The Gazette 1977

GAZE1TE

DECEMBER1977

illegitimate child himself—can issue proceedings against

"a parent of a child who has failed to provide such

maintenance for the child as is proper in the

circumstances". If an action under this subsection is

being brought against the putative father, the third party

must first establish that an affiliation order was earlier

made against that father.

The maximum amount that a District Court can now

award to mothers of illegitimate children is £15 per week

for each child and the order will run from a date not

earlier than the date on which the order is made to the

date of the happening of one of the events specified in

S.28 (1) (h) of the 1976 Act which includes the date that

the Court, upon application under S.5 of the 1930 Act as

amended, agrees to prematurely terminate the order.

What Must be Established before an Affiliation Order will

be Granted? There are basically three requirements to

be fulfilled under this heading;

(1) The application must be brought within the

specified time limit.

(2) The District Justice must hear the evidence of the

mother.

(3) The evidence of the mother

must

be corroborated in

some material particular or particulars.

It is the latter point which invariably causes most

difficulty. Mere opportunity is not sufficient but if the

mother could produce, for example, a letter written by the

putative father admitting paternity or promising support

for the child, this would undoubtedly be sufficient

corroboration.

Can an Affiliation Order be Renewed?

If an affiliation order has been discharged by the

District Court or payments have ceased to be payable,

that Court may at any time thereafter, notwithstanding

anything in the 1930 Act, order the putative father to

make payments to the child in such amounts and for such

period as the Court may specify and the said order shall,

for all intent and purposes, be treated as an affiliation

order.

The order, however, can only be made so long as

the person for whose benefit it is made is a "child" as

defined by S.28(l) (a) of the 1976 Act.

If a putative father dies, the liability for payment of the

periodical sum under the affiliation order attaches to his

estate as a civil debt

but his personal representatives can

apply to the District Court under S.8(l) of the 1930 Act

to have the periodical sum commuted by payment of a

lump sum to be determined by the District Justice. The

person to whom the periodical sum is payable can also

make a similar application on the death of the putative

father.

Should the putative father desire at any time during his

lifetime to have the periodical sum commuted by payment

of a lump sum, he may make an application under S.8 of

the 1930 Act and if the District Justice can satisfy himself

as to the provisions of S. 3 and 4 of that Section he may

grant the order.

As a result of S.3(10) of the 1930 Act

payments

under affiliation orders, like maintenance orders, can be

made payable through the District Court Clerk and the

provisions of S.9 of the 1976 Act apply in this regard.

Furthermore, since the passing of the Maintenance

Orders Act 1974, affiliation orders, along with

maintenance orders have become reciprocally enforceable

in both Ireland and England.

If the putative father makes a voluntary and binding

agreement in favour of the illegitimate child and this

agreement is approved by the District Court

then it is a

complete bar

to all further proceedings under the 1931

Act.

The putative father may be ordered upon an

application being brought under S.6 of the 1930 Act as

amended to pay a sum not in excess of £200 for the

purpose of apprenticing the child to a trade. This order

can be made even if an affiliation order is still in force.

However the child must be aged between 14-16| years.

Where the illegitimate child dies, the putative father

can similarly be ordered to pay a sum not in excess of

£200 to defray the funeral expenses.

Succession Rights

The succession rights of an illegitimate child on an

intestacy are extremely limited and are contained in S.9 of

the Legitimacy Act 1931 (hereinafter called the 1931

Act). However one cannot say that the extent of those

rights are entirely clear and S.9 of the 1931 Act must be

read in conjunction with the provisions of the Succession

Act 1965 (hereinafter called the 1965 Act). If the mother

of an illegitimate child lies intestate and leaves no legitimate

issue surviving her, then the illegitimate child shall be

entitled to take all, even seemingly, if a parent of the mother

is still alive. If the mother is survived by a husband and an

illegitimate child then it would seem that under S.9 (1) of

the 1931 Act, that child is treated as if he had been lx)rne

legitimate for the purposes of succession so that the father

is entitled to jrds of the estate and the child {rd.

However

there is also a sustainable argument that the father is

entitled to the entire estate to the exclusion of the

illegitimate child. The matter must therefore await

clarification by the Courts.

If the illegitimate child dies intestate and is survived by

his mother then she shall take all. But if there are any

lawful issue of that illegitimate child surviving, they take

priority over the mother in accordance with the provisions

of S.67(3) of the 1965 Act. Such then are the entire

intestation succession rights of an illegitimate child on any

intestacy.

Declarations of Legitimacy

The Legitimacy Declaration Act (Ireland) 1868

enables a person to apply to the Circuit or High Court for

a declaration of legitimacy to establish his legitimacy or

the legitimacy of any child of his or any of his parents or

remoter ancestors.

For an interesting historical introduction to the law of

illegitimacy prior to the 1930 and 1931 Acts, one should

read the judgment of Gavan DufFy P. in the case of In Re

M. an Infant (1946) I.R. 334.

NOTES:

(1) Amended by S. 19 of the 1971 Act and S.28 of the 1976 Act.

(2) Inserted by S.28(l)(h) of the 1976 Act.

(3) S.2 of the 1930 Act as amended by S.28(1) (b) of the 1976 Act.

(4) Contrast thejudgments in Norwood v. Scott(1939) 73 1LTR200

with that of Cahill v. Reilly 1957 Ir. Jur. Rep.77

(5) S.4 and S.4(b) of the 1930 Act as inserted by S.28(l) (h) of the

1976 Act.

(6) S.4(5) of the 1931 Act inserted by S.28(l)(h) of the 1976 Act.

(7) Inserted by S.28( 1) (g) of the 1976 Act.

(8) S. 10 of the 1930 Act.

(9) Subject to S.4(4A) and (also seemingly) S.4(4) (a) of the 1930

Act as inserted by S.28( 1) (h) of the 1976 Act.

(10) S.67(2) of the 1965 Act should be read alongside S.9(l) of the

1931 Act with regard to this point.

(11) Amended by S.2(l) of the 1931 Act and S.20 of the 1971 Act.

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