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ABSTRACT
This long essay is concerned with the concept of legitimacy, which is
an important concept, as it determines the status of a child in
relation to the society, while a legitimate child is conferred with the
rights and duties of a legitimate child, which includes right to
maintenance, succession among other rights, an illegitimate child is
denied of these right by virtue of the fact of his illegitimate birth
and he remain so, until and unless he is legitimated either by the
subsequent marriage of the parents, or by acknowledgement of paternity
by the father, the absence of which the child will be regarded as an
illegitimate child, with the resultant social discrimination that will
be melted out on him by members
of the larger society. This essay is therefore poised to giving a voice
to illegitimate children in the society, by examining the concept
itself, and the discrimation which an illegitimate child is being faced
with; it examines the ways of legitimating an illegitimate child, in
order to remove the discrimination, so that he will be accorded with the
same status as a legitimate child. Chapter one gives a general
introduction of the work, it traces the origin of illegitimacy which
appearances can be seen in the Holy Bible and the Holy Qu’ran,and which
also dates back to our traditional societies, where an illegitimate
child is seen more or less like a social outcast, and is treated like
the child of nobody, it also discusses all the variables necessary to
fully appreciate the concept, while chapter two talked about the concept
of legitimacy under both customary and English law, it discusses the
importance of a legitimate status, it also discusses illegitimacy, and
the need to legitimize an illegitimate child, in other to remove the
social stigma attached to that status. legitimization was specifically
discussed in chapter three, which can either be by the
subsequent marriage of the parents of the child which can either be by
statutory law, or by customary law, and the necessary conditions which
must be met, Acknowledgement of paternity as a means of legitimation was
also discussed with the condition precedent before a child will be said
to have been acknowledged by the father Chapter four discusses the
effect of legitimation on an otherwise illegitimate child, which
includes the rights and the duties of a legitimized child to the parents
and the rights and duties of the parents to a legitimated child as when
there is a right there must be a corresponding duty. Chapter five which
is the concluding part of the work contains the findings of the work
and includes the necessary recommendations.
CHAPTER 1
GENERAL INTRODUCTION
1.0.0 INTRODUCTION
The question of legitimacy and legitimation are principally connected
with status. It is therefore, important to determine the status of a
child at any given moment as it has far reaching legal consequences. A
child may be born legitimate or acquire that status by subsequent
legitimation1. A legitimate child is one regarded by law as a child born
with full rights and it confers on the child certain rights against the
man whom the law regards as his father and generally against the
society, but the bastards like the prostitute, thief and the beggars
belong to the motley crowd of disreputable social types which the
society had generally resented but endured. Legitimacy for lawyers is a
concept whereby a couple’s child is entitled to full recognition as a
family member and enjoys the legal right which the status involves. It
implies that children born out of wedlock are referred to as
illegitimate, as is generally believed that people are not supposed to
have illegitimate children but when they do emergency machinery is put
to operation to give the child a status which is an interior one.
The position of the common law is that the incapacity of a bastard
consists primarily in this, that he cannot be heir to any one, neither
can he have heirs but of his own body for being nullius fullius, he is
therefore likened to nobody and he has no ancestors from whom any
inheritable blood can be derived.
The belief is that by regulating illegitimate children to the background
and by denying them the filial rights enjoyed by legitimate children
the society will be able to purge themselves of their existence which is
usually not so.
The basic ingredients to prove the legitimacy of a child are:
ï‚· There must exist a valid marriage between the parents of the child, customary, Islamic or statutory law marriage.
ï‚· The wife has to be the mother of the child in question.
The father is also presumed to be the husband of the mother of the child born during the subsistence of the marriage.
