Legitimacy (law)

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In common law, legitimacy is the status of a child born to parents who are legally married to each other; and of a child who is born shortly after the parents' divorce. Conversely, illegitimacy (or bastardy) is the status of a child conceived outside of marriage, though the consequences of that definition were ameliorated by legislation. The consequences of illegitimacy was predominantly in relation to rights of inheritance to the putative father's estate as well as being entitled to bear the father's name or title. It also had consequences on the right of the mother and child to support from the putative father. (See, Affiliation (family law))

Contents

Law

The Statute of Merton (1235) in relation to illegitimacy stated that He is a bastard that is born before the marriage of his parents.[1] This also covered the situation where the parents of a child could not marry, such as because either one was already married as well as it would be a forbidden (e.g., incestuous) marriage. In Medieval Wales, a "bastard" was defined solely as a child not acknowledged by his father. All children acknowledged by a father, whether born in or out of wedlock, had equal legal rights including the right to share in the father's inheritance. On the conquest of Wales by England, English law applied in Wales. The Poor Law of 1576 formed the basis of English bastardy law. Its purpose was to punish the mother and reputed father of a bastard child, and also to relieve the parish from the cost of supporting mother and child. "By an act of 1576 (18 Elizabeth C. 3), it was ordered that bastards should be supported by their putative fathers, though bastardy orders in the quarter sessions date from before this date. If the genitor could be found, then he was put under very great pressure to accept responsibility and to maintain the child". [2]

The Legitimacy Act 1926[3] of England and Wales legitimized the birth of a child if the parents subsequently married each other, provided that they had not been married to someone else in the mean time. The Legitimacy Act 1959 extended the legitimization even if the parents had married others in the mean time and to putative marriages which the parents incorrectly believed were valid. Neither the 1926 or 1956 Acts change the Law of Succession. The Family Law Reform Act 1969 (c. 46) allowed a bastard to inherit on the intestacy of his parents. In canon and in civil law, the offspring of putative marriages have also been considered legitimate children.[4]

In the United States, in the early 1970s, a series of Supreme Court decisions held that most common-law disabilities imposed upon illegitimacy were invalid as violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.[5] Many other countries have abolished any legal disabilities of a child born out of wedlock by legislation.

Nomenclature

Contemporary usage of the term "illegitimate child" is infrequent, even in legal usage, and terms such as "extramarital child", "love child" or "child born out of wedlock" are more commonly used. Another term used is bastard, especially in British English. In polite society, terms such as "natural child" were preferred.

Contemporary position

Despite the decreasing legal relevance of illegitimacy, an important exception may be found in the nationality laws of many countries, which discriminate against illegitimate children in the application of jus sanguinis, particularly in cases where the child's connection to the country lies only through the father. This is true of the United States,[6] and its constitutionality was upheld by the Supreme Court in Nguyen v. INS.[7]

Legitimacy also continues to be relevant to hereditary titles, with only legitimate children being admitted to the line of succession. However, some monarchs such as Elizabeth I of England succeeded to the throne despite the controversial status of their legitimacy, due to special legislation.

Annulment of marriage does not change the status of illegitimacy of children born to the couple during their putative marriage, i.e., between their marriage ceremony and the legal annulment of their marriage. For example, canon 1137 of the Roman Catholic Church's Code of Canon Law specifically affirms the legitimacy of a child born to a marriage that is declared null following the child's birth.

Extramarital births

Percentage of births to unmarried women, selected countries, 1980 and 2007.[8]

The proportion of children born outside marriage is rising in all EU countries, the USA, and Australia.[9] In Europe, besides the low levels of fertility rates and the delay of motherhood, another factor that now characterizes fertility is the growing percentage of live births outside marriage. In the EU, this phenomenon has been on the rise in recent years in almost every country and in seven countries, mostly in northern Europe, it already accounts for the majority of live births.[10]

In 2009, 41% of children born in the United States were born to unmarried mothers (up from 5% a half-century ago). That includes 73% of non-Hispanic black children, 53% of Hispanic children and 29% of non-Hispanic white children.[11][12] In April 2009, the National Center for Health Statistics announced that nearly 40 percent of American infants born in 2007 were borne by an unwed mother; that of 4.3 million children, 1.7 million were born to unmarried parents, a 25 percent increase from 2002.[13] The percentage born extramaritally increased 21% during 2002–2007, reaching at 1,714,643 in 2007 (or nearly 4 in 10 U.S. births).[8] Most births to teenagers in USA (86% in 2007) are nonmarital, 60% of births to women 20–24 and nearly one-third of births to women 25–29 were nonmarital in 2007.[8] Teenagers accounted for just 23% of nonmarital births in 2007, down steeply from 50% in 1970.[8]

