About spouses presumed dead and found alive after many years

[chevalier]

In centuries past some Christian POWs and captives from raids spent multiple decades as, for example, galley slaves on Ottoman ships or harem slaves before being repatriated.

According to modern standards being carried off with no specific indication of death would not be sufficient for a presumption of death — the bishop needs to be sure that the person has died.

However, in the past treatment varied in some parts of Christian Europe.

Obviously, even in modern times some people presumed or declared dead do sometimes show up alive anyway.

Obviously, the original marriage never ceased to be binding, and any marriage entered into on the basis of the presumption of death of one’s spouse was invalid, i.e. nonexistent (though without personal fault).

Hence, relations with one’s ‘new spouse’ need to stop, even though it may have been a loving ‘marriage’ of 20 years, while the old marriage needs to resume even though it may have been a very short time before the parties were separated (e.g. half a year before the husband or wife was kidnapped). Obviously the old spouse is owed ‘the debt’ (notwithstanding that a decent person would probably not insist on that particular point).

It obviously looks like a tough situation to be in, notwithstanding the happiness in finding the old spouse alive.

Anyway, does anybody know any such cases from family stories, friends of friends, history, law classes?

 

[Ignatius]

Obviously, even in modern times some people presumed or declared dead do sometimes show up alive anyway.

Obviously, the original marriage never ceased to be binding, and any marriage entered into on the basis of the presumption of death of one’s spouse was invalid, i.e. nonexistent (though without personal fault).

Hence, relations with one’s ‘new spouse’ need to stop, even though it may have been a loving ‘marriage’ of 20 years, while the old marriage needs to resume even though it may have been a very short time before the parties were separated (e.g. half a year before the husband or wife was kidnapped).

Anyway, does anybody know any such cases from family stories, friends of friends, history, law classes?

Are you talking about the Doris Day and Rock Hudson?

 

[casslean]

I’ll start with the caveat that I’m not sure how canonical law would treat such cases. Under civil law, in most common-law jurisdictions (including the US, Canada, and the UK) the family of a missing person who is presumed dead has to apply to the court after a reasonable time (usually seven years) and satisfy the court of a number of conditions that would demonstrate on a balance of probabilities that the person is probably not alive and that an order for the presumption of death should be issued and the estate administered. Administering the estate can include dissolving any marriages, distributing real property and chattels, and awarding insurance proceeds.

In the event that the missing party reappears, that party can petition the court to vary the above order, but it is a variation, not a nullification of the Order. The Court has to discretion to decide what parts it will or will not vary, depending on how the interests of the third parties are affected. If an extended period of time has passed, the Court may not vary anything other than the legal status of the missing person).

From a canonical perspective - and again, I’m not a canon lawyer, so this is my attempt to parse canon law based on what I have read and a general interpretation of the law - the Order from the court declares the person dead and the marriage dissolved on those grounds. Can. 22 states that “Civil laws to which the law of the Church yields are to be observed in canon law with the same effects, insofar as they are not contrary to divine law and unless canon law provides otherwise.” There is nothing in canon law (of which I know) that prevents the civil law from declaring an individual as being dead, which means any subsequent marriage would have been undertaken in good faith and sacramentally valid. But I’m certainly willing to be corrected on that point. That’s just my interpretation.

If you’re looking for an example of “people coming back”, there are quite a few. One I know for certain (as it has insurance law implications) was the case of John Burney in Arkansas in 1976 - he disappeared to avoid creditors, was declared dead in Arkansas, but was later found and convicted of fraud.

 

[DakiniArtist]

I was just watching Too Many Husbands with Jean Arthur, Melvyn Douglas, and Fred MacMurray. Fred MacMurray returns after being declared dead only to find his wife has re-married his best friend. Thankfully, they didn’t have children. I was just wondering myself what the Church would say. I suppose the “dead” husband would continue to be the proper spouse, but oh goodness, what if they were children from the second marriage?

 

[Bonnie]

Anyway, does anybody know any such cases from family stories, friends of friends, history, law classes?

An uncle by marriage took off one day, unfortunately with the children. My aunt later became Catholic, had her marriage annulled, and married a wonderful Catholic man. The first husband - diagnosed schizophrenic - turned up again years later.

Another uncle by marriage - on the other side of the family - liked to keep on the move. After having a child, my aunt said she didn’t want to move anymore, so he moved without her. He was later presumed dead and she remarried. I often wondered what would happen if he showed up again! But I’m sure he’s dead now - he’d be close to 100.

 

[tee_eff_em]

From a canonical perspective - and again, I’m not a canon lawyer, so this is my attempt to parse canon law based on what I have read and a general interpretation of the law - the Order from the court declares the person dead and the marriage dissolved on those grounds. Can. 22 states that “Civil laws to which the law of the Church yields are to be observed in canon law with the same effects, insofar as they are not contrary to divine law and unless canon law provides otherwise.” There is nothing in canon law (of which I know) that prevents the civil law from declaring an individual as being dead, which means any subsequent marriage would have been undertaken in good faith and sacramentally valid. But I’m certainly willing to be corrected on that point. That’s just my interpretation.

