The Gazette 1989

GAZETTE

DECEMBER 1989

accepted to the present day,

however inequitable it may

appear to be in modern times.

An exception has been made

in favour of an illegitimate child

to his/her mother and vice

versa by the Legitimacy Act

1939.

Facts:

Mother of illegitimate

predeceased and maternal 1st

cousins claimed they were his

next-of-kin.

Held:

1. Legislature intended

to include only

legitimate

blood

relations in ascertainment of

the next-of-kin.

2. There was no discrimination

against the child as

was

not deprived because he was

illegitimate Only claim made is

that first cousins were dis-

criminated against, but that

could not succeed on any

constitutional ground.

O B -v- S

[1984] IR 316,

Supreme Court

Held:

1. The Word 1

issue

' in Ss. 67 & 69

of the Succession Act refers only

to legitimate children, as the

Legislature did make provision in

S. 110 for children born outside

marriage having the right in the

particular circumstances therein

referred to (ie. legitimated and

adopted children) to succeed. The

only reasonable construction was

that the Legislature intended the

word 'issue' to refer solely to issue

born within marriage

2. There was no constitutional right

to inherit on Intestacy and any

reference in Article 43 guarantee-

ing a right to inherit property

required only that the State must

not attempt to pass any law to

abolish the general right to inherit

property

bequeathed

by one per-

son to another.

In a third case

Johnston -v-

Ireland,

(1986) 9 EHRR 203,

brought to the European Court on

Human Rights, Ireland was found

to be in breach of its obligations

under the European Convention on

Human Rights. The Court held that

the absence in this country of an

appropriate legal regime reflecting

the natural family ties between

unmarried parents and their child

amounted to a failure to respect

the family life of the parents and

child. The failure to grant

succession rights, in particular,

between a child bom out of

wedlock and his father was

condemned as discriminatory and

held to be in breach of the

Convention.

The Law Reform Commission's

Report on Illegitimacy (LRC - 4 -

1982) recommended the abolition

of the status of illegitimacy. Having

recommended the abolition of the

status in the Report, the Commis-

sion did not limit any of the con-

sequential rights this would confer

on non-marital children or their next

of kin. With the Legislature in the

Status of Children Act 1987

adopting most of the recom-

mendations of the Commission,

Irish Law now goes further than

any other country in the world,

save New Zealand, in granting

equal rights to illegitimate children.

THE STATUS OF CHILDREN

ACT 1987

Purpose

To equalise the rights under law of

all children whether born within or

outside marriage This is achieved

by setting out the general principle

that in this and in all future leg-

islation relationships are to be

determined without regard to

whether the parents of any person

have married each other.

Date off Operation of Act

The Act was enacted on the 14th

day of December 1987. Part 1 of

the Act, with the exceptions of

Sections 3 and 4, came into opera-

tion on the 14th of December

1987. The said Sections 3 & 4 of

Part 1 came into effect on the 14th

of January 1988. However, the

main Parts of the Act, Parts 2-9,

only came into force on the 14th

of June 1988. As Part 5 of the Act

deals with property rights

the 14th

of June

1988 is therefore the

operative date of the Act for

Probate purposes.

Section 3

sets out the general

principle central to the Act:

(i)

In deducing any relationship

for the purposes of the Act

or any Act of the Okeacthas

passed after the commence-

ment of this section the

relationship between every

person and his father and

mother (or either of them)

shad, unless the contrary in-

É 11 •

• i n . i . i r . n » n

I . ..

L .

cannon appears, na uuuMiran-

ed irrespective of whether

his father and mother are or

have been married to each

other and all other relation-

ISLE OF MAN & TURKS

& CAICOS ISLANDS

MESSRS SAMUEL Mc CLEERY

Solicitors, Attorneys-at-Law of the Turks

and Caicos Islands, Registered Legal prac-

tioners in the Isle of Man of 1 Castle

Street,Castletown, Isle of Man, will be

pleased to accept instructions by their

senior resident partner, Mr. Samuel

McCleery from irish Solicitors in the forma-

tion of resident and non-resident I.O.M.

Companies and exempt Turks and Caicos

Island Companies.

Irish Office.

26 South Frederick Street, Dublin 2.

Telephone: 01 -760780 Fax: 01 -764037.

I.O.M. Office: Telephone : 0624-822210

Telex : 628285.

Fax : 0624-823799

London Office: Telephone : 01-8317761

Telex : 297100 Fax : 01-8317485.

ships shaH be determined

accordingly.

(ii) An adopted child is deemed

from date of adoption to be the

child of the adoptors and not

the child of any other person.

The adoption order terminates

the legal relationship between

the child and his natural par-

ents; all rights (including

succession rights) and obliga-

tions between the parties cease

from date of order.

Rart V (Sections 26-32) deals with

property rights and so affects

Wills

(and other dispositions) and

Intestate Succession.

WNs (Section 27)

The operative date of the Act is

for aN Wills

made on or after

the

14th day of June 1988.

A Coidcil

made after the 14th of June 1988

does not bring an earlier dated Will

under the operation of the Act -

(Section 27 (7) below).

INTESTATE

SUCCESSION

(Section 29)

The operative date of the Act is for

all

deaths Intestate on or after the

14th day of June 1988.

WILLS - SECTION 27

Subsection (1)

states that "in any

Will (or other disposition) made

after the 14th of June 1988 any

relationship between persons shall

be determined in accordance with

Section 3 of this Act."

Before the 14th of June 1988 a

Will which referred to 'child' or

'issue' was construed as referring

only to a legitimate child or issue

Now a Will made after this date

4 0 3