A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

Alarape Salmon, (SAN),23 in his paper ‘in a country where the benefit are based on right, it will not be out of place to determine the status of a person be it a child or an adult because that determination is fundamental in determining among others, his right to succession and maintenance’ one realize that the basis for determining the status or a child differs from culture to culture and legal system to legal system in the western world.
e.g. America and Europe where their strict legal system only recognizes statutory marriage which is monogamous in nature, any child born out of such stipulated marriage, will be regarded as an illegitimate child, our customary society in Nigeria allows polygamy, In essence all the children born in a polygamous marriage are legitimate. Also a child becomes legitimate if the putative (supposed) father acknowledges paternity of the child.
The family law reform Act 1987, has abolished and removed the discrimination affecting illegitimate children, before the act was passed an illegitimate child could not succeed as heir to an entailed interest or title of honour, also the child was denied citizenship rights, but all this discrimination has been done away with the passing of the Act.
Furthermore, by virtue of the children’s Act of 1969, the distinction between legitimate and bastard children was abolished in New Zealand which has also been extended to Nigeria. Similarly the Family Law Reform Act 1969 has provided succour to the illegitimate child. The Family Law Reform Act 1987, has abolished and removed the discrimination affecting illegitimate children, before the act was passed an illegitimate child could not succeed as heir to an entailed interest or title of honour, also the child was denied citizenship rights, but all this discrimination has been done away with the passing of the Act.
DEFINITION OF TERMS
Some terms will be used in this work and as such a proper definition of such terms is expedient in order to have a clearer understanding of the topic under discussion. The terms include;
•    Marriage
This is the legal union of one man and one woman (many women) as husband and wife. It must be a union of persons of the opposite sex. According to Lord Penzance, In Hyde
v. Hyde24 a monogamous marriage is ’The voluntary union for life of one man and one woman to the exclusion of all others’.
In Sowa v. Sowa25 polygamous marriage is defined as the voluntary union for life of one man into one or several wives.
Osborn’s concise law dictionary26 defines marriage as essentially the voluntary union for life of man and one woman to the exclusion of all others subject to the rules as to consanguinity or affinity and capacity to perform the duties of matrimony prevailing in the place of domicile of the parties and subject to the formalities required either by the law of England or the place where the marriage takes place.
The import of this definition is that what constitute marriage and it validity depends on the law of the place it is celebrated, in essence if the marriage complies with the law of the place where it is celebrated, the marriage will be regarded as valid and binding. The formalities which must be complied with in order to constitute a valid marriage are contained in the Matrimonial Causes Act of 1970 and the rules of customary law which is largely unwritten.
From the above definitions marriage can be defined as the voluntary union for life of one man and woman as in the case of a monogamous marriage which is also in the same position with statutory law marriage or voluntary union for life of one man and two or women. As in the case of Islamic and customary law Marriages, however, the number of wives which a man can marry under Islamic law is limited to four.
•    A child
Black law dictionary27 defines a child is a progeny; an offspring of parentage unborn or recently born human being, a child is also used to describe a natural person who is an offspring of another either by birth or adoption and also represent from the moment of his birth until the attainment of the age of maturity. Osborne concise law dictionary28defines a child as;
‘.    a person under the age of eighteen’.
For the purpose to the Children Act 1989 in criminal matters, a child relates to an offender under the age of fourteen as seen in Children and Young Person’s Act 1969.