The Irish Constitution envisages the ‘family’ as one based on marriage alone. Clearly this leads to huge difficulties for the many non-marital families in Ireland. (This article should be read in conjunction with this one which deals with changes in January, 2016).
However it has been held that non marital children have the same ‘natural and imprescriptible rights’ as marital children under article 42 of the Constitution.
Unlike the rights of the family under article 41 of the Constitution, the rights of the non-marital mother to the custody and care of her child can be transferred or lost if she abdicates her rights and duties to the child.
However, the non-marital father has no such constitutional rights and has no natural rights to the custody of the child (unlike the non-marital mother).
Before the Status of Children Act, 1987 a non-marital child was ‘illegitimate’ and could not be legitimated even if the parents married. The Status of Children Act, 1987 provides that the ‘illegitimate’ child becomes legitimate once the parents marry.
Guardianship
Prior to the Status of Children Act, 1987 the guardian of a non-marital child was the natural mother. After the passing of this act, a father can now apply to be made a joint guardian with the natural mother under section 12.
A father can also become a guardian under an informal procedure provided by the Children Act, 1997 provided the mother agrees. This involves a statutory declaration signed by both parties.
Guardianship means that a guardian must be consulted in relation to all aspects of the child’s upbringing.
All applications for guardianship will be considered in the light of the welfare of the child as set out in the Guardianship of Infants Act, 1964.
The non-marital father can apply to Court to become a guardian under section 6 A of the Guardianship of Infants Act, 1964.
However the Children Act, 1997 provides for a simpler way of the father becoming a guardian by way of a statutory declaration of both parents agreeing to the appointment of the father as a guardian. (S.I. No. 5/1998 — Guardianship of Children (Statutory Declaration) Regulations, 1998) This does away with the need to attend Court to be appointed a guardian.
Once the father has been appointed, he can only be removed by the Court.
Section 43, Children and Family Relationships Act, 2015 improved the situation further for unmarried fathers by providing guardianship for unmarried fathers:
have been cohabitants for not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and father have lived with the child.
Custody and Access
Custody is the date to day physical care and control of the child.
Access is the right to see and communicate with the child.
As outlined above, the natural mother has a constitutional right to the custody of the child but the natural father does not in a non-marital family.
However, the father can apply to Court for a custody and access order under the Guardianship of Infants Act, 1964, section 11(4).
The most common applications by fathers is for an access order but he may also seek custody where the child is not being looked after by the mother.
Maintenance
An unmarried man or woman has no legal entitlement to seek maintenance from the other party for him/herself. However, he/she can seek maintenance for the support of the children (Family Law (Maintenance of Spouses and Children) Act, 1976)
The Status of Children Act, 1987 provides that a maintenance order cannot be made against a person unless it is proved on the balance of probabilities that the person is the parent.
Succession
Since June, 1988, thanks to the Status of Children Act, 1987 children born outside of marriage have the same succession rights as marital children.
This means that a child born outside marriage can bring legal proceedings challenging a parent’s will if s/he is disappointed and can claim a share of the parent’s estate where there is no will.
It is strongly advisable for a single mother to make a will nominating guardians in the event of her death. If she doesn’t, the child will have no guardian.
The Status of Children Act, 1987 also provides for declarations of parentage. These types of declarations are important in probate cases.
Where parentage is in question, Courts can order the taking of blood tests or DNA tests.
The Status of Children Act, 1987 also introduced a presumption of paternity. This means that it is presumed that the father of a married woman’s children is her husband. However, this presumption can be rebutted with the appropriate evidence.
Provisions for the registration of births are set out in section 49 of the Status of Children Act, 1987.
The Domestic Violence Act, 1996 extended the protection of barring and protection orders to cohabitees.
An unmarried person does not enjoy the protection of the Family Home Protection Act, 1976. Property disputes between an unmarried couple cannot be pursued within the family law Courts.
Cohabitation agreements and non-marital contracts are not recognised in Irish law as they are seen as contrary to public policy. However agreements regulating financial and property matters are enforceable as long as they are not conditional on the parties performing ‘marital duties’.
By Terry Gorry
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