Did you know that there are situations where a spouse disappears without any news? In these situations, there are ways to manage jointly owned assets, as well as to manage the custody of their children.
Find out all about this and other issues throughout this article.
Legally, what is considered “spouse absence”?
Legally, “absence of a spouse” is a situation that can have serious legal implications and is provided for in the Portuguese Civil Code, specifically in the context of the matrimonial property regime, the administration of marital assets, and succession.
The absence of a spouse can have two different meanings, depending on the context:
De facto absence (without court declaration)
It occurs when a person disappears from their usual residence without any news of their whereabouts, but has not yet been judicially declared absent. In this case, the other spouse may face legal difficulties in managing certain common assets or making specific decisions without court intervention.
2. Legal or declared absence (with judicial declaration of absence)
Under the terms of Articles 95 to 111 of the Civil Code, absence is a legal status that can be declared by a court when a person:
- She has been missing for over two years;
- Their whereabouts are unknown;
- There's no news of her.;
- And left no legal representative.
In these cases, the court may:
- To appoint a curator to manage the absent person's assets;
- Subsequently, if the disappearance continues, declare the presumed death (10 years after the last news, or 5 years in certain cases, such as in contexts of life-threatening danger, for example shipwreck, war, etc.).
What are the implications of absence in marriage?
The absence of one of the spouses at the wedding, when it continues over time and is not accompanied by news about their whereabouts, can generate relevant legal implications, especially when there is no previously established power of attorney or legal representation.
First and foremost, it is important to note that absence, in itself, does not dissolve the matrimonial bond. However, it can profoundly affect married life, both from a personal standpoint and with regard to the administration of common assets. Portuguese legislation provides legal mechanisms that allow, in certain circumstances, for the will or presence of the absent spouse to be supplied, notably through the judicial appointment of a curator for the absent, as per Articles 95 et seq. of the Civil Code.
From an asset management perspective, absence can hinder or even prevent the management of common assets, especially under community property regimes, where the consent of both spouses is required for certain acts of disposition or administration. In these cases, the present spouse may request judicial authorisation to perform specific acts on behalf of the couple, or, in more complex situations, judicial separation of assets.
From a personal point of view, prolonged and unjustified absence may still constitute grounds for the request for divorce without consent to the other spouse, especially when there is abandonment of the marital home or an irreversible breakdown of the common life. If the absence is prolonged for several years without any contact or possibility of locating the person, a declaration of presumed death may also be requested, with the resulting legal effects, particularly in terms of succession.
What characterises the disappearance of a spouse?
The disappearance of a spouse is characterised by the prolonged and unjustified absence of one member of the couple from their habitual domicile, without the other having reliable news of their whereabouts or state of life, and without a legal representative having been appointed or a valid power of attorney having been granted for their representation.
Legally, for the situation of disappearance with legal relevance to be established, it is necessary that:
- The absence is either involuntary or without communicated justification to the present spouse, which excludes cases where the separation was consented to or previously agreed;
- Be prolonged, with no exact timeframe set at the start, but assuming greater severity and consequences as time passes without any contact or information;
- Prevent normal marital cohabitation and the joint administration of joint life and assets;
- There is no active legal representation. which allows for the valid replacement of the missing spouse.
Voluntary absence and disappearance.
The disappearance of a spouse and their voluntary absence are not the same thing. Voluntary absence happens by the person's will, whereas disappearance occurs in situations that do not depend on the spouse's will.
When does absence gain legal relevance?
The moment when the absence of a spouse becomes legal happens in the following situations:
- There is no means of communication with the absent person.;
- There are assets that must be provided for their administration.;
- The absent person should not have asked someone to manage their possessions.
What are the first steps if your spouse goes missing without a trace?
In order to declare the absence of a spouse, the following steps must be taken:
Apply for absence declaration
The spouse who is present must provide proof of their disappearance;
The request must be made in court.
Nomear curador
The judge is responsible for appointing a curator to manage the property of the absent person.
Publication of notices:
The court will publish notices in order to find the absent spouse.
Declaration of absence:
The judge can declare absence, after a period of time without any news of the absentee.
After these steps, the next step is litigious divorce and the division of assets and the custody of children.
Judicial declaration of absence: what it is and how it works
The judicial declaration of absence occurs in situations of spousal absence. Any interested party can present the declaration of absence, in order to prove the spouse's absence and manage their assets.
The process occurs as follows:
- After the declaration has been presented, the judge appoints a curator, who will be responsible for the absentee's assets for one year;
- If the absent person does not return within one year, provisional succession is declared, which, as a rule, lasts for 10 years.;
- If the absent person does not return in the next 10 years, the assets will go to the custodians.
