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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
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
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
Now Available
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