WODC: Missing persons, the regulation and legal consequences in comparative perspective

Increasing attention has been paid to the position of missing persons and the effects upon their left-behind families over the past two decades. At the European level it has resulted in the Council of Europe Recommendation on Principles concerning missing persons and the presumption of death CM/Rec (2009). In the Netherlands questions have been raised in Parliament (the Second Chamber) about the problems that left-behind families’ experience. These problems were discussed further in a round table session held at the Dutch Ministry of Security and Justice in 2016 in the context of the policy domain of aiding victims (Slachtofferbeleid). The Minister consequently agreed to carry out a comparative law study into the way other countries deal with these problems so that inspiration may be obtained as to possible solutions. This research has been carried out by the Utrecht Centre for European Research into Family Law (UCERF).

The central question of the research is: Which policies and legal regulations with respect to left-behind families and missing persons exist in the Netherlands, Belgium, Denmark, Germany, and England & Wales and can these provide a solution for the problems signalled by left-behind families in the Netherlands? Are there other possible solutions?

The primary aim of the research is to identify possible solutions that may reduce the problems experienced by left-behind families. The emphasis is on the ‘lessons that may be learned’ from comparative research. Additionally, within the Dutch perspective, other possible solutions based on propositions made in the round table session in Parliament, in literature and in the interviews held in the context of this research have been explored. The research is primarily directed at (long-term) adult missing persons in view of the fact that most ‘legal’ problems relate to this category of missing persons. The frequency of long-term missing persons in the Netherlands is estimated at approximately 100 persons per year of which approximately 50 adults.

Financial problems are the most serious problems experienced by the family of a missing person. After a short time span, the payment of his or her salary will cease while at the same time (contractual) financial obligations, for example, rent or mortgage, must still be paid. Another legal issue related to the common property of the spouses or registered partners is that permission of the missing person is required to sell the property (art. 1:88 Dutch Civil Code). This also applies when they were not married but had bought the property together (art. 3:175 Dutch Civil Code). Normally, there is no power of attorney allowing the left-behind partner to sell the property on behalf of the missing person. If the mortgage (generally monthly instalments) is not paid, the mortgage lender is likely to at a certain point initiate a forced auction. The sale at a forced auction usually generates a lower selling price than a ‘normal’ sale.

The lack of a power of attorney is also problematic in other situations, for example, with respect to ongoing contracts with third persons and other legal obligations. This concerns obligations with respect to the making of a tax return, managing bank accounts, insurance policies and terminating phone/newspaper subscriptions etc. The appointment of a guardian is not always viewed as a solution to these issues because those left-behind find that it takes a long time to arrange. Moreover, there is also the perception that the guardian can only arrange minor issues but cannot contribute to solving the major problems. It is also viewed as an invasion of privacy because the family must provide the guardian insights into the financial position of the missing person and a ‘stranger makes decisions about your personal life’. On the one hand, if the appointed guardian belongs to the inner circle of family or friends, the tasks may demand much time due to the lack of expertise.

If the partner of the missing person does not have sufficient means to provide for him/herself and (possibly) for their children, the problem is that there may not be a financial safety-net. The longer the situation continues, the more burdensome it becomes. The situation of the family depends not only on the time limits with respect to the declaration of death but also on the duration of the procedure itself.

In the Netherlands the length of the procedure concerning the declaration of death is considered problematic. There was insufficient information to be able to ascertain the length of the procedure for the other jurisdictions. However, it follows from the legal comparison that in the other jurisdictions considerable time may pass from the moment when the court has summoned and informed the missing person of the procedure at hand. In Denmark, however, specific attention has been paid to the duration of the procedure, with the intention that a declaration of death (with the six months waiting period) should be delivered within one year. This would not only be achieved by the shorter waiting period, but also by the fact that the court itself should summon the missing person rather than the applicants. In the Netherlands, a request for a declaration of death cannot be submitted until after the expiration of the one or five years’ waiting period. An alternative is to make it possible to submit the request earlier and to initiate the summons earlier so that the session takes place immediately after the expiry of the waiting period after which a declaration can be issued and registered shortly thereafter. The interests of the missing person are not disproportionately disadvantaged, as the time limits themselves are not shortened. In addition, his legal position is to a certain extent protected by the provisions on the return of the missing person. If a missing person returns, and this does not happen very often in practice, then his interests can still be protected. A shortening of the procedure provides a clear improvement for the left-behind family, as it allows them to solve the (in particular financial) problems more quickly. This is also better for third parties, because the legal status of all parties involved is clarified more quickly. This would require an amendment of the legal provision (art.1: 413 Dutch Civil Code).

When searching for solutions, and weighing the involved interests, the time limit before a declaration of presumed death can be requested plays an important role. As time passes, the interests of the left-behind family and third parties will weigh more heavily than those of the missing person. The question can be raised whether the (longer) time limit of five years should be shortened to, for example, three years or even not having a specific time limit. Modern communication and investigative means, make it easier to give or receive a sign of life. The risk of disappearing with the purpose of avoiding certain obligations is an issue that needs to be considered, but the research has not found any evidence of abuse of the legislative provision (art. 1:413 Dutch Civil Code). Moreover, there is a shift, also internationally, of placing increasing importance on the interests of the left-behind family. If there was no specific time limit, the court could be given a discretionary power to determine, at an early stage, and given the circumstances of the case, an individual waiting period tailored to the particular circumstances of the case. The advantage of tailor-made solutions goes hand in hand with the disadvantage of less legal certainty due to the court not being bound by fixed time limits. The number of missing persons cases is limited and thus, the gaining of expertise by courts, to ensure to a certain uniformity in case law, is difficult. In view thereof, a solution could be the concentration of court jurisdiction to one particular court in the Netherlands. The potential inherent advantages and disadvantages, for example, longer travelling time for the left-behind family, should be assessed.

The circumstances in which someone becomes a missing person can vary on a case-by-case basis, as is also the case for the relationship the missing person has with members of his left-behind family. This raises various problems for the left-behind family. It calls for an approach that offers space to address the individual situation. Together with the fact that there is a limited number of long-term missing persons’ cases per year, it is difficult to draft legislation that is appropriate for the varied cases and needs. With this in mind, tailor-made solutions outside the legislative framework would initially be preferable.

There are a limited number of legal proceedings regarding missing persons and legal guardianship in the Netherlands per year. Consequently, for this field of law, the relatively little attention to and expertise in this area plays an important role. The comparative study shows that this field of law is underexposed in all jurisdictions. There is little information available and not much has been written in legal literature. Dutch policy, established within the broader policy domain of supporting victims, and encouraged by active members of left-behind families who have generated political awareness, is at the forefront. As a result, there is more attention to the atypical problems that the families of the long-term missing person face. In this research, a number of possibilities that may reduce these problems have been inventoried based upon comparative law research and the exploration of other possibilities. Each option offers its own balance when the interests of the various parties involved are weighed against each other. This can form the foundation for pursuing follow-up policy intended to relieve the legal problems of left-behind families, who experience a period of great uncertainty and a heavy burden emotionally.