The Gazette 1977

GAZE1TE

DECEMBER1977

agreement in favour of the illegitimate child and this agreement is approved by the District Court 8 then it is a complete bar 9 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. 10 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 11 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. (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. 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.

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. 3 (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. 4 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. 9 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 6 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 7 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

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