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GAZETTE
APRIL 1979
Illegitimate Children and Succession
A BRIEF CONSTITUTIONAL ANALYSIS
By TOM O'CONNOR, Solicitor
In an earlier article in this series
1
the succession issue in
relation to illegitimate children and particularly their very
limited rights on an intestacy were discussed. It was also
seen how those limited rights contrasted sharply with the
succession rights of legitimate children. Such a dis-
tinction can undoubtedly be termed discriminatory, but
the relevant question to pose and that which will be
examined in this article is whether the discrimination can
be justified under Article 40.1 of the Constitution which
provides that:
"All citizens shall as human persons be held equal
before the law".
This article therefore deals with discrimination between
legitimate and illegitimate children viewed from the point
of view of the illegitimate child's limited rights to inherit
on the intestacy of a deceased parent.
Ryan v. A.G.
In the past ten to fifteen years our members of the legal
profession, both practitioners and judiciary alike, have
shown a far keener interest than was heretofore apparent
in examining both the various defined and undefined con-
stitutional rights and guarantees. The decision of Kenny
J. in
Ryan v. A.G.
1
must be an acknowledged landmark
in the field of constitutional law as it opened up or more
correctly revealed new horizons and provided the much
needed catalyst to examine further those constitutional
rights and guarantees. However, the prompting and en-
couragement to be drawn from the decision of Kenny J.
has not always been as apparent as many would have liked
in our developing constitutional law and this has led to
criticisms of the legal profession even by some of its own
members. When one considers the lack of constitutional
cases in the area of illegitimacy alone, the criticism is
justified.
No case has as yet appeared before the Courts to test
the validity of the discrimination levied upon illegitimate
children in the law of succession; a somewhat surprising
factor particularly when one has regard to recent develop-
ments by the U.S. Supreme Court (whose decisions are
being increasingly referred to by our Judiciary) of its
"Equal Protection Clause"
3
in
relation to the numerous
cases which have appeared before it on this topic.
Our Supreme Court's decision in the
Nicolaou
case?
may have contributed somewhat to this inactivity but
whilst the judgement in that case (which related not to the
rights of an illegitimate child but rather to the rights or, as
it transpired, the "non-rights" of a natural father to his
illegitimate child) has not been specifically overruled,
subsequent decisions by the same Court and by Walsh J.
himself, who gave the Supreme Court's judgement in that
case, have in the writer's opinion, shown a more liberal
approach to the question of discrimination under Article
40.1.
Article 40.1
Under Article 40.1 all citizens as human persons are to
be held equal before the law. However, the section con-
tains an important proviso which limits the generality of
the foregoing.
"This shall not be held to mean that the State shall not
in its enactments have due regard to differences of
capacity, physical and moral, and of social function".
In the
Nicolaou
case
3
Walsh J. held that the first state-
ment in Article 40 was "not to be read as a guarantee or
undertaking that all citizens shall be treated by the law as
equal for all purposes, but rather as an acknowledgement
of the human equality of all citizens and that such
equality will be recognised in the laws of the State".
6
It would be ridiculous to think that the law should pro-
vide equal measure under all circumstances to every person
and the proviso therefore to Article 40.1 is, as Walsh J.
correctly pointed out in the
Nicolaou
case
7
"a recognition
that inequality may or must result from some deficiency or
from some special need".
However, whilst there may be no diffificulty in agreeing
with such statements in general, the problem arises when
they are sought to be adpated to specific aspects of our
law, such as our law in relation to illegitimate children.
At the outset it must be pointed out that in any society
one is bound to have permissible levels of legal and social
distinctions or discriminations between various members
of that society. The point was made by the late Chief
Justice, Cearbhall O'Dalaigh, in
O'Brien v. Keogh and
O'Brien
8
when (referring to the judgement of Walsh J. in
the
Nicolaou
case) he said that "Article 40 does not re-
quire identical treatment of all persons without
recognition of differences in relevant circumstances. It
only forbids invidious discrimination."
Invidious or Arbitrary Discrimination
For the purposes of the present article we must con-
sider whether the discrimination which exists between the
rights of legitimate and illegitimate children on an
intestacy is "of a kind which can fairly be described as
being invidious
9
or arbitrary."
10
We must also consider
whether the provisio to Article 40.1 justifies this dis-
crimination. The latter consideration will be dealt with first.
Proviso to Article 40.1
The proviso to Article 40.1 undoubtedly acknow-
ledges that there are levels of justifiable discrimination but
it will be noted that it does not state that enactments by
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