Sub-section (1) of Section 1 reads :—
Subject to the provisions of this section where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Act, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in Saorstát Eireann, render that person, if living, legitimate from the commencement of this Act, or from the date of the marriage, whichever is the later.
The word "parents" there does not indicate who the parents are. The essential point is what the parents of the child specify. If the two people state when they marry, or later, that they are the parents of the child, I am satisfied.
There must be a declaration from the father or it must be otherwise established. If he says " No," it will be hard to have it established.
Later on it says a man or girl, if they go before a Registrar and prove certain things, can be registered as being the children. That leaves it over for years, and it may be impossible to prove it then. All we want is that the alleged father shall state that he is the father.
The schedule deals with registration. We will come to that afterwards. Sub-section (2) reads :—
Nothing in this Act shall operate to legitimate a person unless the father and mother of such person could have been lawfully married to one another at the time of birth of such person or at some time during the period of ten months preceding such birth.
This is different from the English section, but I think it has exactly the same effect. There has been a decision on the English section already. The English sub-section reads : " Nothing in this Act shall operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born." Of course a person who is married to a third person cannot marry. There has been a curious but a proper decision. The father and mother of the illegitimate child subsequently married, but at the date of the birth of the child the father was married to another lady. That marriage was subsequently declared void. It was a perfectly good marriage as far as Church law was concerned, but there were technical defects. It may not have been a valid marriage. It was, therefore, held that that child was legitimated although really it was the offspring of an adulteress. I think that as the Committee's views on this matter will depend some-what on its views on the schedule, we might well defer the further consideration of Section 1 until we come to the schedule.
Further consideration of Section 1 deferred accordingly.
Apparently these are purely proceedings for declarations of legitimacy.
I have here the report of the Special Committee of the Dáil on the Bill.
Apparently this Bill was completely metamorphosed by the Committee of the Dáil. It is now, for practical purposes, the same as the British Bill. The Act of 1868 enables persons resident in Ireland to establish their legitimacy and the right to be deemed natural-born subjects, and also the right to apply by petition to what was then the Court of Probate in Ireland—in our Bill it will be the Circuit Court—to obtain a declaration of legitimacy for themselves and for their ancestors. That is where your point would arise, Senator Colonel Moore. Are you afraid that unless the father was there they could not do it ?
It would be difficult.
This Act of 1868 enabled a person to get a declaration of legitimacy to prove that his father and mother were married.
It leaves the matter open. Ten or twenty years later it would be a difficult thing to prove that he was that son or daughter.
You could prove after the death of the father of the illegitimate child, by his admissions or by the course of conduct he adopted with reference to the child, that he was the father of the child, even though he was not there to admit it himself.
Would not it simplify the matter if Senator Colonel Moore's suggestion were adopted and that we made a provision asking for a declaration at the time of the marriage ?
Question—" That Section 2 stand part of the Bill "—agreed to.
Section 3, sub-section (1) says : " Subject to the provisions of this Act, a legitimated person and his spouse, children or more remote issue shall be entitled to take any interest : (a) in the estate of an intestate dying after the date of legitimation ; (b) under any disposition coming into operation after the date of legitimation ; (c) by descent under an estate in tail created after the date of legitimation." That is simply to give a person a right to be considered one of the next-of-kin or the heir at law.
It was on this section that Senator Comyn based his whole argument. He argued that where the mother had property and had a family, other than an illegitimate child, the illegitimate child should share in the property. If that property came to the mother through the father I do not see why the illegitimate child should share, but if it was her own property it would be different altogether.
It must have become her property from her husband.
If it came through her husband it is rather hard that the illegitimate child should share.
Once it becomes her property I do not see why you should alter it.
If her lawful husband made no will, and if she had children, she would get one-third of the property, and that would become her own.
If the husband feels strongly on the matter he need not leave anything to her.
She can make a will if she likes ; but if she does not, her property will go equally among the children, including the illegitimate child.
If the husband leaves his whole property to the wife, as is often done, the mother would have as much interest in one lot of children as in the other and would divide the property equally.
If he thinks that that is a danger he may make provision to provide against it.
He could give her a power of appointment over his own children. Sub-section (2) says " Where the right to any property, real or personal, depends on the relevant seniority of the children of any person, and those children include one or more legitimated persons, the legimitated person or persons shall rank as if he or they had been born on the day when he or they became legitimated by virtue of this Act, and if more than one such legitimated person became legitimated at the same time, they shall rank as between themselves in order of seniority."
