A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

CHAPTER 2
LEGITIMACY
2.0.0 INTRODUCTION
Legitimacy is the status of a child who is born to parents who are legally married to one another or who is born shortly after the parents marriage ends through divorce the opposite of legitimacy is the status of being illegitimate, that is the status of a child born to a woman and a man who are not married to one another. In both cannon and civil law the offspring of putative marriages are considered legitimate.
Legitimacy is of great importance, in that only legitimate children can inherit their father’s estates, and also enjoy the status incident to legitimate children, which includes the right to maintenance, custody amongst other rights. Legitimacy is an important topic and aspect of law owing to the growing number of illegitimate birth that has been on the increase in recent times, where more than one-third of births in Nigeria are mostly of unmarried mothers.
Law in many societies has denied persons of illegitimate birth the right of inheritance and other rights which legitimate children enjoy leaving them to bear the brunt and carry the social stigma incidence to their status
2.1.0 CONCEPT OF LEGITIMACY
Osborne concise law Dictionary34 defines legitimacy as ‘a condition of being born in lawful wedlock’.
In Lawal v. Younam35 it was held that in Nigeria lawful wedlock includes not only marriage under the marriage act, but also customary law marriage and Islamic law marriage.
Generally, the relationship between a child and his parent depends on the status of the child that is whether or not he is legitimate, as the rights and duties imposed on his parents depend on it. Black’s Law Dictionary defines Legitimacy as lawful birth that is the condition of being born in wedlock, the opposite is illegitimacy or bastardy, it also refers to the status acquired by a person who is born in lawful wedlock; such a child is recognized as legitimate from birth.
Therefore to be legitimate at birth, the parent of the child must be lawfully married either at the time of his conception or at the time of birth in Lawal v. Younan37 Ademola CJN ‘as he then was’ stated that in Nigeria a child is legitimate if born in lawful wedlock according to the marriage Ordinance, or under native law and custom.
In Nigeria, lawful marriage include not only marriage under the marriage act but also includes customary law marriage and Islamic law marriage, these are the type of marriages the law of this country recognize and accepts as legal therefore, the issues of such marriages are therefore legitimate. We will now examine the types of marriages accepted in Nigeria as valid one after the other which makes the issues of such marriages legitimate.
Statutory marriage is the type of marriage celebrated under the act, and it is said to be good and valid for all intent and purpose provided they have complied with the provision and requirement of the act in respect of a valid statutory marriage, this type of marriage is monogamous in nature, and it is the union for life of one man and woman to the exclusion of others,38 therefore the issues of such marriages are legitimate.
Customary law marriage in Nigeria is polygamous in nature; there is however no uniform system of marriage under customary marriage, as marriage custom differs from place to place and locality to locality. The term therefore covers a multitude of system of law which is different from one community to another. Customary law marriage which is polygamous in nature means marriage of one man to more than one woman, one essential feature of polygamous marriage is that there is no limit to the number of wives a man can marry as this normally depends on his affluence.
Islamic law marriage allows a man to marry more than one wife, but unlike customary law marriage, where there is no limit to the number of wives a man can marry, Islamic law marriage limits the numbers of wives to a maximum of four,in essence, the incidence of Islamic and customary law marriage are valid and is issues thereof are legitimate and are entitled to rights of a legitimate child.