Neither am I a Canon Lawyer.* I believe the OP alluded also to this canon:

Can. 1707 §1. Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not considered free from the bond of marriage until after the diocesan bishop has issued a declaration of presumed death.
§2. The diocesan bishop is able to issue the declaration mentioned in §1 only if, after having carried out appropriate investigations, he attains moral certitude of the death of the spouse from the depositions of witnesses, from rumor, or from evidence. The absence of a spouse alone, even for a long time, is not sufficient.
§3. The bishop is to consult the Apostolic See in uncertain and complicated cases.

But I expect you are are correct – I do not know how well this plays with civil rulings, and the assurances which may be sought be a civil judge before he might declare a missing person to be dead?

tee
( * Re-insert Disclaimer Here)

 

[1ke]

vatican.va/archive/ENG1104/__P6S.HTM

CHAPTER IV.

PROCESS IN THE PRESUMED DEATH OF A SPOUSE

Can. 1707 §1. Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not considered free from the bond of marriage until after the diocesan bishop has issued a declaration of presumed death.

§2. The diocesan bishop is able to issue the declaration mentioned in §1 only if, after having carried out appropriate investigations, he attains moral certitude of the death of the spouse from the depositions of witnesses, from rumor, or from evidence. The absence of a spouse alone, even for a long time, is not sufficient.

§3. The bishop is to consult the Apostolic See in uncertain and complicated cases.

 

[casslean]

Neither am I a Canon Lawyer.* I believe the OP alluded also to this canon:

Can. 1707 §1. Whenever the death of a spouse cannot be proven by an authentic ecclesiastical or civil document, the other spouse is not considered free from the bond of marriage until after the diocesan bishop has issued a declaration of presumed death.
§2. The diocesan bishop is able to issue the declaration mentioned in §1 only if, after having carried out appropriate investigations, he attains moral certitude of the death of the spouse from the depositions of witnesses, from rumor, or from evidence. The absence of a spouse alone, even for a long time, is not sufficient.
§3. The bishop is to consult the Apostolic See in uncertain and complicated cases.

The effect of the civil Order is to prove, on a balance of probabilities, that the person is dead. So, Can. 1701(1) would not be in play where a civil Order has been issued; if the canon stated that death could not be proved except by by an authentic ecclesiastical document, then it would be consistent with stating that a civil order would not suffice.

given that the effect of these provisions are to restrict an individual’s rights or freedoms, I’m also giving the passages a strict interpretation, as required under the interpretive provisions of the Code of Canon Law.

 

[St_Francis]

The effect of the civil Order is to prove, on a balance of probabilities, that the person is dead. So, Can. 1701(1) would not be in play where a civil Order has been issued; if the canon stated that death could not be proved except by by an authentic ecclesiastical document, then it would be consistent with stating that a civil order would not suffice.

given that the effect of these provisions are to restrict an individual’s rights or freedoms, I’m also giving the passages a strict interpretation, as required under the interpretive provisions of the Code of Canon Law.

I think that by ecclesial or civil document in number 1, they mean something along the lines if a death certificate; I think a bishop would have to do some sort of investigation if the civil situation was no more than a court’s declaring death.

 

[casslean]

I think that by ecclesial or civil document in number 1, they mean something along the lines if a death certificate; I think a bishop would have to do some sort of investigation if the civil situation was no more than a court’s declaring death.

The Court doesn’t “declare death”; the Court investigates the situation and issues an Order, stating that death has been proved; that is identical to what a death certificate does. They have the same legal effect.

Again, because this canon restricts rights, it is subject to strict interpretation; that means that if they meant a death certificate, they had to specifically say a death certificate. A court Order is a civil document proving death.

 

[zamyrabyrd]

An uncle by marriage took off one day, unfortunately with the children. My aunt later became Catholic, had her marriage annulled, and married a wonderful Catholic man. The first husband - diagnosed schizophrenic - turned up again years later.

Another uncle by marriage - on the other side of the family - liked to keep on the move. After having a child, my aunt said she didn’t want to move anymore, so he moved without her. He was later presumed dead and she remarried. I often wondered what would happen if he showed up again! But I’m sure he’s dead now - he’d be close to 100.

Sounds like some of your family were “in love with long distance” as in the play by Tennesee Williams.

 

[PaulfromIowa]

http://upload.wikimedia.org/wikipedia/en/7/7e/My_Favorite_Wife_poster.jpg

(Please Note: This uploaded content is no longer available.)

 

[unstoppable_II]

Are you talking about the Doris Day and Rock Hudson?

That would be Doris Day and James Garner.