Can I get a divorce on ground that my spouse is missing and presumed dead?
If you allege that there are reasonable grounds to suppose that your spouse is dead, you may present a petition:
- to have it presumed that your spouse is dead;
- to a divorce.
If the court is satisfied that such reasonable grounds exist, it may make a decree nisi of presumption of death and of divorce
You have to state the following details in your divorce petition:
- last know address or location and occupation of your spouse;
- the address where you and your spouse last live together as husband and wife;
- the circumstances in which both of you stopped living together;
- the date and location where your spouse was last seen or heard of; and
- steps you have taken to find your spouse. For example, contacting relatives, friends, banks, Employees Provident Fund and previous employers
to support your application. You should also include other relevant details about the presumption of death on which you rely.
The fact that for a period of more than seven (7) years, your spouse has been continually absent from you and that you have no reason to believe that your spouse has been living within that time, is evidence that your spouse is dead unless proven otherwise.
||The seven year rule is a method of establishing that your spouse is dead and not the date of your spouse's death.
To show that your spouse is a missing person, circumstances of the disappearance of your spouse will be considered, for example a shipping disaster, plane crash, severe weather condition, and kidnapping.
In deciding the question whether your spouse is dead at a given time on all the evidence available, the court will consider whether because of
- the circumstances in which your spouse was last seen
- the enquiries made at the time
it is more likely than not that the death occurred at a date earlier than the expiration of seven (7) years, for example the date of disappearance.
Every decree nisi
of presumption of death and of divorce is a decree nisi
in the first instance.
||You can use the decree nisi of presumption of death and of divorce for remarriage, but not to obtain a death certificate, ancillary relief or for probate purposes.
You may apply for a decree absolute after the expiration of three (3) months from the date the decree nisi
is granted. When a decree of divorce is made absolute, your marriage is dissolved and you can marry again.
||Section 63 of the Law Reform (Marriage and Divorce) Act 1976 [Act 164]
63. Proceedings for decree nisi of presumption of death and divorce.
(1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is and to have the marriage dissolved, and the court, if satisfied that such reasonable grounds exist, may make a decree nisi of presumption of death and of divorce.
(2) In any such proceedings the fact that for a period of seven years upwards the other party to the marriage has been continually absent from the petitioner, and the petitioner has no reason to believe that the other party has been living within that time, shall be evidence that he or she is dead until the contrary is proved.
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