The legal consequences of a spouse's absence vary depending on the specific circumstances and the jurisdiction. In general, however, a spouse's absence can have implications for: * **Marital Rights and Obligations**: * **Financial Support**: The obligation of one spouse to support the other may continue, even in their absence, though enforcement can be difficult. * **Property Rights**: Depending on marital property laws, assets acquired during the marriage may still be subject to division upon divorce or death, even if one spouse is absent. * **Decision-Making**: Without a spouse present, unilateral decisions regarding shared property or finances might be questioned or require legal intervention. * **Divorce Proceedings**: * **Service of Process**: If a spouse wishes to initiate divorce proceedings, serving legal documents to an absent spouse can be challenging. Courts may allow for alternative methods of service, such as publication in a newspaper or service on a designated agent. * **Default Judgments**: If an absent spouse cannot be located or fails to respond to legal proceedings after proper notification, a court may issue a default judgment, meaning the case proceeds without their active participation. * **Children**: * **Custody and Visitation**: The absence of a parent will be a significant factor in custody determinations, with courts prioritizing the child's best interests. * **Child Support**: The absent parent's financial obligations for child support will generally still apply, and legal mechanisms exist to enforce these. * **Death of a Spouse**: * **Inheritance**: Laws of intestacy (dying without a will) will apply, and the absent spouse may still have inheritance rights unless specific legal steps have been taken (e.g., divorce). * **Life Insurance and Benefits**: The absent spouse may still be the designated beneficiary of life insurance policies or other benefits, depending on the documentation. * **Mental Incapacity**: * If the absence is due to mental incapacity, legal frameworks for appointing a guardian or conservator for the absent spouse may be invoked to manage their affairs. * **Presumption of Death**: * In cases of prolonged and unexplained absence, a legal presumption of death may arise, allowing for the distribution of the absent spouse's estate and remarriage of the other spouse, often after a statutory waiting period. It is crucial for individuals facing such situations to seek legal advice from a qualified solicitor or lawyer in their jurisdiction to understand their specific rights and obligations and to navigate the legal process appropriately.
There are various consequences concerning the absence of a spouse, such as:
- Loss of assets;
- The abandoned spouse may request alimony if they cannot support themselves or if there are minor children;
- An absent spouse loses their right to the marital home and inheritance.
Is divorce possible if a spouse is missing?
Yes, it is legally possible and provided for under Portuguese law, falling under the situations of divorce without the consent of one of the spouses, regulated by Article 1781 of the Civil Code.
Is the disappearance of a spouse grounds for divorce?
The disappearance of a spouse can trigger a divorce, yes. In this litigious case.
Can I sell assets on behalf of a married couple if one spouse is missing?
No. The civil code does not permit their sale. Bens without the spouse's presence, unless there is a court order authorising it.
Who represents the absent spouse in legal matters?
The person responsible for representing the absent spouse in legal matters is the curator. This person is appointed by the court.
What if the missing spouse reappears after years?
The absent spouse has a total of 10 years to appear. If they appear within this timeframe, they can claim their assets. However, if they appear after 10 years, they have no right to their assets.
Can I get a pension or financial support in this situation?
You can receive maintenance if you have underage children or cannot support yourself.
What is the curator of the absent?
The curator of the absent person is an individual appointed by the court in the case of the spouse's absence. This person represents the absent spouse and is responsible for their assets.
The role of the lawyer in the absence of the other spouse with no news?
One divorce lawyer It is the best option to help and advise a person abandoned by their spouse. Also in situations of acrimonious divorce, the lawyer is the most suitable person to present evidence and witnesses, as well as to manage the process.
At Divorce Lawyers counts on specialist lawyers, ready to assist you and fight for your rights.
Parental responsibility: absence of the other spouse with no news - who gets the children?
With regard to Parental responsibilities In cases of the spouse's absence, the person who is the victim of the absence can declare the absence and, after that, can initiate the contentious divorce process, where they have the right to the custody of the couple's children.
Absence of the other spouse without news under a property regime: administration and sale of common assets?
The absent spouse's assets are to be held by the guardian. It is also not possible to sell the missing spouse's assets unless there is a court order.
Conclusion
The absence of a spouse occurs when one member of a couple disappears without a trace. In these cases, the other person in the couple can turn to the courts to fight for their rights.
With regards to assets, a curator is appointed to manage the absent person's assets, and if this person does not reappear within a period of 10 years, the assets pass to the curator. With regards to parental responsibilities, a contentious divorce can be requested, where issues such as child custody are discussed.
