The Gazette 1989

GAZETTE

DECEMBER 1989

condemned as discriminatory and held to be in breach of the Convention. The Law Reform Commission's Report on Illegitimacy (LRC - 4 - 1982) recommended the abolition of the status of illegitimacy. Having recommended the abolition of the status in the Report, the Commis- sion did not limit any of the con- sequential rights this would confer on non-marital children or their next of kin. With the Legislature in the Status of Children Act 1987 adopting most of the recom- mendations of the Commission, Irish Law now goes further than any other country in the world, save New Zealand, in granting equal rights to illegitimate children. 3. THE STATUS OF CHILDREN ACT 1987 Purpose To equalise the rights under law of all children whether born within or outside marriage This is achieved by setting out the general principle that in this and in all future leg- islation relationships are to be determined without regard to whether the parents of any person have married each other. Date off Operation of Act The Act was enacted on the 14th day of December 1987. Part 1 of the Act, with the exceptions of Sections 3 and 4, came into opera- tion on the 14th of December 1987. The said Sections 3 & 4 of Part 1 came into effect on the 14th of January 1988. However, the main Parts of the Act, Parts 2-9, only came into force on the 14th of June 1988. As Part 5 of the Act deals with property rights the 14th of June 1988 is therefore the operative date of the Act for Probate purposes. Section 3 sets out the general principle central to the Act: (i) In deducing any relationship for the purposes of the Act or any Act of the Okeacthas passed after the commence- ment of this section the relationship between every person and his father and mother (or either of them) shad, unless the contrary in- É 11 • II • i n . i . i r . n » n I . .. J ^ A ^ M L .

accepted to the present day, however inequitable it may appear to be in modern times. An exception has been made in favour of an illegitimate child to his/her mother and vice versa by the Legitimacy Act 1939. Facts: Mother of illegitimate predeceased and maternal 1st cousins claimed they were his next-of-kin. Held: 1. Legislature intended to include only legitimate blood relations in ascertainment of the next-of-kin.

ISLE OF MAN & TURKS & CAICOS ISLANDS MESSRS SAMUEL Mc CLEERY Solicitors, Attorneys-at-Law of the Turks and Caicos Islands, Registered Legal prac- tioners in the Isle of Man of 1 Castle Street,Castletown, Isle of Man, will be pleased to accept instructions by their senior resident partner, Mr. Samuel McCleery from irish Solicitors in the forma- tion of resident and non-resident I.O.M. Companies and exempt Turks and Caicos Island Companies. Irish Office. 26 South Frederick Street, Dublin 2. Telephone: 01 -760780 Fax: 01 -764037. I.O.M. Office: Telephone : 0624-822210 Telex : 628285. Fax : 0624-823799 London Office: Telephone : 01-8317761 Telex : 297100 Fax : 01-8317485. ships shaH be determined accordingly. (ii) An adopted child is deemed from date of adoption to be the child of the adoptors and not the child of any other person. The adoption order terminates the legal relationship between the child and his natural par- ents; all rights (including succession rights) and obliga- tions between the parties cease from date of order. Rart V (Sections 26-32) deals with property rights and so affects Wills (and other dispositions) and Intestate Succession. WNs (Section 27) The operative date of the Act is for aN Wills made on or after the 14th day of June 1988. A Coidcil made after the 14th of June 1988 does not bring an earlier dated Will under the operation of the Act - (Section 27 (7) below). (Section 29) The operative date of the Act is for all deaths Intestate on or after the 14th day of June 1988. WILLS - SECTION 27 Subsection (1) states that "in any Will (or other disposition) made after the 14th of June 1988 any relationship between persons shall be determined in accordance with Section 3 of this Act." Before the 14th of June 1988 a Will which referred to 'child' or 'issue' was construed as referring only to a legitimate child or issue Now a Will made after this date INTESTATE SUCCESSION

2. There was no discrimination against the child as he was not deprived because he was illegitimate Only claim made is that first cousins were dis- criminated against, but that could not succeed on any constitutional ground. O B -v- S [1984] IR 316, Supreme Court Held: 1. The Word 1 issue ' in Ss. 67 & 69 of the Succession Act refers only to legitimate children, as the Legislature did make provision in S. 110 for children born outside marriage having the right in the particular circumstances therein referred to (ie. legitimated and adopted children) to succeed. The only reasonable construction was that the Legislature intended the word 'issue' to refer solely to issue born within marriage 2. There was no constitutional right to inherit on Intestacy and any reference in Article 43 guarantee- ing a right to inherit property required only that the State must not attempt to pass any law to abolish the general right to inherit property bequeathed by one per- son to another. In a third case Johnston -v- Ireland, (1986) 9 EHRR 203, brought to the European Court on Human Rights, Ireland was found to be in breach of its obligations under the European Convention on Human Rights. The Court held that the absence in this country of an appropriate legal regime reflecting the natural family ties between unmarried parents and their child amounted to a failure to respect the family life of the parents and child. The failure to grant succession rights, in particular, between a child bom out of wedlock and his father was

cannon appears, na uuuMiran- ed irrespective of whether his father and mother are or have been married to each other and all other relation-

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