Presumed dead after 7 years, remarriage, children etc - then they return. What happens?

[HmmmCat]

I’ve been reading Far From the Madding Crowd, and it made me wonder…

Say a person disappears and is legally presumed dead, their spouse remarries, has more children and the new spouse adopts the previous children. Then the presumed dead spouse returns. What happens?

Is the new marriage annulled? In which case is the new child legally the child of the original spouse (if it was the husband who disappeared)? What about the previous children, is their adoption annulled?

And what about their estate? If it has been distributed among their heirs, can they claim it back again? What if it’s been spent?

Ooh no idea but an interesting thought!

The courts hated cases like this. And bigsmy cases which were surprisingly common in Georgian and Victorian times.

The short answer is that the children are legally the children of the parents as long as the marriage was legal at the time. So in this case the children wouldn’t be impacted (in bigamy cases they were although the courts hated making children illegitimate).

property I don’t know. Not my field

I would imagine the person declared dead would have to go to court to resolve such issues. I doubt the marriage or adoption would be annulled as it was done in good faith in the belief the person was dead. I do wonder though if there was a life insurance if they would want the money paid back?

I would think the same - if they have remarried according to the law and the missing person deliberately concealed the fact they were alive and ignored attempts to get in touch, then it's tough shit for the returned person. They shouldn't have disappeared if they care so much

What does Presumption of death order mean?

An order of the court declaring a missing person to be dead.
A presumption of death order has the effect of dissolving a marriage or civil partnership on the ground that one party is presumed to be dead. The court must be satisfied that there are reasonable grounds for believing that the other party is dead and the fact or his or her absence for a continuous period of seven years or more coupled with the Applicant having no reason to believe that the other party has been living during that time will be sufficient evidence in this regard until the contrary is proven. [Matrimonial Causes Act 1973, s. 9(1); Civil Partnership Act 2004, s 55].

The presumed dead thing is usually in circumstances where it really is believed the person is dead though - for example the ship they are in sinks and all are lost but no bodies recovered, or in a war type situation (although always the possibility of capture there).

i think it has to be a bit more than just missing for seven years.

So what if presuming them dead was completely logical, everyone waited 7 years and then by some miracle they did come back? It has happened

I think missing for seven years is enough to presume dead. There have to be no sightings and you have had to make reasonable effort to find the person, but after seven years - the state will declare them presumed dead, the r assets can be distributed? And any marriage comes to a legal end.

if they reappear later - marriage was still ended and any new marriages are valid.

It seems to be if not actually common at least it happens.

https://committees.parliament.uk/committee/102/justice-committee/news/178564/justice-committee-publishes-report-on-presumption-of-death/

a quick google throws up several examples (including a murder trial which had to be halted when the victim turned up having been abducted by someone else),

the legal consequences seem to be… problematic.

On a slight tangent, an ancestor of mine was transported to Australia in the nineteenth century. He served his sentence, did OK after that and sent to England for his wife and child. She came. With a couple of kids she’d had with her new man. I gather he didn't blame he for finding someone else when she never expected to see him again, and accepted the other children.

I don’t have any more information, but do wonder about the man left behind.

Life insurance, I hadn’t thought about that. If the ‘surviving’ spouse has claimed it, no doubt the insurers would try to reclaim it, but would they have any legal right to it? Even if the ‘presumed dead’ spouse had faked their death, if the spouse claiming the insurance had done so in good faith, would they have to return it?

And the adopted children - IIUC adoption cannot be annulled, and the bio parents lose parental responsibility and any rights as parents. So what would happen to the returned father’s status as the parent?

Adoption can be reversed actually, but I don't think this is one of the circumstances where it can happen.

regarding life insurance - didn't have the kayak guy have to pay it all back?
but that case was clear fraud.

if the wife claimed based on a coroner's (I assume) finding of death, she should be fine in that respect (in my opinion at least).

Lord Lucan springs to mind ...

My gran ran away from her abusive husband. He went yo fight in ww2 and she got married to another abusive husband citing the 7 year rule. When husband 2 had enough of her, he hired a private detective who located husband no.1. He got the marriage annulled and married someone else.

AI suggests this

If a person presumed dead returns to the UK, the High Court can vary or revoke the declaration, effectively bringing them back to life legally
. While the declaration is cancelled, assets already distributed may not be fully returned, and marriages dissolved during the absence remain ended.
Legislation.gov.uk +2
Key Consequences of Returning:
Revocation of Death Certificate: The declaration of presumed death is revoked or varied by a court order.
Property and Assets: Assets, such as house sales or money distributed to beneficiaries, may not be automatically returned. However, the court can make orders regarding the return of property.
Marriage/Civil Partnership: If the person was married, the presumption of death declaration dissolves the marriage. If the person returns, they are still divorced; the marriage is not automatically reinstated.
Legal Recognition: The person is legally recognized as alive again, requiring them to engage with authorities (likely including the police) to reverse the official records.

The process of "unravelling" the legal consequences of death requires a formal application to the court by a party with interest, such as the returned person themselves.

They did this in Jane the virgin! Idk what would happen in the uk though but I love that show!

I think presumption of death was a defence against bigamy but the second marriage would not be valid if the first husband returned.
I found a paper on this but it’s behind a paywall.
the author says that Chancery were cautious in decreeing presumption of death when they had to oversee the allocation of a missing person’s property and it could go through the courts for years. There is a case where the court gave interest from the money but not the money itself for example. The article does not mention illegitimacy except to say that children of marriages before the seven year period was up would have been illegitimate because the second marriage would be bigamous.

https://journals.sagepub.com/doi/10.1177/17438721251360773

edited to add, this is talking about the nineteenth century

but the second marriage would not be valid if the first husband returned.

I can't see why the second marriage would not be valid if entered into by both parties under the belief that the first spouse was deceased.

It's a very interesting concept to ponder about though.

There was a woman on here some time ago in a similar position (no new partner and adoption though). Her husband turned up years later and she was expected to accommodate him. She was furious. I wonder what happened there?

This exactly. Someone is declared legally dead if they are missing for 7 years, so anyone (re)marrying after this time is doing nothing wrong, and the new marriage is not illegal and does not need to be annulled. If the children are adopted by the new spouse, they are legally the father/mother. The now 'suddenly alive' person cannot suddenly make a claim on their husband or wife, or the children. Or any of the assets.

I don't understand the person saying a woman was expected to accommodate a returning husband after many years, I would tell mine to leave if he left/disappeared, and had been absent for a decade or more and just walked through the door when I had a new life, and a new partner/family. (Even if I was alone he could still go. I would be well over him by then.)

.

i used to work with a woman whose first husband was kidnapped while they were on holiday.

it was years ago, he was declared dead after 7 years. She has remarried and had children.

it’s a reasonable assumption he’s dead, but it’s not beyond doubt…

Wasn’t there a guy in a band - Manic Street Preachers? - who was missing and declared dead after 7 years? Don’t think he was married though.

@HmmmCat - Come on, 'fess up ... what are you planning?

I’ve heard that you can only start legal proceedings after 7 years and the process takes years and years so I presume it can be stopped and reversed if they turn up.