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Friday, 6 July 2012

Presumption of Death - tipping the balance

Dealing with the loss of a loved one can be one of the worst things any of us have to face. The emotional trauma is often made worse by the legal complexities that you have to deal with.

All of this is aggravated when a person goes missing, particularly in England and Wales. Under the law as it stands a person’s family has to wait years before they can be presumed dead by the courts. 

This means that there cannot even begin to be closure until many years have passed. It also means that all sorts of other issues from finances to new relationships are effectively in no man's land. Mortgages linked to life policies cannot be paid off. 
Today’s Guardian highlights the case of Manic Street Preachers’ Richey Edwards who went missing in 1995 but was not declared dead by the court until 2008 – 

His is a high profile case but many family members have to go through a similarly painful and drawn out process. 

This is a law that has been crying out for reform for decades. The proposals follow a report earlier this year from a parliamentary committee which said –

 "The evidence we have heard from families faced with the problems of resolving these affairs is overwhelming. The law needs to be changed.”

It is encouraging therefore that the government has announced plans to introduce legislation which will make things simpler. The plan is that it will be possible to obtain a Certificate of Presumption of Death far earlier. The announcement does not actually say how much earlier. In Scotland it is possible to obtain such a certificate after seven years. Even this seems to be too long and four years would probably suffice

This will not in any way ease the pain and uncertainty suffered by loved ones but it will at least ease the added burden of bureaucracy and uncertainty.

The fear is that matters will become complicated if a person re-appears. But there should be a balance here. In reality it is an extremely rare occurrence – in Scotland there has been one re-appearance in over 30 years. If this is balanced against the hardship suffered by families the case is really overwhelming. 

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