466 / 482
GAZETTE
DECEMBER 1989
Grant
(Re. J. G. Graham deceased,
12 June, 1989, Gannon J.,
unreported).
(The procedures for seeking a
declaration of parentage are fully
discussed below).
3.
Remoter Relationships than
Parent - Child where the
applicant is claiming through
a person whose parents have
not married each other e.g.
'Non Mariatal Nephew' to
uncle.
Where a t i t le is t raced
t h r ough a person whose
parents have not married each
other it will be necessary for the
applicant to establish that
relationship in the same manner
as described above e.g. a
nephew applying for a Grant in
the estate of his paternal uncle
will have to establish his
parenthood and swear that his
father was the brother of the
deceased.
Firstly the applicant must swear
the usual title in the Oath:
Intestate
''a bachelor wi thout
parent brother or sister
and I am the lawful
nephew
Ihe must then go on to
stateI
being the lawful son of
XX lawful brother of
and who predeceased
the deceased. I beg to
refer to my supple-
mental affidavit sworn
the . . . day o f . . .
establishing my parent-
hood filed herewith."
A separate affidavit establishing
the parenthood of the nephew in
accordance with the requirements
set out in heading 2 above would
also be filed with the Oath.
The Probate Officer would require
this application to be entered in his
ex parte list on motion for consider-
ation. Similarly as above if on the
balance of probabilities the Probate
Officer is satisfied that the necess-
ary requirements have been proved
he will make an order giving liberty
to the applicant to apply for a Grant
of Administration.
WHO IS ENTITLED TO TAKE
PROCEEDINGS SEEKING A
DECLARATION OF
PARENTAGE?
Part V1 of the Act deals with
declarations of parentage, section
35 of the Act confines applications
for declarations to persons born in
the State (other than adopted child-
ren) and persons born outside the
State (other than adopted children)
who can show good and proper
reasons for applying in this juris-
diction. It does not matter that the
alleged parent is deceased (Section
35(2)). Where an application is
made on behalf of a minor the
Court is given power to refuse to
hear the application if it considers
that the minor's interests would be
harmed thereby (Section 35(4)).
The Court will grant the declaration
where parentage is proved on the
balance of probabilities (Section 35
(8)). Any such declaration is
binding on the parties to the pro-
ceedings and on all parties claiming
through them: where the Attorney-
General is joined it is binding on the
State. Section 34 confers the
jurisdiction to grant such declara-
tions on the Circuit Court stating
that such jurisdiction is in addition
to other jurisdiction to grant a
declaration of parentage or to make
an order which has the effect of
such declaration.
As the preamble to the Act
states, one of the new provisions it
introduces is this statutory pro-
cedure which enables any person
to obtain a Court declaration as to
his parentage - formerly only a
mother could take proceedings,
simply claiming a declaration which
would establish a legal relationship
between the father and the child
and not seek any consequential
relief. The new procedure, as stated
above, is also in addition to and will
not supercede or replace the ex-
isting procedure under which a
person's parentage can if it is raised
as a preliminary issue, in say
maintenance or succession pro-
ceedings, be determined for the
purpose of these proceedings. The
new procedure only caters for the
situation where no relief other than
a declaration as to one's parentage
is sought.
It is submitted that Section 35 of
the Act is much too restrictive in
allowing the child only to make an
application for a declaratory order.
In so confining the ambit of such
applications the Act fails in its
objective of seeking to wash away
the status of illegitimacy, except
where absolutely necessary to re-
tain it having regard to the relation-
ship existing between the father
and mother. Where an application
is made for a declaration on behalf
of a minor the Court's power under
Section 35(4) to refuse to hear the
application if it considers that the
minor's interests would be harmed
thereby together with the power
under Section 35(5) to join the
Attorney-General where there is no
other party to oppose the
application, adequately safeguárds
against frivolous or vexatious
applications under the Act.
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