The husband declared dead came back and his wife married another. So whose wife is she?

My ex-husband and I legally married in 2005. In 2010, he went to work far away and disappeared for many years. I applied all of the notification and search measures in accordance with the law on civil procedures but there was still no reliable information about whether he was still alive or dead. In 2017 (i.e. after 7 years) my family asked the Court to declare my husband died and this decision took legal effect. The property left by him has been inherited to me and my parents-in-law according to the law provisions on inheritance. In January 2018, I legally married another person. In August 2018, my ẽ-husband (who was declared dead by the Court) returned and asked the Court to cancel the decision. 
So I would like to know if the marriage relationship between me and my ex-husband or me and my husband is legally recognized. Will the property we inherit have to be returned to the ex-husband?

FDVN’s opinion:

Sincerely thank you for your concerning our legal consulting service. We are glad to give you our advice on your question.  

According to the provisions of Clause 1, Article 71 of the 2015 Civil Code, the Court may decide to declare a person dead in the cases following:

a) After three years from the effective date of a court's decision declaring a person missing, there is still no reliable information that such person is alive;

b) The person has disappeared during a war and there is still no reliable information that such person is alive for five years from the end of the war;

c) The person met with an accident, catastrophe or a natural disaster and there is still no reliable information that such person is alive for two years from the end of such accident, catastrophe or natural disaster unless otherwise provided for by law;

d) The person has been missing for five consecutive years or longer and there is no reliable information that such person is still alive; this time limit shall be calculated in accordance with Clause 1 Article 68 of this Code.

In this case, The Court issued a Decision on your husband who died according to the provisions of Point d, Clause 1, Article 71 of the above Civil Code. Then,

[1] Personal relations and property relations of persons declared dead by courts:

Article 72 of the Civil Code provisions:

1. When a decision of a court declaring that a person is dead becomes legally effective, all marriage and family relations and other personal relations of such person shall be resolved in the same manner as if the person were dead.

2. The property relations of a person who is declared dead by a court shall be resolved in the same manners as if such person were dead; the property of such person shall be dealt with in accordance with the law on inheritance.

Detail:

a. marriage and family relations: According to Article 65 of Law on marriage and family  2014, In case a court declares a spouse to be dead, the time of termination of the marriage is the date of death stated in the court’s judgment or decision.

.b. for the common property division of husband and wife, according to Article 66 of Law on marriage and family  2014, the other (wife/husband alive) shall manage common property of the couple except in cases of other agreements from the heirs. The assets of the deceased will be inherited according to the provisions of the Civil Code.

[2]. Personal and property relations when the husband declared dead returns:

When a person who has been declared dead returns or when there is reliable information that such person is still alive, a court shall, at the request of such person or a person with related rights or interests, issue a decision on annulment of the decision declaring the person dead. (According to Clause 1, Article 73, Civil Code 2015).

 The personal relations of the person who has been declared dead when a court issues a decision on annulment of the decision which declared that such person was dead:

a. Personal relations:

When a court issues a decision to cancel the declaration of the death of a person and that person’s spouse has not got married to another person, their marriage relation shall be restored from the time of their marriage. In case the spouse of that person has got married to another person, the marriage relation established later is legally effective. [Clause 1 Article 67 Law on Marriage and Family].

Thus, in your case, when the ex-husband returns after you have legally married another person, the marriage relationship with the ex-husband is terminate. So now, you are the legal wife of your current husband.

b. Property relations:

The property relations shall be resolved according to the current marriage situation of the wife, specified in Clause 2, Article 67 of the Law on Marriage and Family 2014:

a/ If their marriage is restored, the property relation shall be restored on the effective date of the court’s decision canceling the declaration of the death of the person who is the husband or wife. The property acquired by his/her spouse from the effective date of the court’s decision declaring the death of the husband or wife to the effective date of the court’s decision canceling such declaration is the separate property of that spouse;

b / If their marriage is not restored, property created before the effective date of the court’s decision declaring the death of the husband or wife which has not been divided shall be settled as for property division upon divorce.

In your case, your marriage relationship between you and your ex-husband was not restored. The property shall be considered as the common property of husband and wife and settled like the division of property upon divorce.

c. Property has been inherited:

According to Clause 3, Article 73 of Civil Code 2015: " A person who has been declared dead but is still alive shall have the right to claim his/her property from the persons who received that his/her inheritance and/or the value of the remaining property."

In this case, if the inheritance of the ex-husband is inherited but he requests the heirs to return the inherited properties, the heirs must return them to him.

Above are the advice of FDVN Limited Law Firm base on studying law provisions and theories. We hope that our opinions would be useful.

Legal expert: Nguyen Thi Suong

FDVN Law Firm

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