The Gazette 1978

JANUARY/FEBRUARY 1978

GAZETTE

duty deceased may have owed to any illegitimate children, (b) Deceased, by living with Defendant as her husband, undertook moral obligations to her; there was evidence to show that these continued until ' date of death. That such moral duty, resulting from the fact of the marriage and relationship be tween decea s ed and Defendant, could not be affected by any decision of the Court not to recognise such marriage. 3. In relation to the second question above upon the facts of the present application: (a) As the children of the second ma r r i a ge we re not beneficiaries nor had made any application under Section 117, any Order made by the Court in relation to deceased's estate would not affect such children and the status of such children was thus irrelevant. (b) As the first wife had

Plaintiffs brought claim under Section 117 of the Succession Act 1965 that deceased failed in his moral duty to make proper provision for them and sought an Order that provision be made for them out of deceased's Estate as the Court thought just. Counsel for the Plaintiffs submitted in opening that he proposed to call evidence, the legal effect of which was that the English Court had no jurisdiction to grant a divorce to deceased and his first wife, the mother of the Plaintiffs, and that such decree was in the eyes of Irish Law a nullity and recognition could not be given to it. He made further submissions on the construction of Section 117. Counsel for the Defendant submitted that it was undesirable to hear evidence in relation to the validity of the divorce decree unless it was absolutely necessary to do so and submitted that if Section 117 were interpreted c o n t r a ry to the P l a i n t i f fs submissions, such evidence and die validity of the second marriage might not be relevant. Costello, J. agreed with this latter submission and decided to consider as a prior issue the construction of Section 117 and whether the validity of the second marriage was relevant to a determination of the present application and having done so held: 1. In all proceedings under Section 117 there are two issues to be determined by the Court. (a) Whether there has been any failure of testator in the moral duty, referred to in the Section, which he owed to the applicants; and (b) The provision which the Court 2. In relation to the first question above upon the facts of the present application: (a) Section 117 (2) requires that the Court bear in mind all the moral duties which the testator had at date of death and not only obligations which could be enforced under the Act. A Testator has a moral duty to illegitimate children. In adjudicating upon a claim by legitimate children under Section 117, the Court must take into account the moral should make out of the * testator's estate for the applicants (this question only arises for determination if the answer to the first question is in the affirmative).

Northern Ireland was to consist of the parliamentary Counties of Ant r im, Armagh, Down, Fermanagh, Londonderry, and Tyrone, and the Parliamentary Bo r o u g hs of Be l f a st and Londonderry. The State has therefore recognised the existence of Northern Ireland and has, for the purposes of our legislation, fixed its boundaries. " T h e Su p r eme C o u r t , unanimously, per O'Byrne J., in the case of the People v. Ruttledge and Davidson , May, 1947, had correctly applied S.3 of the Adaptation of Enactments Act, 1922, and stated that the expression 'United Kingdom* therein should be split up into' its component parts — 'Great Britain' and 'Ireland'. In that case, the expression 'Ireland' was applied to the Irish Free State, but since the e n a c t me nt of t he p r e s e nt Constitution, it is obviously applicable to the area at present described as 'The Republic of Ireland'. This leads to the remarkable conclusion that, due to the Theft Act, 1968, it is not a crime under our law to receive or have possession in this State of goods stolen in Britain". The appeal was dismissed unanimously by the Court. The State (Joachim Gflsenan) v. District Justice MeMorrow - Full Supreme Court (per Henchy J. with O'Higgins, CJ . and Griffin and Parke JJ. concurring and Kenny J. concurring in a separate assenting Judgment). — unreported — 27 January, 1978. Su c c e s s i on Act 1965 — Construction ofSection 117— Issues to be determined in all applications under S. 117 — Conclusion, nature and extent of moral duty of deeeased not affected by validity of second marriage. Plaintiffs were the only children of deceased's first marriage. Deceased obtained divorce from first wife in England in 1951 and remarried Defendant in same year. There were two children by marriage of deceased and Defendant. By Will made 23 August 1960 deceased bequeathed all his property to Defendant if she survived him by six months. She did and became so entitled. SUCCISSION ACT

renounced her legal right and the second wife elected for bequest and was not the mother of Plaintiffs, it was unnecessary to consider for the purposes of Section 117 (3) who is the "Spouse" as the Court can make unlimited provision for the Plaintiffs out of the estate of deceased, whichever be the spouse.

From these findings it was concluded that the nature and extent of the moral duties of the deceased at the date of his death, including those he may have owed to his second wife could not be affected by the Court's decision that it should not recognise the validity of the second marriage. Thus the validity of the English divorce was not relevant to any of the issues that arose in these proceedings. MX. and A.W. v. MX. — High Court — Costello, J. — unreported — 22 November, 1977.