The above requirement must be fulfilled before a child will be said to
be legitimate, the absence of which the child will be seen as
illegitimate. This is the obtainable position under the common law; the
situation exposes illegitimate children to social and legal deprivations
and also denies them the rights of a legitimate child which includes
the right to succession, protection, maintenance, custody, amongst other
related rights. This actually informed the concept of legitimation,
which aims at restoring rights that the
illegitimate children have been wrongfully deprived of. The 1999
constitution did not expressly provide for legitimation, but it can be
inferred from the right to freedom from discrimination, which provides
that:
‘No citizen of Nigeria shall be subjected to any disabilities or
deprivation merely by reason or the circumstance of his birth’. The
study will therefore examine the concept of legitimation and see if the
provision of the constitution has totally eradicated illegitimacy in
order to entirely safeguard the right
of a legitimated child; that is a former illegitimate child. The study
will further examine the pitfalls, distinctions and discrimination that
the illegitimate child faces and the various ways by which an
illegitimate child can be legitimized. The various enactments, the
legitimacy act, the customary and native perspectives will equally be
examined.
1.1.0 BACKGROUND OF THE STUDY
Children born or conceived when there is a valid and subsisting marriage
between their parents are referred to as legitimate children while
those of unmarried parents are fillius nullius or fillius populi meaning
a bastard, who has no legal relationship, or is recognized with the
father nor with any other relative, he therefore is deprived of the
right which legitimate children possess. Illegitimacy can be traced to
the holy bible.
‘one of illegitimate birth shall not enter the assembly of the lord,
even to the tenth generation; none of his descendants shall enter the
assembly of the lord.’
In Genesis Chapter 49 v 8-12, God promised Judah that the sceptre will not depart from him, Judah thereafter committed adultery with another woman, which result was Perez, and by that singular act, ten generation passed before the promised was fulfilled, as seen in Matthew Chapter1 v1-6 which was when King David became the King of Israel. Islam also frowns at illegitimacy as can be seen from the below provision. Call them (adopted sons) by the names of their fathers that is more just with Allah.
A legitimate marriage is one contracted according to the rules
guiding its validity which includes customary marriages7 in strict
customary law, the concept of paternity marriage and legitimacy have no
necessary connection unlike common law. For instance a child may be
regarded as legitimate even though the natural parents are not married
to each other and the person with respect to whom the child is
legitimate is not the natural father.
In Ibo custom, a man who has no male child may persuade one of his
daughters to stay behind and not marry, the purpose of such arrangement
is for her to produce a male successor for her father and thereby save
his lineage form threatened extinction thus, any child she bears while
remaining with her parents is considered the child or her father at
birth. Any male child so produced has full right of succession to the
grandfather’s title this custom is known as Idegbe in western Ibo custom
we also have such custom in Akoko, the Oka people of Ondo State.
There is the practice of ‘Supo’ in the Yoruba speaking areas where the
youngest brother of the widow’s deceased husband can inherit her so as
to breed children for the late husband, this custom is referred to as
widow inheritance and such children are regarded as legitimate children
though the parents are not formally married, this is not to say that
illegitimacy is not recognized, as they are referred to as ‘Omo- ale’
meaning a child of an adulterous woman or an unmarried woman (a bastard)
that is a child who had not been acknowledged by his father and
generally has no succession right in Yoruba customary law.
Under our customary law a child of an unmarried woman, (the term
unmarried include women whose marriages have been legally dissolved as
submitted by Dr. Obi)9 is regarded as belonging to his maternal
grandfather, meaning that the connection between him and his maternal
grandfather accord him the right to succession with his other
grandfather children,10 although there is the status of illegitimacy
under customary law the willingness of the grandfather or natural father
to accept the child helps to remove the burden placed on that status,
this is because of the general love for children. As we can
see, illegitimacy have both religious and cultural undertone with the
attendant discrimination melted out on illegitimate children, which has
not in any way solved the problem, attempts therefore has been made to
finding a solution to it which is legitimation as we cannot throw away
the baby with the bath water, neither will the cutting of the head,
relieve us from the headache.
