A Critical Appraisal of Legitimacy and Legitimation Under Nigerian Family Law
CHAPTER ONE
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 legitimation, how to enforce legitimation 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.
CHAPTER TWO
LEGITIMACY
INTRODUCTION
Legitimacy is the status of a child who is born to parents who are legally married to one another or who is born shortly after the parents marriage ends through divorce the opposite of legitimacy is the status of being illegitimate, that is the status of a child born to a woman and a man who are not married to one another. In both cannon and civil law the offspring of putative marriages are considered legitimate.
Legitimacy is of great importance, in that only legitimate children can inherit their father’s estates, and also enjoy the status incident to legitimate children, which includes the right to maintenance, custody amongst other rights. Legitimacy is an important topic and aspect of law owing to the growing number of illegitimate birth that has been on the increase in recent times, where more than one-third of births in Nigeria are mostly of unmarried mothers.
Law in many societies has denied persons of illegitimate birth the right of inheritance and other rights which legitimate children enjoy leaving them to bear the brunt and carry the social stigma incidence to their status
CONCEPT OF LEGITIMACY
Osborne concise law Dictionary[1] defines legitimacy as ‘a condition of being born in lawful wedlock’.
In Lawal v. Younam[2] it was held that in Nigeria lawful wedlock includes not only marriage under the marriage act, but also customary law marriage and Islamic law marriage.
Generally, the relationship between a child and his parent depends on the status of the child that is whether or not he is legitimate, as the rights and duties imposed on his parents depend on it. Black’s Law Dictionary defines Legitimacy as lawful birth that is the condition of being born in wedlock, the opposite is illegitimacy or bastardy, it also refers to the status acquired by a person who is born in lawful wedlock; such a child is recognized as legitimate from birth.[3]
Therefore to be legitimate at birth, the parent of the child must be lawfully married either at the time of his conception or at the time of birth in Lawal v. Younan[4] Ademola CJN ‘as he then was’ stated that in Nigeria a child is legitimate if born in lawful wedlock according to the marriage Ordinance, or under native law and custom.
In Nigeria, lawful marriage include not only marriage under the marriage act but also includes customary law marriage and Islamic law marriage, these are the type of marriages the law of this country recognize and accepts as legal therefore, the issues of such marriages are therefore legitimate. We will now examine the types of marriages accepted in Nigeria as valid one after the other which makes the issues of such marriages legitimate.
Statutory marriage is the type of marriage celebrated under the act, and it is said to be good and valid for all intent and purpose provided they have complied with the provision and requirement of the act in respect of a valid statutory marriage, this type of marriage is monogamous in nature, and it is the union for life of one man and woman to the exclusion of others,[5] therefore the issues of such marriages are legitimate.
CHAPTER THREE
LEGITIMATION
INTRODUCTION
Legitimation is the process by which a child who has not been born legitimate acquires a legitimate status, the process of legitimation may be achieved by the subsequent marriage of the parents of the child, or acknowledgement by its natural father, that is the recognition of paternity by its natural father. The term ‘legitimation’ presupposed that the child was not legitimate at birth; it is therefore the process whereby such a child can acquire the status of a legitimate person. In Nigeria the process is either by the subsequent marriage of the child parents or the acknowledgement of paternity by the father of such a child, it is a means of protecting an illegitimate child so as to safeguard his right and benefit in relation to the society
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’. It is a way of eliminating the social stigma and discrimination attached to a child as a result of the circumstances surrounding his birth and giving a child a legitimate status, to acquire a legitimate status by legitimation, the parents of the child must have been married under the marriage act, and in some customary law by recognition of paternity by the father of the child, and by the subsequent customary law marriage of such a child parents. The condition to be fulfilled before a child can be said to have been legitimated are provided for under the legitimacy Act[2] as obtainable and practicable under the marriage act.
The modes of legitimation that will be discussed are legitimation by subsequent marriage, either statutory or customary marriage and acknowledgement of the child’s paternity as a means under customary law.
