Legitimation

History of Legitimation and Ligitimacy

Legitimation and Ligitimacy, the status derived by individuals in consequence of being born in legal wedlock, and the means by which the same status is given to persons not so born. Under the Roman or civil law a child born before the marriage of the parents was made legitimate by their subsequent marriage. This method of legitimation was accepted by the canon law, by the legal systems of the continent of Europe, of Scotland and of some of the states of the United States.

The early Germanic codes, however, did not recognize such legitimation, nor among the Anglo-Saxons had the natural-born child any rights of inheritance, or possibly any right other than that of protection, even when acknowledged by its father. The principle of the civil and canon law was at one time advocated by the clergy of England, but was summarily rejected by the barons at the parliament of Merton in 1236, when they replied Nolumus leges Angliae mutare.

English law takes account solely of the fact that marriage precedes the birth of the child; at whatever period the birth happens after the marriage, the offspring is prima facie legitimate.

Legitimation effected by the subsequent marriage of the parents of the illegitimate child is technically known as legitimation per subsequens matrimonium. This adoption of the Roman law principle is followed by most of the states of the continent of Europe (with distinctions, of course, as to certain illegitimate children, or as to the forms of acknowledgment by the parent or parents), in the Isle of Man, Guernsey, Jersey, Lower Canada, St Lucia, Trinidad, Demerara, Berbice, Cape Colony, Ceylon, Mauritius; it has been adopted in New Zealand (Legitimation Act 1894), South Australia (Legitimation Act 1898, amended 1902), Queensland (Legitimation Act 1899), New South Wales (Legitimation Act 1902), and Victoria (Registration of Births, Deaths and Marriages Act 1903). It is to be noted, however, that in these states the mere fact of the parents marrying does not legitimate the child; indeed, the parents may marry, yet the child remain illegitimate.

In order to legitimate the child it is necessary for the father to make application for its registration; in South Australia, the application must be made by both parents; so also in Victoria, if the mother is living, if not, application by the father will suffice. In New Zealand, Queensland and New South Wales, registration may be made at any time after the marriage; in Victoria, within six months from the date of the marriage; in South Australia, by the act of 1898, registration was permissible only within thirty days before or after the marriage, but by the amending act of 1902 it is allowed at any time more than thirty days after the marriage, provided the applicants prove before a magistrate that they are the parents of the child. In all cases the legitimation is retrospective, taking effect from the birth of the child. Legitimation by subsequent marriage exists also in the following states of the American Union: Maine, Pennsylvania, Illinois, Michigan, Iowa, Minnesota, California, Oregon, Nevada, Washington, N. and S. Dakota, Idaho, Montana and New Mexico.

In Massachusetts, Vermont, Illinois, Indiana, Wisconsin, Nebraska, Maryland, Virginia, West Virginia, Kentucky, Missouri, Arkansas, Texas, Colorado, Idaho, Wyoming, Georgia, Alabama, Mississippi and Arizona, in addition to the marriage the father must recognize or acknowledge the illegitimate child as his. In New Hampshire, Connecticut and Louisiana both parents must acknowledge the child, either by an authentic act before marriage or by the contract of marriage. In some states (California, Nevada, N. and S. Dakota and Idaho) if the father of an illegitimate child receives it into his house (with the consent of his wife, if married), and treats it as if it were legitimate, it becomes legitimate for all purposes. In other states (N. Carolina, Tennessee, Georgia and New Mexico) the putative father can legitimize the child by process in court.

Those states of the United States which have not been mentioned follow the English common law, which also prevails in Ireland, some of the West Indies and part of Canada. In Scotland, on the other hand, the principle of the civil law is followed. In Scotland, bastards could be legitimized in two ways: either by the subsequent intermarriage of the mother of the child with the father, or by letters of legitimation from the sovereign. With respect to the last, however, it is to be observed that letters of legitimation, be their clauses ever so strong, could not enable the bastard to succeed to his natural father; for the sovereign could not, by any prerogative, cut off the private right of third parties. But by a special clause in the letters of legitimation, the sovereign could renounce his right to the bastard’s succession, failing legitimate descendants, in favour of him who would have been the bastard’s heir had he been born in lawful wedlock, such renunciation encroaching upon no right competent to any third person.

Source: Encyclopedia Britannica (1911)

Resources

See Also

Further Reading

J. A. Foote, Private International Law; A. V. Dicey, Conflict of Laws; L. von Bar, Private International Law; Story, Conflict of Laws; J. Westlake, International Law.