A v H (Presumption of Death) (rev 1)

Under the Presumption of Death Act 2013, the court may make a declaration where a person has either died or has not been known to be alive for at least seven years. The applicant must establish standing, the required connection with England and Wales, and compliance with reasonable tracing, notification, advertising and family-communication steps. Where death is probable but no specific fatal incident is established, the safer basis may be that the person has not been known to be alive for seven years. The presumed date of death is then calculated in accordance with the statutory period.

The claimant sought a declaration concerning his wife, who had disappeared after the couple became separated during the Somali civil war. He had not heard from her since 1998 despite repeated attempts to trace her through personal travel, correspondence, money transfers and community networks. He believed that she might have died while attempting to travel from Djibouti to Yemen.

The defendant did not attend or participate. The central questions were whether the statutory requirements for a declaration were met, whether the claimant had taken the required steps to notify interested persons, and the date on which the defendant should be presumed to have died.

1. The application was granted. The court was satisfied that the claimant had standing as the defendant’s spouse, was habitually resident in England and Wales, and had established the marriage despite the absence of a marriage certificate.
2. The statutory test was satisfied because the defendant had not been known to be alive for at least seven years. The evidence also made it more likely than not that she had died, but there was no particular incident or identified group disappearance proving the date or circumstances of death. The declaration was therefore made on the safer statutory basis of prolonged absence without being known to be alive.
3. The claimant had taken all possible steps reasonably available to him to trace the defendant. These included attempts to send money and correspondence, efforts to obtain a visa and travel to the region, searches in Yemen, contact with community networks and communications through the Somali community in the United Kingdom.
4. The notification requirements under Practice Direction 57B to the Civil Procedure Rules 1998 were met. There were no other known family members apart from the defendant and the child, and an advertisement had been placed in a newspaper circulating in Djibouti without response.
5. The presumed date of death was calculated as midnight on 30 January 2005, being the last day of the seventh year from and including 31 January 1998, the last month in which the claimant had seen the defendant. The declaration was to take effect on 12 April 2015 unless an appeal was lodged by that date and was conclusive as to the presumed date and time of death.

Not stated in the judgment.