theme 5 Flashcards
proof of death
- medical certificate indicating physical death of a person.
- heart needs to stop beating, lack of pulse, brain stem ceases to transmit electrical impulses
presumption of death
when there is no body found, law develops mechanisms that approximate consequences of finding a corpse
explain the first common law order of presumption of death
- disappearance of a person is initiated by interested party, spouse, family member, etc. and they make an application to the high court
explain the second common law order of the POD
they hand in an affidavit in which they set out the circumstances of the person’s disappearance based on a balance of probabilities.
explain the third common law order of the POD
after considering the initial application the HC then hands out a rule nisi.
what is a rule nisi
a rule nisi is a preliminary order in which they give a timely date of when the final order will be made
explain the 4th common law order of the POD
the rule nisi is then published in the Gov gazette and in a local newspaper
explain the 5th common law order of the POD
if no evidence is found that suggests that the missing person is alive, a presumption of death is delivered based on a balance of probabilities
what is the first step in the statutory procedure
inquests are formal legal investigations which are undertaken by a judicial officer which is governed by the Inquests Act
what is the second step in the statutory procedure
the inquests act procedure requires a higher standard of proof, the court needs to be satisfied beyond reasonable doubt
what is the 3rd step in the statutory procedure
inquest act automatically dissolves marriage and does not need to use procedures under the dissolution of marriages on the presumption of death act
what is the 4th step in the statutory procedure
the HC revives the record and confirms the finding