1.2.0 OBJECTIVES OF THE STUDY
The study is aimed at exposing the unnecessary social discrimination
faced by illegitimate children in the society. The way and means by
which we can help alleviate and reduce their sufferings which is
legitimization, how to enforce legitimization laws with a view to making
them applicable to our local and peculiar situation in order to make
them effective and workable as it is not equitable for the children to
be made to pay for the sins of their parents.
1.3.0 FOCUS OF THE STUDY
The study focus on the concept of legitimacy, that is what is means to
say a child is legitimate, illegitimacy, meaning what makes a child
illegitimate and legitimation which is the process of making an
otherwise illegitimate child attain the status of a legitimate one, the
study therefore focuses on illegitimate children with the view to making
them attain a legitimate status, through the instrumentality of the
law. It will also focus itself in exposing the uncertainties in the
legislative position in Section 42 (2) of the 1999 constitution as
regards the provision from freedom from discrimination of any citizen of
Nigeria in relation to the circumstances or their birth, and it will
also examine the family law reform relating to legitimacy and
legitimation.
More so, the mode of legitimation will also be examined, this is due to
the lack of uniformity in the modes of legitimation, which are not
universally accepted by the common law, the religion and customary law
.Also, the modes as of today which are inoperative and unenforceable
will also be looked into and solutions will be preferred in order to
make it operative and enforceable. Furthermore, in spite of the
avoidance of the word ‘illegitimate’ in the statute book, the status of a
child born out of lawful wedlock
has not changed, All these issues and many more will be the focus of
this study and it will be examined with a view to fashioning out lasting
solutions to them, since they pose themselves as problems.
1.4.0 SCOPE OF THE STUDY
It will be limited to family law in the aspect of parent and child
relationship in respect to legitimacy and legitimation, the right and
duties of a legitimated child to his parents and the right and duties of
a parent to his legitimized child, the study will also be linked to our
principal religions in Nigeria i.e. Christianity and Islam. It will
also compare our various customary indigenous laws and the English law
position.
1.5.0 METHODOLOGY
This will be based on documentary source of information form textbooks,
Dictionaries, articles, encyclopaedia, law journals, periodicals and
opinion of writers which are the secondary sources of data. The primary
source includes the holy bible, Qur’an, constitution and other relevant
sources of information.
1.6.0 LITERATURE REVIEW
Quite a handful of literature will be reviewed in this work in order to
properly understand and appreciate its significance, principal among
such is the 1999 constitution of the Federal Republic of Nigeria who in
section 42(2) provides that “No citizen of Nigeria shall be subjected to
any disability or deprivation merely by reason or the circumstances of
his birth.’ which was transferred from s. 39 (2) of the 1979
constitution of the Federal Republic of Nigeria. The issue is, in spite
of this provision of the law, illegitimate children are still being
subjected to legal and social discrimination. The holy books, that
is the bible and the Quran, also made reference to illegitimacy as can
be seen from below, where God said that One of illegitimate birth shall
enter into the assembly of the lord, even unto his tenth generation none
of his descendants shall enter the assembly of the lord.
More so, in the holy Quran, the principle of legitimacy was mentioned as seen below.
Call them (adopted sons) by the names of their father that is more just with Allah
Adb Al Ati Quoter Roser Coser, in an abridged form stated that, every
child shall have a father and one father only .As we can clearly see,
Islam frowns illegitimacy.
Alfred B. Kasumu and Jeswald W. Salacuse, are of the view that
legitimacy is the status of a child born in lawful wedlock, while an
illegitimate child can acquire the status by the subsequent marriage of
the parents, or by acknowledgement by his father.
According to Professor Nwogugu E.I, it is important to determine the
status of a child at any given moment as it has for reaching legal
consequences. This view is of great import as it is the status of the
child that determines what right the child has against his father and
the duty of the father to his child. While noting that customary law
unlike common law in strict sense says there is no necessary connection
between the concept of paternity, marriage and legitimacy, as a child
can be regarded as legitimate, even though the natural parents’ era not
married.