LEGITIMATION BY SUBSEQUENT STATUTORY LAW MARRIAGE
The legitimation of an illegitimate child through the subsequent marriage of its parents was first made possible in Nigeria by the enactment of the Legitimacy Act 1929 [3]this piece of legislation though based substantially on the earlier English legitimacy Act 1926, contained some variations intended to suit local conditions. The 1929 enactment applied then to the whole country, with the introduction of federalism in Nigeria in 1954, legitimacy became a regional subject on which the various regional governments could legislate, fortunately the regional government inherited and preserved the original enactment without alteration, and this accounts for the fact that there is now uniformity in state laws on legitimacy.
CHAPTER FOUR
EFFECT OF LEGITIMATION
INTRODUCTION
This chapter focuses on the benefit of legitimation, that is, the benefits accruing to a legitimate child as a result of his legitimation, which can either be by the subsequent marriage of his parents whether customary or statutory or by acknowledgement of paternity by the father, it discusses the effect of legitimation which is basically to put the otherwise illegitimate child in the position of a legitimate one.
The rights of a legitimate child to his parents and duties of a legitimated child to his parents were equally discussed, also discussed is the rights and duties of a parent to a legitimized child, the constitutional approach to legitimation is equally treated which is basically the constitution’s view and approach to the concept, also the various Act which have been enacted to protect the rights of children, being a vulnerable member of the society, which includes the Child’s Right Act, among other rights were also examined.
EFFECT OF LEGITIMATION
By virtue of Section 2, Legitimacy Law 1944.[1]A legitimated person means ‘a person legitimated by this law’ and Section 8 Legitimacy Law of 1994[2] is to the effect that a legitimated person shall have the same rights and shall be under the same obligations in respect to maintenance and support as if he had been born legitimate, such person is also entitled to all rights to claims for damages, compensation, allowance or benefit which are vested in a legitimate person, thus on the death of his father as a result of negligence of another, the legitimated person will be entitled to claim the fatal accident status as a Legitimate child, also, a legitimated person will have the right to interest in property.
One important consequence of legitimation is to enable the legitimated person and his children to take as from the date of legitimation from the deceased interest on intestate disposition occurring after that date, as if he had been born legitimate, where a legitimated person participate along other children in distribution of property according to seniority.
A legitimate child is the one born in wedlock, however there is a presumption of legitimacy by virtue of section 148 of the evidence Act, of a child born during the continuance of a valid
RIGHTS OF A LEGITIMIZED CHILD
In our society today, the right of an illegitimate child is being jeopardized for what they know nothing about, for instance the fact that they are born out of wedlock disentitle them from rights like, the right to maintenance, to protection from physical, mental and emotional injury and so on, however with legitimation, an illegitimate child now legitimated shall enjoy the same rights as that of a legitimate child, as if he had been born legitimate, for instance by virtue of Section 5(1) Legitimacy Law 1994, a legitimated person, his wife and children shall from date of legitimation have the right to take interest in property on intestate or disposition occurring after the date of legitimation as if had been born legitimate.
CHAPTER FIVE
GENERAL CONCLUSION
CONCLUSION
The concept of legitimacy, illegitimacy, and legitimation which are the primary concern of this work, has been fully discussed, the importance of a legitimate status can be clearly seen in the area of succession, and it is also evident from the social stigma melted on the illegitimate child by both the society and religious bodies and institutions. Having discussed the concept of legitimacy itself which refers to the status of a child born in lawful wedlock, that is ,during the subsistence of a valid marriage, the opposite being illegitimate, with the attendant social discrimination melted out on them, for which succour has been made, by providing for ways and means of legitimating an illegitimate child which includes the subsequent marriage of his parents which can either be statutory or customary, and under some system of customary law, by the acknowledgement of paternity by the natural father, which ultimately accords the child a legitimate status, by virtue of which the child becomes entitled to the benefits he was otherwise deprived of, and also liable to perform his duties as a child.
