How to recognize a citizen as missing through the court, the Civil Code explains

The Civil Code explains how to recognize a citizen as missing through the court. In some legal situations, a missing person must be recognized as absent in fact, documented. His responsibilities - family, work, property and financial - should be transferred to trusted persons so that debts do not accumulate. The procedure for recognizing a person as missing is initiated when it is impossible to recognize the fact of death: there is no doctor’s report, there is no body of the deceased, but the period of disappearance is still very short.

Cases when you need to announce a missing person

If a person is not officially recognized as dead or missing, then his heirs can use the property, but cannot dispose of it: sell, exchange or donate. After 5 years of absence of a decision on recognition as missing, the decision on recognition as deceased is replaced.
Family relationships. Difficulties arise for the spouse who is officially married to the missing person: she cannot enter into a new marriage, apply for benefits as a single mother, etc.
In some cases, benefits are also provided to the family of the missing (deceased): for example, a survivor's pension.
Alimony. If the father of minor children is missing, there is no one to demand child support from. In this case, you need to obtain support from the state in the form of a pension for each of the children. This can only be done when the father is officially declared missing.

You can get a divorce or pay off the debts of your missing husband only if you have a document confirming his absence. It can be not only a death certificate issued by the registry office, but also a decision to declare a missing person issued by the court.

Shortened calculation of the period for declaring a person missing

The law establishes a shortened period according to which a person will be considered missing. This period is six months .

A reduced time may be applied if a citizen disappeared under extraordinary circumstances that put his life at risk . Of course, everything is written down in the documentation.

They also note a shortened period for declaring a person dead. This period is 2 years , not the required 5 years. The term will be reduced when it is proven that people were in an emergency or disappeared due to hostilities. The end of the period will be considered the official date of cessation of hostilities.

Example when a reduced time limit can be applied:

Ivanov and Soloviev went on a research expedition to Mount Fisht. A week later they were supposed to return, but they did not report themselves in any way.

By court decision, Ivanov and Solovyov were declared missing six months later. The cause was an accident.

Conditions for recognition as missing

A wife can file an application for recognition as missing if the husband:
Does not appear at the place of residence and registration for more than 1 year;
He does not show his presence in any way: he does not write, does not appear on social networks, nothing is known about him to colleagues, friends, relatives. It is impossible to obtain information about him by any means.
Neither the police nor the bailiff service (if he is listed as an alimony payer) can determine his location.

Additional grounds for recognition as missing, which the court takes into account when making a decision:

No one can confirm that the missing person was planning to change his place of residence or move.
The missing person did not remove valuables and documents from home or work before disappearing.
He left in his car.
He had no conflicts with anyone, had no problems with the law, and was not pursued by debt collectors.

Deadlines

If it is impossible to establish a specific date when the potentially missing person was last contacted, 1 year should be counted from the first day of the month following the last information about the missing person was received. If it is impossible to determine the month, then the countdown begins on January 1 of the next year.

If a person is declared missing, another 5 years can be counted. After this, he can be recognized as dead.

Example : The last time Maria communicated with her husband Ivan was in April 2021. However, later, in June, he got in touch again and talked to the children. The year must be counted from the first of July (the next month after the one in which the person supposedly disappeared).

How does recognition happen?

Who is serving? Only an interested person can apply to declare a person missing: relatives, non-relative heirs, spouse.

Where to submit? To the court at the place of residence or registration of the missing person.

What to include in the application? In addition to the personal data of the applicant and the missing person, it is necessary to indicate the circumstances of the disappearance: when was the last news about him, when and where was he last seen. The applicant must specify why a person needs to be declared dead: to obtain divorced status, to register property in his or her own name, or for other reasons.

In order not to forget anything, it is better to fill out an application for declaring a person missing according to the sample.

What evidence should I provide? Certificates from the police on the case of loss, search. Extracts from house books. Testimony of witnesses sufficient to prove the fact of a long absence. Other papers, oral explanations.