Cretney S.M, in principle of family law says the concept of legitimacy
and legitimation borders on status and, it is a concept whereby a
couple’s child is entitled to full recognition as a family.
Davis K,‘illegitimacy and social structure’ says the illegitimate child
is one born with full rights and confers certain rights against the man
whom the law regards as his father but the illegitimate child is
resented by both his family and the society at large.
Curzon, emphasis that legitimacy is the condition of belonging to a
class in a society the members of which are regarded as having been
begotten in lawful matrimony by the man whom the law regard as their
father which negate the position under Islamic Law, where it provides
that only the natural father takes possession of the legal status in
relation to a child.
Kasumu, says legitimacy is the status acquired by a person who is born
in lawful wedlock, the children of such marriage or wedlock will be
legitimate at birth, it is important to establish that lawful wedlock in
Nigeria may either be by Customary, Islamic or statutory law marriage
and the operative effect of these differs from one legal system to
another, for instance in the monogamy legal system it is irrelevant if
at the date of birth, the marriage is dissolved, the parents must be
married at the time of conception while in some customary legal system
(Yoruba) the child might be legitimate without the parents being married
if the father acknowledge paternity of the child.
To Sagay, ‘the concept of legitimacy and legitimation are of course
important because of the social stigma associated with illegitimacy in
the western and Christian oriented class in the society
Ambali, in his book has this to say “legitimacy is an important link
between the relationship between father and son, and it is also a
condition precedent for succession.
Therefore a child of an illicit relationship will not be allowed to
inherit the estate of the partner of his or her mother in the act of
Zina i.e. fornication or adultery. This position of Sharia, is far from
what operates in our contemporary society and cannot pass as a general
operative law under our Nigerian statutes.
Brumley, in his book submits that it is impossible to define
legitimacy in isolation without relating it to a particular legal
system, this explains legitimacy by drawing a distinction between the
legal position of a child born of a legally recognized union The family
law reform Act 1987, has abolished and removed the discrimination
affecting illegitimate children, before the act was passed an
illegitimate child could not succeed as heir to an entailed interest or
title of honour, also the child was denied citizenship rights,
but all this discrimination has been done away with the passing of the Act.
Alarape Salmon, (SAN), in his paper ‘in a country where the benefit are
based on right, it will not be out of place to determine the status of a
person be it a child or an adult because that determination is
fundamental in determining among others, his right to succession and
maintenance’ one realize that the basis for determining the status or a
child differs from culture to culture and legal system to legal system
in the western world e.g. America and Europe where their strict legal
system only recognizes statutory
marriage which is monogamous in nature, any child born out of such
stipulated marriage, will be regarded as an illegitimate child, our
customary society in Nigeria allows polygamy, In essence all the
children born in a polygamous marriage are legitimate. Also a child
becomes legitimate if the putative (supposed) father acknowledges
paternity of the child.
The family law reform Act 1987, has abolished and removed the
discrimination affecting illegitimate children, before the act was
passed an illegitimate child could not succeed as heir to an entailed
interest or title of honour, also the child was denied citizenship
rights, but all this discrimination has been done away with the passing
of the Act.
Furthermore, by virtue of the children’s Act of 1969, the distinction
between legitimate and bastard children was abolished in New Zealand
which has also been extended to Nigeria. Similarly the Family Law Reform
Act 1969 has provided succour to the illegitimate child. The Family Law
Reform Act 1987, has abolished and removed the discrimination affecting
illegitimate children, before the act was passed an illegitimate child
could not succeed as heir to an entailed interest or title of honour,
also the child was
denied citizenship rights, but all this discrimination has been done away with the passing of the Act.
DEFINITION OF TERMS
Some terms will be used in this work and as such a proper definition of
such terms is expedient in order to have a clearer understanding of the
topic under discussion. The terms include;
ï‚· Marriage
This is the legal union of one man and one woman (many women) as
husband and wife. It must be a union of persons of the opposite sex.
