When one parent dies or disappears

Growing up in a two-parent household is ideal for proper upbringing of every child. However, this is not always possible because sometimes the parents get separated, divorced or one of the parents die.

One of the largely held misconceptions in some African societies is that children belong to the father or his family. Therefore, upon the death of a father, there is tendency for paternal relatives to seek sole custody. However, this is not lawfully right. According to article 203 of Nº32/2016 of 28/08/2016 the law governing persons and family, both parents have equal rights and responsibilities regarding caring for and educating children.

If one of the parents dies, article 216 of Nº32/2016 of 28/08/2016 the law governing persons and family says, “Children continue to be looked after by the surviving parent even though he/she would enter into a new marriage.”

But what, exactly is death? The layman definition of death is when someone stops breathing, their heart stops beating and their brain stops functioning. And so that person is buried in the ground. However, legally, death has a broader definition to include absence and disappearance.

This follows article 14 of the law that governs persons and family which says that a person can be declared dead if they have disappeared or have been absent for a certain period of time.

Concerning disappearance, article 17 paragraph one of Nº32/2016 of 28/08/2016 the law governing persons and family says, “When a person disappears such that his/her death is established beyond doubt, even if his/her body is yet to be found or has not been identified, any interested person may, by unilateral petition, apply to the court for a declaratory judgment of his/her death.”

It is hard to prove that a person is dead without having seen their dead body. However, in situations such as shipwrecks, air disasters, earthquakes, landslides, wars, it might be nearly impossible to find a body.

That’s why article 177 paragraph two of Nº32/2016 of 28/08/2016 says that during incidents such as those that have been mentioned above “whereby there are grounds to believe that several persons were killed, the death of such persons may be declared in a collective judgment.” Of course, a lot of information is collected before judgment is made.

The period of time between when a person disappears and when they can be declared dead is stipulated in article 22 of the law governing persons and family. Article 22 says that when a person who has no representative has been absent for two years from the day that the last reports of his/her existence are received, they can be declared dead. For a person with a representative, they are presumed to be dead after four years.

After a person who disappeared has been declared dead, then the successors of such a person, usually his/her children have the right to inherit his/her property. This is done in alignment with the relevant laws and procedures. This is according to article 33 of Nº32/2016 of 28/08/2016 the law governing persons and family.