How is the trial going? The judge finds out the circumstances of the case and makes inquiries to various authorities. If there are no violations and the judge does not see any mercenary intent in the applicant’s actions, he grants the request. If illegal motives are discovered, the judge will explain to the applicant why the application is being returned.

Attached documents

The following package of documents must be attached to the statement of claim:

Passport or other documents (if any) confirming the identity of the missing citizen.
Documents confirming relationship (for applicants who are relatives). For example, a birth or marriage certificate.
A statement to the police, as part of which the search for the missing person was carried out.
The result of the police search.
Certificate of the last known place of residence of the disappeared person.
Confirmation of the fact that the missing person is not wanted for committing crimes.
Witness interviews.
Certificate from last known place of employment.

It is recommended to prepare copies of all documents, including statements, one copy for each person participating in the meeting.

Legal consequences

A survivor's pension is issued for the disabled dependents of the missing person;
The spouse can dissolve the marriage by presenting a court decision;
Debts to creditors are repaid from the property of the missing person;
Debts for alimony or simply loans are also issued from the property of the missing person;
The missing person can be discharged from the apartment based on a court decision;
The remaining property is transferred to a trustee for permanent management;
5 years after a citizen is recognized as missing, he can be declared dead and the remaining property can be inherited.

News of the missing

He didn’t die, didn’t get sick, but simply disappeared somewhere - this can be said about citizens who left their home and never returned there. There are many more such cases than we think. According to official statistics, approximately 30-35 thousand people disappear every year - the population of a not very large provincial city. Some of the departed citizens will return home, some will sooner or later be found alive or dead, and the rest will be considered “unknown.”

According to official statistics, approximately 30-35 thousand people disappear every year - the population of a not very large provincial town

By the way, this is a rather large category of citizens that the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dealt with. In particular, she reviewed the results of an interesting legal dispute - a woman with three children in her arms asked to recognize her husband as missing. In court, the plaintiff, a resident of the Pskov region, said that her husband left for Ukraine in 2012, and since then there has been no word from him.

A month after his departure, concerned that her husband was not responding, the woman went to law enforcement agencies and wrote a statement - her husband had disappeared. Five years passed, and the citizen again went to the police with a similar statement - find the person. This time she received an answer that the police were looking for her husband because they suspected him of committing a crime. The letter ended with the police writing the following: all the measures they took did not produce results.

The plaintiff explained to the court that she had three girls in her arms, and she asks the court to establish the legal fact that her husband is “unknown.” This is necessary to arrange survivor’s pensions for children and resolve the issue of “appointing a trustee to manage and preserve her husband’s property.” The city court, after listening to the citizen, rejected her claim. And the regional court agreed with this conclusion.

The woman had to go to the Supreme Court of the Russian Federation.

There they checked the case materials, discussed the plaintiff’s arguments and stated that “there are grounds for canceling the court decisions.” According to the Supreme Court of the Russian Federation, both the city and regional courts committed violations of the law in this verdict.

A citizen may be recognized by the court as “missing” if during the course of a year no one at his place of residence has information about where he is.

Here are the Supreme Court's arguments. From the case materials it is clear that the plaintiff got married in 1998 and three daughters were born in the marriage. In the fall of 2012, a citizen contacted the local police department with a statement about the disappearance of her husband. Five years later she brought a similar statement there. The case contains a message from the investigative department of the Ministry of Internal Affairs for the Pskov region dated 2021. It says that in the summer of 2012 a criminal case was opened and the plaintiff’s husband is listed in it as a defendant who was put on the wanted list. First on the federal wanted list, then on the international wanted list. But since the citizen was not found, the criminal case was suspended. There are also other documents from the local police in the file. They say that “as part of the investigation, the whereabouts of the citizen have not yet been established.” The head of the operational-search department of the local police unit gave the same testimony in court. Refusing the citizen, the city court stated that the information she provided was not enough to recognize her husband as missing. In the court's opinion, “there are grounds to believe” that her husband is not missing, but is “deliberately hiding in order to evade punishment.” The regional court was satisfied with this argumentation. But the Supreme Court of the Russian Federation is not.

