Justice Committee publishes report on presumption of death
24 Feb 2012 10:47 AM
New legislation is needed to make it easier for families to resolve the affairs of missing people, according to a new report by the Justice Select Committee.
The MPs want the Ministry of Justice to introduce legislation based on the Scottish Presumption of Death Act 1977. The new law should set out a single statutory process whereby a certificate of presumed death can be issued to resolve all the affairs of a missing person, in much the same way as a death certificate.
Chairman of the Committee, Sir Alan Beith MP, said:
"Families of missing people are currently confronted with a confusing, costly and emotionally exhausting legal process if they want to resolve the affairs of a loved one.
In some cases missing people have been held to have died in order to dissolve a marriage, while remaining technically alive in the eyes of mortgage lenders and other agencies."
"When Jonathan Djanogly appeared before us he indicated that the Government would listen to what we recommend carefully. We believe legislation should be brought forward in the next parliamentary session."
The law that currently relates to resolving the affairs of missing people is a "crazy paving" of statutory and common law provisions. Few police officers or solicitors have experience dealing with it - because the cases are relatively rare - and there is no formal guidance. This makes it expensive and time consuming for families to find out what they need to do.
The complex legal landscape means that families often have to pay to pursue multiple proceedings before everything is resolved. A court order stating the missing person is presumed to have died will resolve the issue that is the point of the application, but not others. For example, an order sought to pay out life insurance could not then be used to put an end to a joint mortgage. This can prove costly for families.
Since the Scottish Presumption of Death Act was passed in 1977 only one person subject to an order under it has reappeared, while around four of five orders are made per year. The Committee believes this is a compelling argument that the legislation provides a clear, robust court process to resolve the question of whether a missing person should be presumed alive or dead.
Sir Alan added:
"We do not agree with Government Ministers who claim the system is working ‘adequately.
The evidence we have heard from families faced with the problems of resolving these affairs is overwhelming. The law needs to be changed.
The Government owes it to these families to look at this issue again very carefully before it responds to our report.”
The Committee expects the Ministry of Justice to return to the Private Member’s Bill on the presumption of death introduced in 2009 by Tim Boswell MP (now Lord Boswell of Aynho), which had widespread political support.
The report also recommends that the Government introduces provision for 'guardianship' orders to protect the financial position of the missing person or his or her dependants. A new Presumption of Death Act in England and Wales, on the model of the Scottish Act, would only allow an application for a presumption of death order after seven years. During this period a guardianship provision would allow families to maintain the person’s estate by cancelling direct debits such as gym membership, pay off any debts, and provide maintenance for the missing person's dependents, if necessary.
The Ministry of Justice should also develop guidance for families on the law and processes in this area. Easily available guidance from the Government would help families to begin navigating the system. And guidance for industry on the best way to resolve a missing person's affairs - and how to communicate with the family - would alleviate at least some of the difficulties relatives currently face.