FAMILY LAW 2.7 LEGITIMACY AND LEGITIMATION
The status of a child in relation to his parents has far reaching legal effects.
A child is legitimate if he/she was born in lawful wedlock–Lawal V Younan. “Lawful wedlock” means lawful/valid marriage (whether Statutory, Customary or Islamic).
It follows that a child conceived and born outside lawful wedlock is illegitimate .(outside wedlock meaning that the parents are not validly married to one another whether custom, Islamic Law or Statute).
At common-law, an illegitimate child was considered a filius nullis (incapable of inheriting property from his parents). However, under Section 10 of Nigeria’s Legitimacy Act, an illegitimate child can inherit from his mother.
AT CUSTOMARY LAW, the issue of legitimacy may or may not be directly linked to the father. For example; In Igbo custom, a daughter may stay behind and bear children to keep the father’s name. The child borne can be seen as the legitimate child of the father. Furthermore, a barren woman can remarry another woman to bear children on her behalf-Meribe V Egwu. The child borne can be seen as the legitimate child of the man. In Anambra custom, a child remains with his/her mother’s family until dowry has been paid by his father. In some customs, if a man reasonably suspects and can establish that his wife has committed adultery, he may pronounce the child thereof illegitimate. In Igbira custom, if a widow decides to remain in her late husband’s house, any child borne while in the house is seen as the child of the late husband. This custom was affirmed in Nwaribe V President Orlu District Court (despite the fact that the biological father admitted paternity) holding that the wife became subject to the custom when she voluntarily decided to remain in her late husband’s house.
This just goes to show that in custom, legitimacy may vary based on ideology. One thing to note however is that such customs may not be applied where they are repugnant to natural justice, equity and good conscience… contrary to public policy or inconsistent with an existing law- See Section 14(3) Evidence Act, the various High Court Laws of Nigeria. In Edet V Essien The applicant (the former husband of a woman) sought to get a child she bore for another man on the basis that she had not refunded his dowry as demanded by custom. The custom was held to be contrary to natural justice and repugnant to equity and good conscience.
Although, in practice, the decisions of the courts have little or no effect on the perception or practices of the indigenes who practice the customs.
Legitimacy of Children of Void Marriages: A void marriage is one that has been invalid from the inception due to non-compliance with the essential or formal validities and requirements.
In Nigeria, children of void marriages are illegitimate. Injustice may arise where both parties reasonably believed that they were married. Although Nigerian courts are not quick to hold a marriage void- Ugboma V. Morah. Akwudike v. Akwudike. Obiekwe v. obiekwe. Section 2 of the England Legitimacy Act provides that if at the time of intercourse, the parties reasonably believed that they were validly married, the child is legitimate. It is doubtful if this would apply in Nigeria.
Legitimacy of children of Voidable Marriages: A voidable marriage is an irregular marriage which is still validly subsisting till declared void by the court. Once a competent court declares that the marriage is void, it becomes a nullity. At common-law, such declaration had a retroactive effect and made all children under it illegitimate. However, by Section 38 of the Matrimonial Causes Act, the decree takes effect from the date of its pronouncement. Thus, it can only affect children born after the pronouncement (that the marriage is void), rather than those born before its pronouncement.
PRESUMPTION OF LEGITIMACY
At common-law, a child born in lawful wedlock is presumed to be legitimate until the contrary is proved.
At customary law, a child born during the subsistence of a customary marriage is presumed to be legitimate. In Igbira customary law, any child born within 10 calendar months from divorce is presumed to be the legitimate child of the former husband. Even when it is obvious that the child belongs to another man. The courts have treated this presumption as rebuttable in the interest of natural justice. In Mariyama V Sadiku Ejo, the woman divorced her husband and married another man. She gave birth less than 10 months after the divorce. It was established that she last had intercourse with her divorced husband 15 months ago. The customary court granted custody to the former husband. However, on appeal the custom was regarded as contrary to natural justice and equity the decision thus quashed.
The position in Lawal V Younan that amongst the Yoruba, the concept of illegitimacy does not exist was challenged in Cole V Akinyele, where it was held that a child that has not been legitimated by the father cannot claim property.
Section 148 of the (new) Evidence Act 2011 and Section 115 of the Matrimonial Causes Act, provides that a child born during the continuance of a statutory marriage or 280 days from its dissolution is presumed legitimate. Section 84 Matrimonial Causes Act provides that a spouse can adduce evidence (that there has been no sexual intercourse) to rebut the presumption.
In Egwunwoke V Egwunwoke, and Ezikel V Alibi, the courts noted that where there is evidence that a valid marriage exists, it would generally presume that the child of the marriage is legitimate.
Legitimation is the process whereby an illegitimate child is made legitimate. Legitimation presumes that the child/children is/are illegitimate. It follows (apparently) that a legitimate child cannot be legitimated-Re Sarah Adadevoh.
Legitimation may be by Acknowledgment or Subsequent Marriage of both parents:
LEGITIMATION BY ACKNOWLEDGMENT.
