The Gazette 1978

GAZETTE

JULY-AUGUST

sought from the putative father, never from the mother.

Once a voluntary agreement under Section 10 of the

1930 Act has been confirmed by Court Order, it is not

necessarily a complete bar on further proceedings under

the Act despite the wording of sub-section 4.

This is as a

result of the new Section 4 (4) (a) and Section 4 (4A)

both of which surprisingly did not, expressly repeal that

sub-section.

Subsequent Maintenance Proceedings

The mother of an illegitimate child, who has entered

into a voluntary agreement under Section 10 of the 1930

Act may institute subsequent maintenance proceedings

against the putative father or the father who admits

paternity under Section 4 (4) (a) or Section 4 (4A) whilst

a third party may only institute such proceedings under

the latter sub-section.

The effective distinction between these two sub-sections

from the natural mother's point of view is that if she

institutes proceedings under Section 4 (4) (a) she must

first prove that an affiliation Order has been made against

the putative father prior to the Order confirming the

voluntary agreement. This is due first of all to the specific

reference to "an Affiliation Order"

which is only

granted once paternity has been established, and secondly

to the direction that the Order under the sub-section be

directed against the "putative father" who by definition,

is a non-existent person until such time as an affiliation

order has been made against him. If, however, the

application is brought under Section 4 (4A) the natural

mother need only prove that the father of the illegitimate

child is not complying with the terms of the voluntary

agreement

and it is immaterial whether or not she has

obtained an affiliation order prior to the execution of the

Section 10 agreement.

The third party, who need not bear any relationship to

the illegitimate child, may still institute maintenance pro-

ceedings under Section 4 (4A) on behalf of the child and

against the putative father if it is proven (a) that he has

failed to provide for it adequately and (b) that an

affiliation order or an order under Section 10 of the 1930

Act has been made against him. Assuming the mother of

the child was financially secure, then it would appear that

if the Court thinks fit, the third party can institute main-

tenance proceedings against her without any of the

foregoing conditions, which apply in the case of the

father, having to be fulfilled. The distinction is again due

to the definition of "putative father". As the third party in

this sub-section is referred to as "any person" it is

conceivable that the illegitimate child could himself

institute maintenance proceedings on his own behalf if he

can prove that one of his parents has "failed to provide

such maintenance for (him) as is proper in the circum-

stances", and furthermore, in the case of his father, that

an affiliation order or an order under Section 10 has been

made against him.

With the passing of Section 28 of the 1976 Act, the

provisions enacted by Sections 9 and 10 of that Act,

which related respectively to the transmission of main-

tenance payments through the District Court Clerk and

attachment of earnings in the case of legitimate children,

were appled equally to illegitimate children.

Section 5 of the 1930 Act had already made provision

for an application to vary, discharge or terminate an

affiliation order and so it was not necessary to extend

Section 6 of the 1976 Act to illegitimate children.

Undoubtedly, it was the legislature's intention in

enacting Section 28 of the 1976 Act to equate the

maintenance rights of legitimate children with those of

illegitimate children. In so far as it is possible to equate

such rights, it is submitted that the legislature succeeded

admirably.

Succession

However, one area not yet dealt with by the legislature

since the passing of the Legitimacy Act 1931, is the law

of succession in relation to illegitimate children. Many

had hoped that the 1976 Act would have made sub-

stantial improvements in this area, but as was frequently

pointed out by Mr. Cooney, the then Minister for Justice,

during the Dail and Seanad Debates which preceded the

passing of that Act, it was entirely a maintenance Act and

nothing more.

The succession issue is one area of the law in which

legitimate and illegitimate children are clearly dis-

tinguished, or as many would argue, an area in which

they are clearly discriminated. Furthermore, it is the one

clear aspect of illegitimacy which epitomises our

"backward" treatment of such children compared to

similar treatment afforded by our fellow European

Countries who have introduced substantial changes in

this field in the past.

In England, the change was inaugurated in 1969 with

the passing of the Family Law Reform Act of that year.

However, whilst an examination of the law of succession

will reveal the very limited extent to which illegitimate

children have been treated by our Legislature in this area,

it is important to note that there have been suggestions

(23) Sect. 10 (4) states: "An order under this section recording the

approval by a Justice of the District Court of an agreement

shall, where no affiliation order has been made in respect of the

illegitimate child to whom such agreement relates, be a

complete bar to proceedings under this Act agains any person

in respect of such child and, where an affiliation order has been

made in respect of such child shall be a complete bar to any

further proceedings under this Act in respect of such child

against the putative father of such child and to all proceedings

under this Act against any other person in respect of such

child."

(24) Enacted by Sect. 28 0) 0») of the 1976 Act.

(25) See Alan Shatter "Family Law in the Republic of Ireland*

particularly at p. 333.

(26) Sect. 3 (I) of the 1930 Act states that on the making of an

affiliation order, the alleged father is deemed to be the "putative

father".

(27) Sect. 4 (4A) (3) (a) of the 1976 Act.

(28) See Sect. 28 (I) (g) which renders the provisions of Sect. 9 of

the 1976 Act applicable to illegitimate children. Also relevant ia

the reference in Sect. 10 of the 1976 Act to "antecedent order"

and this phrase is defined under Sect. 31 (I) (0 of the 1976 Act

as including an order made under the 1930 Act.

(29) Sect. 5 (3) of the 1930 Act was however inserted by Sect. 28 (I)

(i) of the 1976 Act.

(30) "This Bill . . . . abolishes the distinction between legitimates

and illegitimates in regard to the question of maintenance. It

goes no further than that." Dáil Debates Vol. 288 No. 5

Column 774. Mr. P. Cooney.