The effect of legitimation has also been fully discussed, which sole aim is to the effect that the legitimated child, be made to enjoy the rights which legitimate children are entitled to as of right, such rights are contained in the various Acts which has been enacted to safeguard and protect the interest of children world over, example includes the child right Act, amongst other right, and to make them subject to the duties of a legitimated child so as not to make them pay for the sins the sins they know nothing about as there are no illegitimate children but illegitimate parents.
RECOMENDATIONS
This is pertinent, as it will help in the area of reform on the law relating to legitimacy, in other to relief the burden placed on illegitimate children who are in no way responsible for their situation, the laws which needs to be reviewed are the legitimacy Act, the 1999 constitution, and some customary law and practise.
The recommendation includes:
- The legitimacy act, which is the sole means of legitimation now is unobtainable as a result of the conditions that must be met before this is done, the conditions include the fact that the parents must be subsequently married, the father must be domiciled in Nigeria, the child must be alive as at the date of legitimation. In a case where one of the parents is married to another person under statutory law, will they now have to be divorced in other to legitimate their illegitimate child, against the background of the fact that it is unhealthy for the society and the marriage institution itself. The provisions of the act needs to be broaden to encompass other means of legitimation which includes, making provisions for such a child in a will, formal acknowledgement, filling the birth certificate in the father’s name, agreement to maintain the child.
- The provision that the date of legitimation should start counting from the date of legitimation is unfair, the act should be amended to make it start counting from the date of birth, so that in the distribution of estate, the actual ages of the children, including the legitimated child should be the criteria to be used in the distribution of the estate of the parents
- The constitution should be amended to include a new section which will expressly provide that no child should be discriminated upon by the virtue of the fact that he was born illegitimate. The new section should make provision for a specific penalty, when its provisions are violated.
- Under some system of customary law, where acknowledge of paternity by the natural father is provided for, which says that only the natural father of the child has the right to claim paternity of the child, and that no one else can do it on his behalf while he is still alive, provisions should be made, which will allow some relatives acknowledge the paternity such a child in the case where the man dies before acknowledging the paternity of his child, this of course is aimed at protecting the rights and interest of the child, so that he is not made to pay for the sins of his parents.
- Awareness programmes mainly for teenagers and the youth should be organised to inform them about the dangers and consequences of pre-marital sex,and extra-marital sex, which of course are the major contributing factor to the problem at hand, in other to rid our society of illegitimate children.
- Parents and guardians should not only show their children enough love and Care, they should also bring up their children in the way of the lord, by inculcating in them good morals and teachings to help them withstand the pressure of pre-marital Sex
- Religious organizations are not also left behind, as their job is to teach their followers the need to have the fear of God, and to keep his commandment, and to abstain from pre-marital sex which is a sin against themselves.
REFERENCES
- Alhaji Aliu Alarape Salmon (SAN) Legitimacy and Illegitimacy; Nigerian experience,third edition; The jurist journal of the law student society Unilorin 1996/1997
- Professor Sagay legitimacy and the right of inheritance in Nigerian Comtempoary Law, Published in the journal of the private and property law department, Unilag April 1992/1993
- Davis K illegitimacy and social structure American Journal of sociology 1939,45
- Reports of the constitution drafting commission volume 1 pxv 111,vol 11p-175,federal ministry of information, printing division Lagos 1976
- Federal republic of Nigeria, official gazette act no 26, 2003, volume 90 of the new enacted child’s right act.
- Nwogugu E I ‘Family Law in Nigeria’ Heinemann education books, Nigeria limited plc,(revised edition) 1974
- Cretney S.M ‘Principle of family law’ fourth edition, Sweet and Maxwell
- Coker G B A ‘Family property among the Yorubas’ Secound edition, sweet and Maxwell London 1966
- Obi SNC ‘Modern family law in southern Nigeria’ Univercity press, Lagos 1966
- Abd’al ati ‘Family structure in Islam’ Islamic publication Bereau Lagos 1982
- Curzon L B ‘Brief case on family law’ London 1997 Cavendish Publication Limited