Occurs where the biological father recognises and accepts (expressly or by conduct) paternity of the child. Whether the parents are married or not. Acknowledgement ipso facto legitimises the child/children-Taylor V Taylor. In Edo state, acknowledgment must be express and in the presence of relatives.
Admission of paternity- Young V Young, performing the child’s naming ceremony- Philip V Philip, maintenance and education training of a child- Abisogun V Abisogun, procuring child’s birth certificate (Savage V Macfoy) and so on have been held to be acts of acknowledgment by the man.
:: The applicant must prove that the alleged custom recognises acknowledgment-Onwudinjoh V Onwudinjoh.
:: Acknowledgment must be by the natural father (in person). Acknowledgement cannot arise when third parties treat a person as legitimate-Philips V Osho.
In Ogunmodede V Thomas, the deceased (Patience) married under the Marriage Act and they bore a daughter. The husband acknowledged 16 other issues he had outside the marriage. The children were treated equally while the wife was alive. When she died, the husband sought to inherit her property to the exclusion of all the other children alleging that they were illegitimate in relation to the deceased and her property. The Supreme Court held that if the woman were alive, she would have been estopped from denying acknowledgment by conduct. They were entitled to share the property. However in the subsequent case of Phillips V Osho, the legitimate children treated the plaintiffs (who were born out of wedlock) as legitimate children and even shared some property to them and invited them to some family meetings. The plaintiffs (relying on Ogunmodede V Thomas, argued that the defendants were estopped from denying their legitimacy) asked the court to order an account of all proceeds received as rent by the legitimate children. The court refused their claim and held that they were illegitimate children.
:: Inchoate acknowledgment would not suffice-Oladele V Akinshola. For example acknowledging pregnancy but failing to acknowledge on birth. The man may find reasons to reject the child after birth (maybe the complexion of the infant does not match that of the father, the look, eyes, and so on).
:: Where a child dies before acknowledgement, there is no need to legitimise. There is no point in legitimating the dead.
:: Acknowledgment is not universal. Meaning the mode and rules vary.
The Effect of Acknowledgment: It legitimates the child and entitles him to rights of a legitimate child as though he was born legitimate- Young V Young.
LEGITIMATION BY SUBSEQUENT MARRIAGE:
Section 3 of the Legitimacy Act of 1929 is instructive on this: It provision mandates that:
:: To be legitimated by subsequent marriage, the marriage should have been a statutory one. The parents of the illegitimate child must MARRY UNDER STATUTE. In Cole V Akinyele, the man while in a statutory marriage, went to marry another person under customary law which produced three children. The court held that the children were illegitimate as there ought to have been a subsequent statutory marriage to legitimate the children.
:: The father must be domiciled in Nigeria at the time of marriage. Section 9 of the Legitimacy Act however provides that if he was domiciled in another country (whether temporarily) that allows legitimation by subsequent statutory marriage, this condition can be fulfilled.
:: The child to be legitimated must be living at the time of the marriage. Only living things can be legitimated.
:: The legitimation shall take effect from the commencement of the Act (1929) or the marriage whichever comes last.
This Section does NOT prohibit legitimation of a child from an adulterous union. E.g. where Mr A is married to Mrs B and he impregnates Ms C, he can divorce Mrs B and marry Mrs C thereby legitimating the child she bears for him.
Section 8 provides that the effect of the legitimation is to confer on the person all rights and responsibilities of a legitimate child.
In Igbo land, there can be legitimation by payment of dowry as such there can be legitimation by subsequent customary marriage.
In Alake V Pratt the court found it contrary to public policy to place children born outside lawful wedlock on the same pedestal as legitimate children. This position has been countered by Section 42 of the 1999 Constitution which provides that no citizen of Nigeria shall be subject to any form of disability or deprivation by reason of circumstances of his birth. See also Article 17(5) of the American Convention on Human Rights; and other international treaties and conventions which frown against discrimination.
In Olulode V Oviosu the court held that the purport of this provision was to abolish the status of legitimacy or illegitimacy. However in Kehinde Da Costa V Fasheun, the court held that the provision of the constitution did not intend to make the deceased property open for all both legitimate and illegitimate. Doing so would be unfair and contrary to public policy. Moreover, it has been argued in Nzoukwu V Ezeonu, that rights granted by Section 42 of the 1999 Constitution can only be invoked against the state and not private persons.
It is safe to conclude that the constitution intends that once a child has been acknowledged or legitimated, he/she should not be discriminated against and he shall be entitled to rights accruing as though he was born in lawful wedlock.
Well, all that we have been saying as regards legitimacy so far can be regarded as a cool story/yarns which you may sha discuss in your exams. The real gist lies in the scientific innovation called DNA (Deoxyribonucleic acid) Matching/testing. This simply involves tracing paternity by scientific means. This is done by comparing the DNA of the father and child to ascertain if there is a 100% match. The DNA test result overrules the acknowledgment or denial by the father especially in property disputes.
The court can order DNA testing by virtue of the wide powers granted to the courts under Section 6(6)(b).
In conclusion, there should be wider education on the negative impact of illegitimacy and how it can be circumvented. Although there have been cases where illegitimate children trace paternity but are unperturbed about the distribution of wealth.