Declaring a missing husband dead

[Felinity]

My g-grandfather apparently left Britain (sometime a few years after 1911) to head for Australia. Family rumour has it that his wife eventually remarried, and herself went to Africa (Nigeria, possibly?).

As G-Grandfather didn't die until 1938, would his wife have been able to have him declared dead if she didn't hear from him again (I have the figure of 7 years in my head for some reason) thus freeing her to remarry?

If she did, would I be able to find any records of this anywhere? Also would anyone know if the usual thing for a remarriage would be to remarry using the woman's original maiden name, or her married name? I'm off to search under both now, but if anyone can give me any guidance on how to look for "declared dead" records, I'd be very grateful, thanks!

[Waitabit]

HI Felinity, found this after a google, it may help, I only read a small part. Don't know if it mentions how to find or even if such records were kept, other than a mention of former name on marriage lines.

key '7years' in search box ( ctrl f) or scroll 1/4 way down.

http://www.aifs.gov.au/institute/seminars/finlay.html



"In Australia, as we have seen, the expedient of parliamentary divorce, as a way of escaping from a marriage, had never existed. A ‘popular’ way out was bigamy based on the presumption of death. This presumption was based on a common law rule in English law ‘that a person could be presumed dead, who had not been heard of for seven years by those who would be most likely to hear of them if they were alive.’40 The rule was institutionalised by legislation:

As a response to social problems, the British parliament had passed a series of acts dealing with bigamy, the ending of a marriage and remarriage under certain conditions. The first as early as 1603 allowed for remarriage after a period of absence of seven years if one of the partners did not know the ‘other to be living within that time’. With the expansion of the Empire, abandoned wives and their children became a more pressing problem in England. Subsequent acts made it easier for those deserted or abandoned to remarry. One in 1822, enabled men and women to remarry, provided they signed an affidavit to the effect that their spouse had died. An act in 1828 gave even greater leeway. It allowed for a remarriage if one spouse were ‘continually absent … for the space of seven years … and shall not have been known … to be living within that time’.41"

orange hi-lite lines in margin of page show where '7 years' is mentioned.

[Pam Downes]

Slightly more detail about 'death in absentia' in England and Wales (Scotland often has different laws/judiciary system to England and Wales), but nothing about where records might be kept.
http://en.wikipedia.org/wiki/Declared_death_in_absentia

After reading this
http://en.wikipedia.org/wiki/High_Court_of_Justice
I've decided that it might be worth you emailing the Royal Courts of Justice to ask them what they know about records, provided your relatives were based in England or Wales.

I do not have a clue about Scottish Courts, so I can only suggest that you click the 'complaints and feedback' at the bottom of this page if you want any Scottish info.
http://www.scotcourts.gov.uk/

I would have thought that a woman remarrying would marry using her married name, because if you think about it logically if her husband is (declared) dead than she's a widow. Widows remarry as (given name) (married surname).

Pam

[Guy Etchells]

I suggest you are mixing two different legalities here.
There is a difference between the requirement to have a person declared dead to enable others to administer their estate and the requirements needed to establish the right to remarry.
Under an Act of Parliament (mentioned in the first reply) of 1604 it was possible to legally remarry without the spouse being dead.
http://freepages.genealogy.rootsweb.ancestry.com/~framland/acts/1604.htm

A simply statement to that effect was all that was required.
Cheers
Guy

[Peter Goodey]

As G-Grandfather didn't die until 1938, would his wife have been able to have him declared dead if she didn't hear from him again (I have the figure of 7 years in my head for some reason) thus freeing her to remarry?

She didn't have to have him declared dead. If she hadn't heard from him for seven years, she could simply remarry without fear of any possible prosecution for bigamy.