The Gazette 1989

GAZETTE

DECEMBER 1 9 89

The Law relating to the Status of Children born outside Marriage and their Property Rights PART II

WHAT ARE THE NECESSARY PROOFS FOR THE FOLLOWING APPL ICANTS FOR A GRANT AND WHAT PROCEDURES MUST THEY FOLLOW TO OBTAIN SAME? (1) Non marital child to mother and mother to non marital child. ( 2 ) Non marital child to father and father to non marital child, and finally ( 3) Where an applicant is applying for a Grant on the basis of a relationship which is deduced t h r ough a person whose parents have not married each other e.g. non marital nephew to his uncle. The most important proof in all these cases is obviously the birth certificate. The long form of birth cert must be exibited in the Oath for Administrator. The standard of proof in all these cases is proof on the balance of probabilities and no corroboration is required. The Law Reform Commission at p. 111 of their Report proposed the dropping of the requirement for corroboration and proposed the standard of proof required being proof on the balance of probabilities, as they felt " t he requirement for corroboration could cause injustice since the Court might be perfectly satisfied on the evidence that a person is the parent of a child but would be obliged nonetheless to refuse the applica- tion on account of the absence of corroboration." The Act at S.10 on Guardianship, S.15 on maintenance and S.35 (8) on declarations of parentage adopts this standard of proof. 1. Non Marital Child to Mother Mother to Non Marital Child The long form of birth certificate must be produced showing the mother's name and address. Where the mother's name and/

or address has changed from that set out in the birth certifi- cate the applicant must swear a separate affidavit clearly identi- fying the mother and clarifying the change of name and/or address. 2. Non Marital Child to Father Father to Non Marital Child Where the father's name and

of paternity in the first instance as the Probate Officer would require very cogent evidence indeed to enable him to make an order giving liberty to such applicants to apply. Such evidence could include the ordering of blood tests. The power to order blood tests was conferred solely on the Circuit Court by Part VII of the Act. Furthermore as the Probate Officer's list is ex parte, an applicant to this list is not under any duty to put next of kin of the deceased on notice of his application. If the non marital link is disputed by the marital next of kin the applicant should apply to Court directly for a declaration as to parenthood. If the Marital next of kin do not dispute the claims of the non marital next of kin yet on balance the Probate Officer is not satisfied wi th the proofs of the latter, application may be made to the Probate Judge on motion for an order giving liberty to extract a LAWYER S DESKDIARY 1990

By Christopher Lehane, B.L., Deputy Probate Officer

address appears on the birth certificate (long form) and it corresponds to that of the deceased at the time of death all that is required is that the birth certificate be exhibited in the Oath as above. Section 46 (3) presumes that father registered on the birth certificate to be the father of the child. Where the father's name and/or address in the birth certificate has changed since the date when he was reguistered as father a detailed affidavit is required identifying the father and clarifying the change of name and/or address. Where the father's name does not appear on the birth cert the application may be entered in the Probate Officer's list by ex parte motion grounded on an affidavit of the applicant. The Affidavit should set out all rele- vent facts in order to establish clearly the non marital link. If the Probate Officer is not convinced on the balance of probabilities, he will refer the case to Court for a declaration of paternity. In such cases however, it may be advisable to seek a declaration

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