In Europe, the average has risen steadily during the last decades. In 2011, 37.3% of all birth in the EU 27 countries were extramarital. National figures in Europe range from 8.1% in Greece and 15.2% in Cyprus to 59.7% in Estonia and 64.3% in Iceland.[14][15] A majority of births were outside marriage in Iceland (64.3%), Estonia (59.7%), Slovenia (56.8%), Bulgaria (56%), Norway (55%), Sweden (54.2%), and France (55%).[15] Other European countries with a high rate of extramarital births are Belgium (49%), Denmark (48.6%), UK (46.9%), Latvia (43.7%), Netherlands (43.3%), Hungary (42.2%), Czech Republic (41.8%), Finland (40.8%), Austria (40.4%), Luxembourg (34.7%), Slovakia (34.0%), Germany (33.5%).[15][16][17]

Births outside marriage have also increased in traditionally Catholic countries such as Portugal (42.8%), Spain (34.5%), Ireland (33.8%), Malta (22.7%), Italy (21.4%) and Poland (21.2%).[15][18]

The percentage of first-born children born outside wedlock is considerably higher (by roughly 10% for the EU), as it often occurs that a marriage takes place after the first baby has arrived.

Latin America has the highest rates of non-marital childbearing in the world (55–74% of all children in this region are born to un-married parents).[19] In most countries in this region, children born outside of marriage are now the norm. Even during the early 1990s the phenomenon was very common: in 1993 the rate of children born out of wedlock was: in Mexico was 41.5%, in Chile - 43.6%, in Puerto Rico - 45.8%, in Costa Rica - 48.2%, in Argentina - 52.7%, in Belize - 58.1%, in El Salvador - 73%, in Panama - 80%.[20][21]

In 2007 Paraguay - 70%, in Dominican Republic - 63%.[21]

Out-of-wedlock births are less common in Asia: in 1993 the rate in Japan was 1.4%; Israel - 3.1%; China - 5.6%; Uzbekistan - 6.4%; Kazakhstan - 21%; Kyrgyzstan - 24%.[20]

History

Certainty of paternity has always been considered important, especially in relation to a man's estate and genealogy. The ancient Latin phrase - "Mater semper certa est" ("The mother is always certain"), while the father is not - emphasized the dilemma. At common law there was a presumption of paternity that a married woman's child was that of the husband. However, that presumption could be questioned.

In many societies, people born out of wedlock did not have the same rights of inheritance as those of legitimate birth, and in some societies, even the same civil rights.[which?] In the United Kingdom and the United States, as late as the 1960s and in certain social strata even up to today, illegitimacy has carried social stigma.[22][23] In previous centuries unwed mothers were forced by social pressure to give their children up for adoption. In other cases illegitimate children have been reared by grandparents or married relatives as the "sisters", "brothers" or "cousins" of the unwed mothers.[24]

In most national jurisdictions, the status of a child as a legitimate or illegitimate heir could be changed - in either direction - under the civil law: A legislative act could deprive a child of legitimacy (as in the cases of the sons of Edward IV of England); conversely, a marriage between the previously unmarried parents, usually within a specified time, such as a year, could retroactively legitimate a child's birth.

Fathers of illegitimate children often did not incur comparable censure or legal responsibility, due to social attitudes about sex, the nature of sexual reproduction, and the difficulty of determining paternity with certainty.

By the final third of the 20th century, in the United States, all the states had adopted uniform laws that codified the responsibility of both parents to provide support and care for a child, regardless of the parents' marital status, and gave illegitimate as well as adopted persons equal rights to inherit their parents' property. In the early 1970s, a series of Supreme Court decisions abolished most, if not all, of the common-law disabilities of bastardy, as being violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution.[25] Generally speaking, in the United States, "illegitimacy" has been supplanted by the phrase "born out of wedlock."

A contribution to the decline of the concept of illegitimacy had been made by increased ease of obtaining divorce. Prior to this, the mother and father of many children had been unable to marry each other because one or the other was already legally bound, by civil or canon law, in a non-viable earlier marriage that did not admit of divorce. Their only recourse, often, had been to wait for the death of the earlier spouse(s). Thus Polish political and military leader Józef Piłsudski (1867–1935) was unable to marry his second wife, Aleksandra, until his first wife, Maria, died in 1921; by which time Piłsudski and Aleksandra had two out-of-wedlock daughters.[26]

Social implications

Illegitimacy has affected not only the illegitimate individuals themselves. The stress that such circumstances of birth once regularly visited upon families, is illustrated in the case of Albert Einstein and his wife-to-be, Mileva Marić, who—when she became pregnant with the first of their three children, Lieserl—felt compelled to maintain separate domiciles in different cities.

