolving or varying the effects of any order made under section 5, that is to say—

(a)

a missing person in respect of whom an order has been made undersection 5, and

(b)

an applicant.

(2) Subject to the provisions of this section, a variation order shall not have any effect on rights...

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