The Gazette 1977

A P R IL 1977

GAZETTE

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

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. v. L. 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 ER which dated back to the nineteen-twenties and the well known rule in Russell v. 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

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

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