Online Encyclopedia

Search over 40,000 articles from the original, classic Encyclopedia Britannica, 11th Edition.

LEGITIMACY

Online Encyclopedia
Originally appearing in Volume V16, Page 379 of the 1911 Encyclopedia Britannica.
» Make a correction to this article.
» Add information or comments to this article.
Spread the word: del.icio.us del.icio.us it!

LEGITIMACY , and LEGITIMATION, the status derived by individuals in consequence of being See also:

born in legal wedlock, and the means by which the same status is given to persons not so born. Under the See also:Roman or See also:civil See also:law a See also:child born before the See also:marriage of the parents was made legitimate by their subsequent marriage. This method of legitimation was accepted by the See also:canon law, by the legal systems of the See also:continent of See also:Europe, of See also:Scotland and of some of the states of the See also:United States. The See also:early Germanic codes, however, did not recognize such legitimation, nor among the Anglo-See also:Saxons had the natural-born child any rights of See also:inheritance, or possibly any right other than that of See also:protection, even when acknowledged by its See also:father. The principle of the civil and canon law was at one See also:time advocated by the See also:clergy of See also:England, but was summarily rejected by the barons at the See also:parliament of Merton in 1236, when they replied Nolumus leges Angliae mutare. See also:English law takes See also:account solely of the fact that marriage precedes the See also:birth of the child; at whatever See also: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 See also:Sir See also:Edward See also:Coke held that " if the See also:husband be within the four seas, i.e. within the See also:jurisdiction of the See also:king of England, and the wife See also:bath issue, no See also:proof shall be admitted to prove the child a See also:bastard unless the husband hath an apparent impossibility of procreation." It is now settled, however, that the presumption of legitimacy may be rebutted by See also:evidence showing non-See also:access on the See also: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. See also:Children born after a See also:divorce a See also:mensa et thoro will, however, be presumed to be bastards unless access be proved. A child born so See also:long after the See also:death of a husband that he could not in the See also:ordinary course of nature have been the father is illegitimate.

The period of gestation is presumed to be about nine See also:

calendar months; and if there were any circumstances from which an unusually long or See also:short period of gestation could be inferred, See also:special medical testimony would be required. A marriage between persons within the prohibited degrees of See also: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. See also:Lord See also:Lyndhurst's See also:act (1835) declared all such existing marriages valid, but all subsequent marriages between persons within the prohibited degrees of See also:consanguinity or affinity were made null and void and the issue illegitimate (see MARRIAGE). By the Legitimacy See also:Declaration Act 1858, application may be made to the See also:Probate, Divorce and See also:Admiralty See also:Court (in Scotland, to the Court of Session by See also:action of See also:declarator) for a declaration of legitimacy and of the validity of a marriage. The status of legitimacy in any See also: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. Legitimation effected by the subsequent marriage of the parents of the illegitimate child is technically known as legitimation per subsequens matrimonium. This See also: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 See also:acknowledgment by the See also:parent or parents), in the Isle of See also:Man, See also:Guernsey, See also:Jersey, See also:Lower See also:Canada, St See also:Lucia, See also:Trinidad, See also:Demerara, Berbice, Cape See also:Colony, See also:Ceylon, See also:Mauritius; it has been adopted in New See also:Zealand (Legitimation Act 1894), See also:South See also:Australia (Legitimation Act 1898, amended 1902), See also:Queensland (Legitimation Act 1899), New South See also:Wales (Legitimation Act '1902), and See also:Victoria (See also:Registration of Births, Deaths and Marriages Act 1903). It is to be noted, however, that in these states the See also:mere fact of the parents marrying does not legitimate the child; indeed, the parents may marry, yet the child remain illegitimate. In See also: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 See also:mother is living, if not, application by the father will suffice. In New Zealand, Queens-See also:land and New South Wales, registration maybe 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 See also: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 See also: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 See also:American See also:Union: See also:Maine, See also:Pennsylvania, See also:Illinois, See also:Michigan, See also:Iowa, See also:Minnesota, See also:California, See also:Oregon.

See also:

Nevada, See also:Washington, N. and S. Dakota, See also:Idaho, See also:Montana and New See also:Mexico. In See also:Massachusetts, See also:Vermont, Illinois, See also:Indiana, See also:Wisconsin, See also:Nebraska, See also:Maryland, See also:Virginia, See also:West Virginia, See also:Kentucky, See also:Missouri, See also:Arkansas, See also:Texas, See also:Colorado, Idaho, See also:Wyoming, See also:Georgia, See also:Alabama, See also:Mississippi and See also:Arizona, in addition to the marriage the father must recognize or acknowledge the illegitimate child as his. In New See also:Hampshire, See also:Connecticut and See also:Louisiana both parents must acknowledge the child, either by an See also:authentic act before marriage or by the See also: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 See also: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, See also:Tennessee, Georgia and New Mexico) the putative father can legitimize the child by See also:process in court. Those states of the United States which have not been mentioned follow the English See also:common law, which also prevails in See also:Ireland, some of the West Indies and part of Canada. In Scotland, on the other See also: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 See also: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 See also: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 thebastard's See also:

succession, failing legitimate descendants, in favour of him who would have been the bastard's See also:heir had he been born in lawful wedlock, such renunciation encroaching upon no right competent to any third See also:person. 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 See also: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 See also:property, a legitimated person as legitimate. The See also:general See also: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 See also: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 See also: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 See also:brother's daughter, born before marriage, but whilst the father was domiciled in See also:Holland, and legitimized by the parents' marriage while they were still domiciled in Holland, was entitled to succeed to the See also:personal property of her aunt (In re See also:Goodman's See also:Trusts, 188o). In re See also:Grey's Trusts (1892) decided that, where real See also:estate was bequeathed to the children of a person domiciled in a See also: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 See also: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. See J. A. See also:

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

End of Article: LEGITIMACY

Additional information and Comments

There are no comments yet for this article.
» Add information or comments to this article.
Please link directly to this article:
Highlight the code below, right click, and select "copy." Then paste it into your website, email, or other HTML.
Site content, images, and layout Copyright © 2006 - Net Industries, worldwide.
Do not copy, download, transfer, or otherwise replicate the site content in whole or in part.

Links to articles and home page are always encouraged.

[back]
LEGITIM 		[next]
LEGITIMISTS (Fr. legitimistes, from legitime, lawfu...

Site © 2006 - Net Industries