Legitimation in United Kingdom

History of Legitimation and Ligitimacy

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. The presumption of law is always in favour of the legitimacy of the child of a married woman, and at one time it was so strong that Sir Edward Coke held that “if the husband be within the four seas, i.e. within the jurisdiction of the king of England, and the wife hath issue, no proof shall be admitted to prove the child a bastard unless the husband hath an apparent impossibility of procreation.” It is now settled, however, that the presumption of legitimacy may be rebutted by evidence showing non-access on the part of the husband, or any other circumstance showing that the husband could not in the course of nature have been the father of his wife’s child.

If the husband had access, or the access be not clearly negatived, even though others at the same time were carrying on an illicit intercourse with the wife, a child born under such circumstances is legitimate. If the husband had access intercourse must be presumed, unless there is irresistible evidence to the contrary. Neither husband or wife will be permitted to prove the non-access directly or indirectly. Children born after a divorce a mensa et thoro will, however, be presumed to be bastards unless access be proved. A child born so long after the death of a husband that he could not in the ordinary course of nature have been the father is illegitimate. The period of gestation is presumed to be about nine calendar months; and if there were any circumstances from which an unusually long or short period of gestation could be inferred, special medical testimony would be required.

A marriage between persons within the prohibited degrees of affinity was before 1835 not void, but only voidable, and the ecclesiastical courts were restrained from bastardizing the issue after the death of either of the parents. Lord 379 Lyndhurst’s act (1835) declared all such existing marriages valid, but all subsequent marriages between persons within the prohibited degrees of consanguinity or affinity were made null and void and the issue illegitimate (see Marriage). By the Legitimacy Declaration Act 1858, application may be made to the Probate, Divorce and Admiralty Court (in Scotland, to the Court of Session by action of declarator) for a declaration of legitimacy and of the validity of a marriage. The status of legitimacy in any country depending upon the fact of the child having been born in wedlock, it may be concluded that any question as to the legitimacy of a child turns either on the validity of the marriage or on whether the child has been born in wedlock.

The question remains, how far, if at all, English law recognizes the legitimacy of a person born out of wedlock. Strictly speaking, English law does not recognize any such person as legitimate (though the supreme power of an act of parliament can, of course, confer the rights of legitimacy), but under certain circumstances it will recognize, for purposes of succession to property, a legitimated person as legitimate. The general maxim of law is that the status of legitimacy must be tried by the law of the country where it originates, and where the law of the father’s domicile at the time of the child’s birth, and of the father’s domicile at the time of the subsequent marriage, taken together, legitimize the child, English law will recognize the legitimacy.

For purposes of succession to real property, however, legitimacy must be determined by the lex loci rei sitae; so that, for example, a legitimized Scotsman would be recognized as legitimate in England, but not legitimate so far as to take lands as heir (Birtwhistle v. Vardill, 1840). The conflict of laws on the subject yields some curious results. Thus, a domiciled Scotsman had a son born in Scotland and then married the mother in Scotland. The son died possessed of land in England, and it was held that the father could not inherit from the son. On the other hand, where an unmarried woman, domiciled in England died intestate there, it was held that her brother’s daughter, born before marriage, but whilst the father was domiciled in Holland, and legitimized by the parents’ marriage while they were still domiciled in Holland, was entitled to succeed to the personal property of her aunt (In re Goodman’s Trusts, 1880).

In re Grey’s Trusts (1892) decided that, where real estate was bequeathed to the children of a person domiciled in a foreign country and these children were legitimized by the subsequent marriage in that country of their father with their mother, that they were entitled to share as legitimate children in a devise of English realty. It is to be noted that this decision does not clash with that of Birtwhistle v. Vardill.

Source: Encyclopedia Britannica (1911)

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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.