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Home > Judgments

EA v NA [2018] EWHC 583 (Fam)

Judgment of Keehan J granting a declaration under the Presumption of Death Act 2013

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IN THE HIGH COURT OF JUSTICE No. FD17F001100
FAMILY DIVISION

[2018] EWHC 583 (Fam)
 

Royal Courts of Justice

Friday 2nd March 2018


Before:

MR JUSTICE KEEHAN


B E T W E E N :

EA
 Claimant
- and -
NA Defendant
__________

THE CLAIMANT appeared in Person via telephone link
THE DEFENDANT did not attend and was not represented.
__________

J U D G M E N T
MR JUSTICE KEEHAN:

1. By a claim issued on 31st October 2017, the claimant, Mrs EA, seeks a declaration under the Presumption of Death Act 2013 in relation to the defendant, Mr NA, her husband.  Mrs A claims that Mr A has either died or, alternatively, has not been known to be alive for a period of at least seven years.  The history given by Mrs A in sworn evidence before me today and supported by some documentary evidence is a very sad.

2. Mrs A and Mr A met in Lincolnshire in this country.  They married on 11th January 2005 in Boston, Lincolnshire.  Mrs A tells me and I accept that they lived together on and off over a period of years.  When not living with her in Boston, Lincolnshire, Mr A returned to live with his family in Nottingham where he worked illegally he not having leave to remain in this jurisdiction.

3. Mrs A loved Mr A and persisted in the relationship with him.  She tells me, and I accept, that she went to considerable lengths to obtain leave for him to remain in this jurisdiction on the part of Mr A and he was subsequently able, with her assistance and her paying the costs, to obtain a British Passport.  He obtained that passport at the end of 2009.  Very sadly for Mrs A that marked him leaving her. 

4. Since December 2009, Mrs A has neither seen nor heard from Mr A at all.  She made attempts to trace him by using various different social media but that revealed nothing.  She made extensive enquiries, as I accept, of Mr A's family in Nottingham but they gave her no information other than to tell her that Mr A had gone back to Iraq: he is a citizen of that country.

5. Mrs A told me and I accept that she had never met and did not know Mr A's family in Nottingham and therefore was unable to pursue matters any further.  She tells me that at the beginning of 2010, but she cannot remember the precise date, a person who purported to be a relative of Mr A's contacted her by telephone to tell her that Mr A had died in Iraq and had been buried in accordance with local custom within two hours of his death.  She was not given any details of how he died, where he died, or the date upon which he is said to have died.  Mrs A now seeks the declaration under the 2013 Act that Mr A is presumed to be dead.

6. In accordance with the requirements of the Act and the Civil Procedure Rules, Part 57, on 7th February 2018, Mrs A placed an appropriate advertisement in the Nottingham Post newspaper being a newspaper covering the area where Mr A was last known to reside with his family.  She has received no contact from any individual in consequence of that advertisement placed in the Nottingham Post.

7. The relevant provisions of the Presumption of Death Act 2013, for the purposes of this application, are as follows;

s.1(1) This section applies where a person who is missing-

(a) is thought to have died, or

(b) has not been known to be alive for a period of at least 7 years.

(2) Any person may apply to the High Court for a declaration that the missing person is presumed to be dead.

(3) The court has jurisdiction to hear and determine an application under this section only if-

(a) the missing person was domiciled in England and Wales on the day on which he or she was last known to be alive,

(b) the missing person had been habitually resident in England and Wales throughout the period of 1 year ending with that day, or

(c) subsection (4) is satisfied.

(4) This subsection is satisfied if the application is made by the spouse or civil partner of the missing person and-

(a) the applicant is domiciled in England and Wales on the day on which the application is made, or

(b) the applicant has been habitually resident in England and Wales throughout the period of 1 year ending with that day.

(5) The court must refuse to hear an application under this section if-

(a) the application is made by someone other than the missing person's spouse, civil partner, parent, child or sibling, and

(b) the court considers that the applicant does not have a sufficient interest in the determination of the application.

(6) This section has effect subject to section 21(2).

s.2(1) On an application under section 1, the court must make the declaration if it is satisfied that the missing person-

(a) has died, or

(b) has not been known to be alive for a period of at least 7 years.

(2) It must include in the declaration a finding as to the date and time of the missing person's death.

(3) Where the court-

(a) is satisfied that the missing person has died, but

(b) is uncertain at which moment during a period the missing person died,
the finding must be that the missing person is presumed to have died at the end of that period.

(4) Where the court-

(a) is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but

(b) is not satisfied that the missing person has died,
the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day after the day on which he or she was last known to be alive.

8. On the evidence of Mrs A I am satisfied that she was domiciled in England and Wales on the day on which this application was issued and she has been habitually resident here throughout the period of 1 year ending with the date of this application: s.1(4) of the 2013 Act.

9. It is no criticism of Mrs A, but the nature of the information received that Mr A had died is somewhat circumspect.  The identity of the individual is not known and little detail was given of the circumstances in which or when Mr A died.  However, in accordance with s.2(4) of the 2013 Act, if I am not satisfied that the missing person has died but I am satisfied that this missing person has not been known to be alive for a period of at least seven years,  I may find  and declare that Mr A is presumed to have died at the end of the period of seven years beginning with the day after the day on which he was last known to be alive.  For these purposes, I take the date when he was last known to be alive to be 31st December 2009 and he has not been known to be alive between that date and today, 2nd March 2018. I therefore declare that Mr A is presumed to have died on 1 January 2017. Therefore I grant Mrs A a declaration of presumed death as sought by her.
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This transcript has been approved by the Judge