The high court began its evidence by recalling Article 42 of the Civil Code. It says that a citizen can be recognized by the court as missing at the request of “interested parties” if during the course of a year no one at his place of residence has information about where he is.

The Supreme Court emphasized: the institution of recognizing a citizen as missing is certification in court of the fact of “a long-term absence of a citizen from his place of permanent residence” if attempts to find where the person lives and obtain at least some information about him have been unsuccessful. The court recalled: the institution of recognizing a person as absent “has the goal of preventing” possible negative consequences. Moreover, both for the missing person himself and for “other persons, including those who have the right to receive maintenance from him.” This florid phrase says that recognizing a person as absent is important for citizens associated with such a missing person, because some “social guarantees in the property and non-property sphere” often depend on this.

The police must confirm in court that they searched for the missing person and did not find him. Photo: Sergey Mikheev

From the case materials it is clear that since the fall of 2012, relatives have had no information about the missing person. The family confirmed this in court. The operational search activities of the police also yielded nothing. In the city court, representatives of social security and the Pension Fund did not object to the citizen being declared absent.

In this case, the Supreme Court emphasized, it was legally significant, in relation to Article 42 of the Civil Code, for the court to find out whether there was any information about where the citizen was located. But the city court found it sufficient to refuse only that the spouse was wanted and could “deliberately hide.”

According to the Supreme Court of the Russian Federation, the mere fact of putting a person on the wanted list due to the initiation of a criminal case without assessing all the information obtained as a result of such a search cannot be grounds for refusing a request to recognize the citizen as missing. The courts did not take this into account, the Supreme Court said. So the Supreme Court called the refusal to the plaintiff “illegal.” All decisions in this case were canceled, and the Supreme Court ordered the dispute to be reconsidered taking into account its clarifications.

Arbitrage practice

In most cases, the court recognizes a citizen as missing, provided there is evidence that he really has no contact, does not live anywhere, and the police could not find any information about the person. Let's look at a couple of cases from judicial practice.

Example : Tver region. Case No. 2-759/2017 dated 09.11.2017. A woman files a lawsuit on the grounds that her children’s husband, who previously paid alimony, suddenly stopped doing so and there has been no information about him for 4 years. She needs court recognition in order to receive a survivor's pension. During the trial, the fact of the husband's absence is confirmed. He does not live at the registered address, is not undergoing treatment, there is no information in Rosreestr about the missing person’s other property, he does not appear in the employment center and does not officially work anywhere. Court decision: satisfy the plaintiff's application.

Example : Krasnoyarsk region. Case No. 2-497/2017 dated October 25, 2017. The application is submitted by the adoptive mother of children whose blood relative, who previously paid alimony, does not get in touch. A court decision is required to receive a survivor's pension. As a result of searching for information, it turned out that the allegedly disappeared person lives at a different address. Court decision: to reject the application.

Deregistration

If the disappeared person is declared missing, then to cancel the registration you will need an extract from the court decision, which indicates the bearer’s right to remove the citizen indicated in it from the registration register (see How to forcibly deregister a person from an apartment without his consent).

With this document, the homeowner applies to the local FMS office or passport office. An application for deregistration is written to the head of the department, with an extract attached. The procedure is carried out smoothly and does not require additional effort.

The procedure for deregistering a citizen declared dead at the FMS office is no different from this. In this case, the head of the department is presented with a copy of the extract attached to the application and certified by a notary, since here the document issued by the court is unified for various civil transactions.

Reasons why people are assigned this status

Not being a citizen creates problems for other people. For example, for a creditor this threatens non-payment of borrowed funds, for dependents - the loss of a breadwinner, for a wife or husband - the impossibility of officially dissolving the marital relationship. And something needs to be done about these problems. The interests of the absentee are also at risk, in particular his property, which is not controlled by anyone. It cannot be disposed of, since legally it still belongs to the missing citizen. There is a way out of the situation: recognize the person as missing and declare the citizen dead. But this procedure is judicial; the issue is resolved during special proceedings.