Would that date be the date of the marriage or the date on which the father declared ?
The date of the marriage.
Then he would become the heir straight away, because there could be no other children for another year.
There may be children of a previous marriage and children of this marriage, and there may be subsequent children of the parents. That is the real point.
He becomes senior to subsequent children ?
Yes.
As a rule the marriage takes place after the birth of the first child.
Even so, a child born in adultery has priority over a child born in wedlock.
I think that that makes Senator Colonel Moore's suggestion more important, that there should be a declaration at the time.
Sub-section (3) is really the same as the previous one. It says : " Where property real or personal or any interest therein is limited in such a way that if this Act had not been passed it would (subject or not to any preceding limitations or charges) have devolved (as merely as the law permits) along with the dignity or title of honour, then nothing in this Act shall operate to sever the property or any interest therein from such dignity or title of honour, but the same shall grow and devolve (without prejudice to the preceding limitations or charges aforesaid) in like manner as if this Act had not been passed." That applies to settled family estates. Sub-section (2) makes the illegitimate child when legitimated the eldest child, but he is not to become the eldest child in respect to property, dignity, or titles.
That is a very questionable thing. I know the cases of two well-known families in the West of Ireland. In one case the father was married to the woman and believed the marriage to be valid. It was a mixed marriage. The father was a Protestant and the woman was a servant in the house. They were married before a Catholic priest and the woman believed that that marriage was valid. There were three children, all sons. She found out suddenly that the marriage was not valid, and she left the house declaring that she would not come back unless she was properly married. She was properly married, and the next son became the heir to the estates and the title, and the three others were illegitimate.
This will make them legitimate.
People thought that that was not fair. One son was a member of Parliament and was always known as the Honourable So-and-So.
That is exactly the sort of case to which this sub-section will apply.
It leaves it as it stood before.
The title and the estates attached to the title would not be affected.
Why should they not ?
That marriage would be legal now under the present law.
It was illegal at the time, but it would be legal now.
There are two cases in County Galway of people in most prominent positions. In one case there was a large family of twelve or thirteen children and the woman was also a servant. The parents were not married until the last two daughters were born. Before they were born the marriage took place and these two children were the only legitimate children of the family.
This Act will make all those people legitimate, though the marriage took place before the passing of the Act. So far as title and dignity are concerned we must remember that the question of dignity and title is not a question of law but one for the Lords themselves. The question of legitimacy would have to go before one of the Committees of the Peers. It is not a matter for a court. All this section is doing is to say that where people have settled property in such a way that it is to go with the title this Act will not make any difference.
Why estates ?
If men leave their estates in that particular way they have a right to do so.
The legitimacy of the elder son has not to do with the devolution of property.
I am just questioning whether it is right or wrong.
It is not a matter of statue law at all.
We practically do not recognise titles at all.
We are only saying that it is not to affect devolution of property with which we can deal.
On the question of titles ?
We have nothing to say to that. What Senator Colonel Moore would wish is that we could say that the title is to go to the legitimated elder son.
There would be a difficulty about that. We do not recognise titles at all. We do not acknowledge them and by putting that in we would be acknowledging them. I would not like to meddle with that part, but I suggest that perhaps it would be right to let the estate go.
Away from the title to the legitimated elder son ? That would be unfair if it had been settled by the parties themselves that the property should follow the title. I think we ought not to do that.
On a question of other property where there is no title involved, say where there was a very large property fifty years ago, will this Bill open a right to all those people to upset the settlement of that property ever since ?
No, it would not. It does not alter the devolution of settled property at all unless in the settlement there is a provision that the father or the mother is to have the power of appointing the property among the children. " Children " would then include the legitimated child and in that way would be giving the father and the mother power to include the legitimated child.
Up to the present when an illegitimate child died intestate in this country, its property went to the State. Down to 1926 in England when an illegitimate person died the property went to the State also. What used to happen was that if they had poor relations they petitioned the Crown, and the Attorney-General or the Solicitor-General used to hold an inquiry and the State voluntarily gave the property to these people. Now once a person is legitimated if he or she dies intestate he has next-of-kin and heirs-at-law. That is a very proper conclusion.
