The Gazette 1989

GAZETTE

DECEMBER 1989

Grant (Re. J. G. Graham deceased, 12 June, 1989, Gannon J., unreported). (The procedures for seeking a declaration of parentage are fully discussed below). 3. Remoter Relationships than Parent - Child where the applicant is claiming through a person whose parents have not married each other e.g. 'Non Mariatal Nephew' to uncle. Where a t i t le is t raced t h r ough a person whose parents have not married each other it will be necessary for the applicant to establish that relationship in the same manner as described above e.g. a nephew applying for a Grant in the estate of his paternal uncle will have to establish his parenthood and swear that his father was the brother of the deceased. Firstly the applicant must swear the usual title in the Oath: Intestate ''a bachelor wi thout

The Probate Officer would require this application to be entered in his ex parte list on motion for consider- ation. Similarly as above if on the balance of probabilities the Probate Officer is satisfied that the necess- ary requirements have been proved he will make an order giving liberty to the applicant to apply for a Grant of Administration. WHO IS ENTITLED TO TAKE PROCEEDINGS SEEKING A DECLARATION OF PARENTAGE? Part V1 of the Act deals with declarations of parentage, section 35 of the Act confines applications for declarations to persons born in the State (other than adopted child- ren) and persons born outside the State (other than adopted children) who can show good and proper reasons for applying in this juris- diction. It does not matter that the alleged parent is deceased (Section 35(2)). Where an application is made on behalf of a minor the Court is given power to refuse to hear the application if it considers that the minor's interests would be harmed thereby (Section 35(4)). The Court will grant the declaration where parentage is proved on the balance of probabilities (Section 35 (8)). Any such declaration is binding on the parties to the pro- ceedings and on all parties claiming through them: where the Attorney- General is joined it is binding on the State. Section 34 confers the jurisdiction to grant such declara- tions on the Circuit Court stating that such jurisdiction is in addition to other jurisdiction to grant a declaration of parentage or to make an order which has the effect of such declaration.

As the preamble to the Act states, one of the new provisions it introduces is this statutory pro- cedure which enables any person to obtain a Court declaration as to his parentage - formerly only a mother could take proceedings, simply claiming a declaration which would establish a legal relationship between the father and the child and not seek any consequential relief. The new procedure, as stated above, is also in addition to and will not supercede or replace the ex- isting procedure under which a person's parentage can if it is raised as a preliminary issue, in say maintenance or succession pro- ceedings, be determined for the purpose of these proceedings. The new procedure only caters for the situation where no relief other than a declaration as to one's parentage is sought. It is submitted that Section 35 of the Act is much too restrictive in allowing the child only to make an application for a declaratory order. In so confining the ambit of such applications the Act fails in its objective of seeking to wash away the status of illegitimacy, except where absolutely necessary to re- tain it having regard to the relation- ship existing between the father and mother. Where an application is made for a declaration on behalf of a minor the Court's power under Section 35(4) to refuse to hear the application if it considers that the minor's interests would be harmed thereby together with the power under Section 35(5) to join the Attorney-General where there is no other party to oppose the application, adequately safeguárds against frivolous or vexatious applications under the Act.

parent brother or sister and I am the lawful nephew Ihe must then go on to stateI being the lawful son of XX lawful brother of and who predeceased the deceased. I beg to refer to my supple- mental affidavit sworn the . . . day o f . . . establishing my parent- hood filed herewith."

A separate affidavit establishing the parenthood of the nephew in accordance with the requirements set out in heading 2 above would also be filed with the Oath.

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