The Gazette 1977

GAZETTE

1977

S.A.D.S.I. Inaugural—Friday, January 28th, 1977

ILLEGITIMACY IN IRISH LAW - FILIUS

NULLIUS?

Ciaran A. O'Mara, B.C.L., (Auditor 1976 / 77)

SOL I C I TORS' APPRENT I CES

DEBAT ING

SOCIETY OF IRELAND

The 93rd Inaugural Meeting of this Society was held in

the Library of Solicitors' Buildings on Friday, 28th

January, 1977, at 8.00 p.m. The President, Mr. Bruce St.

St. John Blake, presided. The minutes of the previous

meeting were then read with the customary humour and

irrelevancies.

The President then presented the following awards for

the 92nd Session:-

Oratory

Incorporated Law Society's Gold Medal: Thomas

Murran, LL.M.

Society's Silver Medal: Maria Durand.

Legal Debate

President's Gold Medal: Ciaran O'Mara, B.C.L.

Society's Silver Medal: Jacqueline Maloney.

Impromptu Speeches

Vice-President's Gold Medal: Neal Lamb, B.C.L.

Society's Silver Medal: Michael D. Murphy.

Irish Debate

Society's Parchment: Eugene Tormey, B.C.L.

First Year Speeches

Society's Silver Medal: Niall King.

Replical of Auditorial Insignia

Niall Sheridan, B.C.L.

The President then called on the Auditor, Mr. Ciaran

A. O'Mara, B.C.L. to deliver his Inaugural address on

Illegitimacy in Irish Law — FSlius Nullius? In the course

of his address, the Auditor said:-

Family Law could be said in recent years to have

become a much more publicised branch of the law.

Knowledge and information have dramatically spread,

leading to pressure for reform. As a result legislation has

been enacted dealing with succession, maintenance and

the family home. However, it can be said, I think fairly,

that our approach to the crises of family breakdown and

insecurity has been piecemeal.

The new Family Law (Maintenance of Spouses and

Children) Act, 1976, is a prime example of the response

of our Legislators. It provides a basic District Court

remedy for failure to maintain one's spouse and children.

However, in practice, this Act is being used by lawyers as

a general solution to marital breakdown—likewise with the

Guardianship of Infants Act 1964 in the High Court. I

feel that we have as yet only scratched the surface of

family problems. Short-term and interim answers do little

about the root causes of the misery that is increasingly

evident in Irish family life. We must get down to the basic

problems and particularly to the structure of the Family

in Irish society.

Irish Family Law reflects the constitutional and social

precepts upon which our society is founded. The Canon

Law influenced the Common Law system which we have in

this country, and this meant that the law adopted the

Christian view of the family, based on marriage. It would

seem that the 1937 Constitution entrenched this view in

Article 41, which states: "The State pledges itself to guard

with special care the institution of Marriage, on which the

Family is founded, and to protect it against attack''. Our

judges have accepted this as delimiting the family to the

marital sphere. The majority viewpoint in

McGee v.

Attorney General

[1974] I.R. 284 clearly enunciated

privacy as a personal right of married persons and Kenny

J. in

McN.

in 1970 considered that a mother and her

illegitimate child were not a family within the meaning of

Article 41.

So we can see that our law clearly draws a distinction

of status between those who are part of a formal family

and those who are not. This distinction has the role of

underlining the concepts of morality which our society

accepted. Amongst Church and State, there is general

agreement that we must protect the institution of Marriage

and its effects on public morality as being fundamental to

the fabric of society. What concerns us is the effect of this

distinction both in law and in general social terms on

those who fall outside the fold.

Historically, the attitude of the Common Law towards

illegitimacy reflected the Canon Law approach just as it

followed the general view of the Church on marriage.

Fornication and adultery are sinful, therefore the product

of those sins must be discriminated against. Children born

out of wedlock had to suffer to deter adults from

committing sin. The Common Law adopted this approach

by forming the rule that no child can be legitimate unless it

is either born or conceived in wedlock. This rule was

actually worse than the Canon Law in that it would not

allow a child whose parents married after its birth to be

legitimate, and also in that it caused the issue of

an annulled marriage to be rendered illegitimate

retrospectively. It should be pointed out that our

legislators caught up with the Church in the Legitimacy

Act, 1931, when the doctrine of legitimation by

subsequent marriage was accepted. The Attorney General

in his recent discussion paper on Nullity proposes to

accept the doctrine of the putative marriage by deeming

issue of annulled marriages legitimate. (Curiously though,

this proposal does not find concrete expression in the

accompanying draft Bill!).

The Common Law tempers its harsh approach to

illegitimacy by a strong presumption in favour of

legitimacy. If intercourse took place at or near the time of

conception, between husband and wife, despite the wife's

adulterous relationship with another man, then it is

difficult to rebut the presumption of legitimacy.

An interesting illustration of this point is the recent and

almost Dickensian

Ampthill Peerage Case (1976) 2 All

which dated back to the nineteen-twenties and the

well known rule in

Russell

Russell.

As Lord Simon of

Glaisdale said, "If ever there was a family, seemingly

blessed by fortune, where the birth of a child was attended

by an evil spirit bearing a baneful gift liable to frustrate all

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