Death at the EU’s door

Addressing presumption of death issues may be a first step for the EU in tackling civil-status matters, writes Richard Frimston

In times of stress, I find Schubert’s String Quartet No 14 in D minor, known as Death and the Maiden, extremely calming. We have recently seen the results of the 2017 French presidential election, and are awaiting those of the UK general election and German federal elections. Which particular maidens will be chosen and how these changes will affect the EU is yet to be seen. In the interim, death seems preferable.

In the April 2017 issue of the STEP Journal,1 I flagged the arrival of Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the EU and amending Regulation (EU) No 1024/2012.2 I also raised the issue of civil status and its political sensitivity.

In the February 2016 issue,3 I wrote about missing people and the International Commission on Civil Status (ICCS),4 not to be confused with the International Conference on Composite Structures or the European Inter-regional Conference on Ceramics. The aim of the ICCS is to facilitate international cooperation in civil-status matters and improve the operation of national civil-status departments.

Thirty-four ICCS conventions have been drafted since 1956. The range of subjects illustrates the changing nature of society and deals with themes as diverse as change of name, descent of natural children, marriage abroad, acquisition of nationality, presumption of death, legitimation by marriage, statelessness, recording of names and international family registers, acknowledgement of children born outside wedlock, law applicable to names, certificates as to capacity to marry, certificates regarding differing surnames, assistance to refugees, life certificates, gender reassignment, recognition of surnames, recognition of registered partnerships and multilingual certificates.

Lack of certainty

For whatever reason, the ICCS appears to be an organisation in decline. The number of members has recently reduced; Germany, Italy and the UK have left, leaving only Belgium, France, Greece, Luxembourg, Mexico, the Netherlands, Poland, Spain, Switzerland and Turkey remaining. Thus, whether they like it or not, the Council of Europe and the EU are perhaps the only real remaining European fora for considering civil-status matters.

The Athens Convention of 14 September 1966 (ICCS Convention 10) applies if the death of a missing person can be regarded as certain. Although France and Switzerland have signed the convention, it has only entered into force in Greece, the Netherlands, Portugal, Spain and Turkey. There are no conventions in relation to missing persons whose deaths are not certain.

After the Boxing Day tsunami in 2004, the Council of Europe looked at the issues and, in 2009, produced its recommendation Principles Concerning Missing Persons and the Presumption of Death.5 It suggests a waiting period of seven years in cases of uncertainty, one year in cases of reasonable certainty, and no waiting period in the case of no uncertainty. Issues of jurisdiction and the time and effects of the declaration are also dealt with.

Seven-year issue

The effects of the current position are extremely unsatisfactory. Scotland legislated in 1977, while England and Wales did not do so until 2013. Their acts provide for the court to find that death, if uncertain, occurred at the end of the seven-year period after the missing person was last seen. Not all EU Member States have legislated, and some states have laws that provide for the seven-year period to expire after the application to court has been made. If more than one state considers itself to have jurisdiction, it is very easy for different dates of death to be established, without any mechanism for resolving the conflict.

Different dates of death can result in different succession effects; a parent or child may have died in the intervening period.

Although the variety of Member States’ legal and cultural traditions means that civil-status issues are always extremely politically sensitive and, in the current climate, it might be considered politically wise for the EU to keep its tanks off the civil-status lawn, issues in relation to presumption of death might be seen as some of the least controversial.

It would be logical and desirable for the EU to harmonise private international law in relation to many civil-status matters. However, finding any route through the existing political minefield would be very difficult. Considering issues in relation to presumption of death might be one of the easiest first steps. Whether the EU will have the time and energy to do so is another matter. Maidens, are you listening?

  • 1Richard Frimston, ‘The Path of Less Resistance’, STEP Journal, Vol 25 Iss 3 (April 2017)
  • 2bit.ly/2lzd6qs
  • 3Richard Frimston, ‘Missing, Presumed Unlucky, Lucan?’, STEP Journal, Vol 24 Iss 1 (February 2016)
  • 4In French, Commission Internationale de l’État Civil, www.ciec1.org
  • 5bit.ly/2oIIHUz

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