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Civil Law (Presumption of Death) Bill 2016 [Seanad]: Second Stage (Continued)

Tuesday, 12 March 2019

Dáil Éireann Debate
Vol. 980 No. 7

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(Speaker Continuing)

[Deputy Charles Flanagan: Information on Charles Flanagan Zoom on Charles Flanagan] There is no minimum waiting period where the missing person's death can be taken as certain but the body cannot be recovered. For those whose death is likely, a minimum waiting period of a year is specified.

Another significant issue, which was addressed during the debate in the Seanad, concerned the effect of a presumption of death order on a marriage or civil partnership involving a missing, presumed dead, person. The policy of the Government is that a presumption of death order should be conclusive insofar as the end of a marriage or civil partnership is concerned. This policy is reflected in section 6 of the Bill. However, it is necessary to address unlikely or even improbable scenarios, which in this case are the implications of the return of a formerly missing person in respect of whom a presumption of death order had been made and who was married or in a civil partnership at the time of the making of that order. The Bill, in section 8, now provides that either the formerly missing person or the person who was left behind 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. The court is given a broad discretion in relation to modifying or restricting the effect of its order. I must emphasise that any court order would not have the effect of reviving the marriage or partnership, nor would it have any impact on the status of any new marriage or partnership which might exist. However, the provision will allow the parties to effectively plug into existing family law arrangements concerning matters such as maintenance and access. Legal advice received was to the effect that a provision of this nature would make a successful constitutional challenge less likely than the more absolute approach of simply bringing the marriage or partnership to an end without any provision being made to address the consequences of that ending.

Section 4 of the Bill lists those persons who may apply for an order under its provisions. The same list of persons may also apply for a variation order under section 8 along with the missing person in respect of whom a presumption of death order was made. Specific provision is made for a half-brother or a half-sister to be an applicant. This coheres with the provision in the Northern Ireland legislation in relation to applicants who are close relatives in the context of the disappeared, and seems sensible in any event.

Explicit reference to a "creditor" as an applicant has been deleted. By way of background, in none of the legislation in comparable jurisdictions, including England and Wales, Northern Ireland and New Zealand, is there an explicit reference to a "creditor" as an applicant and I have formed the view that such a reference might be misinterpreted. Deletion of the reference to creditor does not, of course, preclude a creditor who feels he or she can demonstrate a sufficient interest in the matter from making an application for an order if the creditor can demonstrate that he or she has a sufficient interest. Provision has also now been made in section 9 for all affected parties to be 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 a presumption of death order or a variation order granted in the absence of such parties.

A number of amendments were also made to ensure coherence with the existing arrangements which apply in respect of the registration of life cycle events in accordance with the Civil Registration Act 2004. These amendments were developed in close co-operation with the Department of Employment Affairs and Social Protection and will facilitate registration of a presumed death in a new register of presumed deaths which is to be established under Part 3 of the Bill. The new register will be part of the suite of civil registers maintained by the Registrar General.

As part of these amendments, an obligation is placed on the court in section 5 to include, in the presumption of death order, the particulars available to it which are necessary for the registration of a presumed death in the new register. Provision is also made for an entry in the register of presumed deaths to be removed or deleted in accordance with the terms of any variation order which may be granted. The amendment also provides for the removal of an entry from the new register where the body of a person for whom an entry has been made on the register has been recovered and an entry has been made in the register of deaths or the record of deaths abroad in respect of that person.

Deputies will have noted that the Bill, as presented, gave a role to both coroners and courts in relation to matters covered by it. The Bill in its current form reflects the view that presumption of death orders should only be made by a court and that other, associated matters should also be dealt with by a court. This is consistent with the position which has been taken in other jurisdictions. Accordingly, I do not envisage any role for coroners in relation to the granting of presumption of death orders and all references to the Coroners Act 1962 or to coroners have been deleted from the Bill.

The final substantive series of amendments which were accepted in Seanad Éireann concern jurisdiction and are set out in section 10. As I said, I am of the view that presumption of death orders should only be made by a court and that other, associated matters should also he dealt with by a court. The Circuit Court will have concurrent jurisdiction with the High Court to deal with applications for presumption of death orders. Once such an order has been made, and the time allowed for appeal has expired, the order has the same effect in law as arises from the registration of a death under section 13 of the Civil Registration Act 2004. This means that a death certificate can be issued which, in turn, will allow for the distribution of the estate and the payment of any life assurance policy which may exist. However, it is proposed that an application for an order varying a presumption of death order can be made to the High Court only. The reason for this is that such cases are likely to be extremely rare and if they occur, they may well give rise to difficult and novel legal issues. The High Court will also have jurisdiction where the Attorney General or a person acting on behalf of the State is the applicant, again because of the likely rarity and complexity of such cases.

The jurisdiction provisions now also take account of the fact that, where land is concerned, the jurisdiction of the Circuit Court is determined by market value rather than rateable valuation. The monetary threshold of that market value is currently set at €3 million. The jurisdiction of the Circuit Court has also been expanded to allow for its exercise by a judge of the circuit in which the applicant ordinarily resides. Previously, jurisdiction was confined to the circuit in which the missing person ordinarily resides. This revised approach is consistent with that taken in other jurisdictions. Finally as regards this matter, a residual jurisdiction criterion based on domicile is also provided to allow the High Court to take jurisdiction in an appropriate case when no other jurisdiction criteria exist. There is also a jurisdictional rule to cater for the disappeared when no other rule is available to the applicant. This might arise where the applicant had no connecting factor, whether by way of residence or domicile, with the State.

I stated at the outset that I hoped to see the Bill enacted by the end of the year. This is a sensitive topic which, fortunately, only affects a very small number of people. However, the size of the affected group does not diminish in any way the pain and emotional distress for those who have to live with the disappearance of a loved one. Their turmoil may well be compounded by the many practical difficulties which have to be faced in the aftermath of the person's disappearance. The Seanad Stages of the Bill have demonstrated that there is a significant degree of support for legislation in this area. We owe it to the small group of people who are affected by the disappearance of a loved one to advance this Bill as quickly as possible to do what we can to alleviate their pain, suffering and distress.

At the core of the Bill is the ability to apply for a presumption of death order when a person goes missing. The protection offered to a missing person who subsequently reappears is the ability to apply for a variation order. The Bill is both balanced and compassionate. I look forward to hearing the views of Deputies on its provisions and commend it to the House.

Deputy Fiona O'Loughlin: Information on Fiona O'Loughlin Zoom on Fiona O'Loughlin Before I speak about the provisions of the Bill, I am mindful of the plight of those whose loved ones have gone missing over the years. I think especially of the families of Deirdre Jacob and Trevor Deely in County Kildare, my home county, and the pain, heartbreak and emotional stress they go through every day. Every time we see a poster in a city or town here or abroad featuring photographs of people who are missing and pleas from families seeking information, we think of the hell the family is going through and how difficult it is to maintain some type of normal life. It is important that families who find themselves in this position have a legal opportunity to get certain affairs in order. That is where the Bill comes in.

Fianna Fáil will support the Bill, as we supported a similar Bill in the Seanad in 2013.

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