A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

CHAPTER 1
GENERAL INTRODUCTION
1.0.0 INTRODUCTION
The question of legitimacy and legitimation are principally connected with status. It is therefore, important to determine the status of a child at any given moment as it has far reaching legal consequences. A child may be born legitimate or acquire that status by subsequent legitimation1. A legitimate child is one regarded by law as a child born with full rights and it confers on the child certain rights against the man whom the law regards as his father and generally against the society, but the bastards like the prostitute, thief and the beggars belong to the motley crowd of disreputable social types which the society had generally resented but endured2.
1Nwogugu E I ‘Family law in Nigeria’ Revised edition, Heinemann Educational books, Nigeria plc1974
2Davies K. ‘illegitimacy and social structure’American Journal of Sociology, 1939,45
Legitimacy for lawyers is a concept whereby a couple’s child is entitled to full recognition as a family member and enjoys the legal right which the status involves.3 It implies that children born out of wedlock are referred to as illegitimate, as is generally believed that people are not supposed to have illegitimate children but when they do emergency machinery is put to operation to give the child a status which is an interior one.
The position of the common law is that the incapacity of a bastard consists primarily in this, that he cannot be heir to any one, neither can he have heirs but of
his own body for being nullius fullius, he is therefore likened to nobody and he has no ancestors from whom any inheritable blood can be derived.
The belief is that by regulating illegitimate children to the background and by denying them the filial rights enjoyed by legitimate children the society will be able to purge themselves of their existence which is usually not so.
The basic ingredients to prove the legitimacy of a child are:
•    There must exist a valid marriage between the parents of the child, customary, Islamic or statutory law marriage.
•    The wife has to be the mother of the child in question.

•    The father is also presumed to be the husband of the mother of the child born during the subsistence of the marriage.
The above requirement must be fulfilled before a child will be said to be legitimate, the absence of which the child will be seen as illegitimate. This is the obtainable position under the common law; the situation exposes illegitimate children to social and legal deprivations and also denies them the rights of a legitimate child which includes the right to succession, protection, maintenance, custody, amongst other related rights.
This actually informed the concept of legitimation, which aims at restoring rights that the illegitimate children have been wrongfully deprived of. The 1999 constitution did not expressly provide for legitimation, but it can be inferred from the right to freedom from discrimination, which provides that:
‘No citizen of Nigeria shall be subjected to any disabilities or deprivation merely by reason or the circumstance of his birth’.4
The study will therefore examine the concept of legitimation and see if the provision of the constitution has totally eradicated illegitimacy in order to entirely safeguard the right of a legitimated child; that is a former illegitimate child. The study will further examine the pitfalls, distinctions and discrimination that the illegitimate child faces and the various ways by which an illegitimate child can be legitimized. The various enactments, the legitimacy act, the customary and native perspectives will equally be examined.