Some persons of illegitimate birth have been driven to excel in their endeavors, for good or ill, by a desire to overcome the social stigma and disadvantage that attached to illegitimacy. Nora Titone, in her book My Thoughts Be Bloody, recounts how the shame and ambition of actor Junius Brutus Booth's two illegitimate actor sons, Edwin and John Wilkes Booth, spurred them to strive, as rivals, for achievement and acclaim—Edwin, a Unionist, and John Wilkes, the assassin of Abraham Lincoln.[27]

Similarly, T. E. Lawrence's biographer Flora Armitage writes about his illegitimacy: "The effect on [T.E.] Lawrence of this discovery was profound; it added to the romantic urge for heroic conduct—the dream of the Sangreal—the seed of ambition, the desire for honor and distinction: the redemption of the blood from its taint."[28] Another biographer, John E. Mack, writes in a similar vein: "[H]is mother required of him that he redeem her fallen state by his own special achievements, by being a person of unusual value who accomplishes great deeds, preferably religious and ideally on an heroic scale. Lawrence did his best to fulfill heroic deeds. But he was plagued, especially after the events of the war activated his inner conflicts, by a deep sense of failure. Having been deceived as a child he was later to feel that he himself was a deceiver—that he had deceived the Arabs..."[29] "Mrs. Lawrence's original hope that her sons would provide her personal redemption by becoming Christian missionaries was fulfilled only by [Lawrence's brother] Robert."[30] Mack elaborates further: "Part of his creativity and originality lies in his 'irregularity,' in his capacity to remain outside conventional ways of thinking, a tendency which... derives, at least in part, from his illegitimacy. Lawrence's capacity for invention and his ability to see unusual or humorous relationships in familiar situations come also... from his illegitimacy. He was not limited to established or 'legitimate' solutions or ways of doing things, and thus his mind was open to a wider range of possibilities and opportunities. [At the same time] Lawrence's illegitimacy had important social consequences and placed limitations upon him, which rankled him deeply... At times he felt socially isolated when erstwhile friends shunned him upon learning of his background. Lawrence's delight in making fun of regular officers and other segments of 'regular' society... derived... at least in part from his inner view of his own irregular situation. His fickleness about names for himself [he changed his name twice to distance himself from his "Lawrence of Arabia" persona] is directly related... to his view of his parents and to his identification with them [his father had changed his name after running off with T.E. Lawrence's future mother]."[31]

In popular culture

Illegitimacy has for centuries provided a motif and plot element to works of fiction by prominent authors, including William Shakespeare, Benjamin Franklin, Henry Fielding, Voltaire, Jane Austen, Alexandre Dumas, père, Nathaniel Hawthorne, Charles Dickens, Wilkie Collins, Anthony Trollope, Alexandre Dumas, fils, George Eliot, Leo Tolstoy, Ivan Turgenev, Fyodor Dostoyevsky, Thomas Hardy, C.S. Forester, Marcel Pagnol, Grace Metalious, John Irving and George R. R. Martin.

Notable people

Notable people born outside of marriage have included:

See also

References

  1. ^ Resources - 1788 - Before European Settlement.
  2. ^ Alan Macfarlane, Illegitimacy and illegitimates in English history. (2002)
  3. ^ Legitimacy Act 1926 (16 & 17 Geo. 5 c. 60)
  4. ^ New Advent
  5. ^ "US Supreme Court Cases from Justia & Oyez". http://supreme.justia.com/constitution/amendment-14/90-illegitimacy.html. Retrieved 19 July 2011. 
  6. ^ "Instructions for N-600, Application for Certificate of Citizenship". U.S. Citizenship and Immigration Services. http://www.uscis.gov/files/form/n-600instr.pdf. Retrieved 1 October 2010. 
  7. ^ Tuan Anh Nguyen et al. v. Immigration and Naturalization Service, 533 U.S. 53 (2001).
  8. ^ a b c d "Changing Patterns of Nonmarital Childbearing in the United States". CDC/National Center for Health Statistics. May 13, 2009. http://www.cdc.gov/nchs/data/databriefs/db18.htm. Retrieved September 24, 2011. 
  9. ^ "Share of births outside marriage and teenage births". OECD Directorate for Employment, Labour, and Social Affairs. http://www.oecd.org/dataoecd/38/6/40278615.pdf. Retrieved Oct. 19, 2009. 
  10. ^ "Fertility Statistics". European Commission Eurostat: Your key to European Statistics. http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Fertility_statistics. Retrieved Jan. 20, 2010. 
  11. ^ "National Vital Statistics Reports, Volume 59, Number 3, December 21, 2010". http://www.cdc.gov/nchs/data/nvsr/nvsr59/nvsr59_03.pdf?loc=interstitialskip. 
  12. ^ "Our view on kids: When unwed births hit 41%, it's just not right". USA Today. 25 January 2011. http://www.usatoday.com/news/opinion/editorials/2011-01-25-editorial25_ST_N.htm. 
  13. ^ Ravitz, Jessica (April 8, 2009). "Out-of-wedlock births hit record high". CNN. http://www.cnn.com/2009/LIVING/wayoflife/04/08/out.of.wedlock.births/index.html?iref=t2test_livingwed. Retrieved Oct. 19, 2009. 
  14. ^ http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&init=1&language=en&pcode=tps00018&plugin=0
  15. ^ a b c d "Live births outside marriage 2012". http://epp.eurostat.ec.europa.eu/portal/page/portal/product_details/dataset?p_product_code=TPS00018. 
  16. ^ [1]
  17. ^ http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Marriage_and_divorce_statistics#A_rise_in_births_outside_marriage
  18. ^ Marriage and divorce statistics: A rise in births outside marriage
  19. ^ http://sustaindemographicdividend.org/articles/international-family-indicators/global-childrens-trends
  20. ^ a b UN. "Live births by legitimacy status, and percent illegitimate: 1990 - 1998". http://unstats.un.org/unsd/demographic/products/dyb/DYBNat/NatStatTab13.pdf. 
  21. ^ a b "Illegitimate Nation: An Examination of Out-of-Wedlock Births Among Immigrants and Natives". http://www.cis.org/illegitimate_nation.html. 
  22. ^ Flora Armitage, The Desert and the Stars: A Biography of Lawrence of Arabia, p. 42.
  23. ^ John E. Mack, A Prince of Our Disorder: The Life of T.E. Lawrence, pp. 28–29, 32.
  24. ^ On the 4 March 2011 Charlie Rose TV interview program, British Nobel laureate Paul Nurse told such a story of "shame": he was reared by his grandparents as the supposed younger brother of his now-deceased biological mother, and has never learned who his biological father was.
  25. ^ "Illigitimacy". Justia.com. http://supreme.justia.com/constitution/amendment-14/90-illegitimacy.html. Retrieved 2009-10-19. 
  26. ^ Andrzej Garlicki, "Piłsudski, Józef Klemens," Polski słownik biograficzny, vol. XXVI, 1981, pp. 320, 323.
  27. ^ Nora Titone. My Thoughts Be Bloody: The Bitter Rivalry Between Edwin and John Wilkes Booth That Led to an American Tragedy. New York: Simon and Schuster; 2010 [cited September 24, 2011]. ISBN 978-1-4165-8605-0.
  28. ^ Flora Armitage, The Desert and the Stars: A Biography of Lawrence of Arabia, p. 42.
  29. ^ John E. Mack, A Prince of Our Disorder: The Life of T.E. Lawrence, 1976, p. 28.
  30. ^ John E. Mack, A Prince of Our Disorder: The Life of T.E. Lawrence, 1976, p. 32.
  31. ^ John E. Mack, A Prince of Our Disorder: The Life of T.E. Lawrence, 1976, pp. 28–29.
  32. ^ Confucius: His Life and Thought, By Shigeki Kaizuka. http://books.google.com/books?id=wcbuFDI5cX8C&pg=PA48&lpg=PA48#v=onepage&q&f=false. 
  33. ^ "St. Vladimir the Great". Catholic Encyclopedia. http://www.newadvent.org/cathen/15497a.htm. 
  34. ^ Links.jstor.org, Samuel C. Ramer, "The Traditional and the Modern in the Writings of Ivan Pnin," Slavic Review, vol. 34, no. 3 (Sept. 1975), pp. 539-59.
  35. ^ "Forbes top 10 richest people in the world". Reuters.com. 9 March 2011. http://www.reuters.com/article/2011/03/09/us-billionaires-top-idUSTRE7287C720110309?pageNumber=2. Retrieved 2012-05-14. 
  36. ^ "Larry Ellison". Forbes. http://www.forbes.com/profile/larry-ellison. 

Bibliography

External links