According to Lord Penzance, In Hyde v. Hyde24 a monogamous marriage is
’The voluntary union for life of one man and one woman to the exclusion
of all others’.
In Sowa v. Sowa25 polygamous marriage is defined as the voluntary union for life of one man into one or several wives.
Osborn’s concise law dictionary26 defines marriage as essentially the
voluntary union for life of man and one woman to the exclusion of all
others subject to the rules as to consanguinity or affinity and capacity
to perform the duties of matrimony prevailing in the place of domicile
of the parties and subject to the formalities required either by the law
of England or the place where the marriage takes place. The import of
this definition is that what constitute marriage and it validity depends
on the law of the place it is celebrated, in essence if the marriage
complies with the law of the place where it is celebrated, the marriage
will be regarded as valid and binding. The formalities which must be
complied with in order to constitute a valid marriage are contained in
the Matrimonial Causes Act of 1970 and the rules of customary law which
is largely unwritten.
From the above definitions marriage can be defined as the voluntary
union for life of one man and woman as in the case of a monogamous
marriage which is also in the same position with statutory law marriage
or voluntary union for life of one man and two or women. As in the case
of Islamic and customary law Marriages, however, the number of wives
which a man can marry under Islamic law is limited to four.
ï‚· A child
Black law dictionary27 defines a child is a progeny; an offspring of
parentage unborn or recently born human being, a child is also used to
describe a natural person who is an offspring of another either by birth
or adoption and also represent from the moment of his birth until the
attainment of the age of maturity. Osborne concise law dictionary
defines a child as;
‘……..a person under the age of eighteen’.
For the purpose to the Children Act 1989 in criminal matters, a child
relates to an offender under the age of fourteen as seen in Children and
Young Person’s Act 1969.
ï‚· Legitimacy
Cheshire and North in their book29 sees legitimacy as the status
acquired by a person who is born in lawful wedlock. Black Law
dictionary30 defines it as a lawful birth; the condition of being born
in wedlock; the opposite of illegitimacy or bastardy. Osborne concise
law dictionary31 defines it as the condition or being born in lawful
wedlock.
ï‚· Illegitimacy
It is a condition that exists before the law or the social status of a
child born out of wedlock. It can also be said to be the condition of
one whose parents were not married at the time of his or her birth.
Black law dictionary32 says illegitimacy is the condition before the
law, or the social status, of a child born out of wedlock; condition of
one whose parents were not intermarried at the time of his or her birth.
It is the social status of a child born out of wedlock. At common law a
bastard has no parents and cannot take
property as an heir- at- law or next- of- kin through them.
ï‚· Legitimation
This is the process through which a child who has not been born in a
lawful wedlock, acquires the status of a legitimate child, which is as a
result of some acts which includes the subsequent marriage of his
parent or by acknowledgement by his father after the date of his birth.
It is also a way of making legitimate that which was not originally so
through the statutory procedure. It is important to determine the status
of an illegitimate child to assure the succession right of the child as
an illegitimate child has no succession rights as against a legitimate
child.
Black law dictionary defines it as ‘the making legitimate or lawful that
which was not originally so; especially the statutory procedure of
legalizing (legitimating) the status of an illegitimate child, such is
usually necessary to assure inheritance rights to child.
CONCLUSION
This chapter generally introduces the concept of legitimacy, which is
concern of this work and which is the status of being born in a lawful
marriage, the absence of which the child will be regarded as
illegitimate with the resultant effect which will not be pleasant to the
child as he will be deprived of the benefit that should he would have
been entitled to, if he was of a legitimate birth, it discussed the
background of the study which has been from quite some as it has been
traced to the Holy books, the aim of the study which is giving a voice
to the illegitimate children in the society in order to help safeguard
their rights and privileges with a view to removing those
discriminations which they are normally faced with was also discussed,
the chapter also explained all the terms needed to full appreciate the
concept.
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