A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

A similar provision in Nigerian law, is submitted will go a long way to alleviate the hardships of a void marriage. A void marriage is one that is considered never to have taken place, no matter the procedure that have been taken by the people concerned, they are just not married because they have not complied with the rules of the place of the celebration of marriage.
The Matrimonial Causes Act 1970 states that a marriage is void if the partners are related in a forbidden degree for example, a marriage between brother and sister would be void, it does not matter if the partners did not know they were related when the ceremony was carried out, although it sounds odd, it has happened in adoption cases. A marriage is void if;
•    Either partner was under sixteen years of age
 
•    The formal procedures of marriage were not followed for example; the wedding may not have been in a registered building or open to the public.
•    The partners are of the same gender at birth.
Therefore children born in a void marriage are illegitimate as the marriage is considered never to have happened.
2.5.0 LEGITIMACY OF CHILDREN OF A VOIDABLE MARRIAGE
At common law, a decree of nullity in respect of voidable statutory marriages was retroactive, thereby bastardizing the children of the marriage. But a major change has been affected in this respect by the Matrimonial Causes Act 1970, in its Section 38 (1) of the, a decree of nullity in respect of a voidable marriage is effective only from the date in which the decree becomes absolute. Moreover, such decree of nullity does not render illegitimate the child of the parties born since, or legitimated during the marriage.45 The child of a voidable customary law marriage is not regarded as born legitimate, but such a child may in some parts of the country, be legitimated by the subsequent acknowledgement by its natural father. A voidable marriage is one that is not void from the outset, as may be the case with a marriage conducted illegally, but may declared void in the course of time. The matrimonial causes act 1970 in its section 5 states that a marriage is voidable if;
•    Either partner does not or cannot consummate the marriage
•    Either partner did not consent to the marriage

•    Either partner was not mentally competent to consent to the marriage

•    Either partner was suffering from a sexually transmitted disease

•    The woman was pregnant by another man.

A voidable marriage is assumed to be in effect until annulled by the court this means that children born in a voidable marriage are legitimate.
2.6.0 ILLEGITIMACY

This is the status attributed to a child born out of lawful wedlock, it is the status given to a child whose mother is not legally married to the father of the child, or a child whose mother is legally married, but the father of her child is not her lawful husband, such a child is ipso factor illegitimate, this status can however be remedied by the subsequent marriage of his biological parents and also under some customary law in Nigeria by acknowledgement by the putative father. Under the received English law, a child born out of lawful wedlock, is regarded as illegitimate, and this illegitimate status deprives the child of certain rights in respect to his natural father, these rights includes right to maintenance, succession, custody amongst other rights. However an illegitimate child when legitimated under the legitimacy act will be accorded these rights. Under customary law the question of the existence of the status of illegitimacy has been contested by writers. Coker described the position under the Yoruba customary law thus:
 
It is generally supposed that there is no status of illegitimacy in native law and custom, this however is not correct, for there is a status of illegitimacy as opposed to that of legitimacy.
The latter entitled the subject ipso facto to succeed to property, the former disentitles the subject from so succeeding unless his rights are legalized by an acknowledgement of paternity’ by the father. Generally speaking a child born in lawful wedlock is legitimate from birth, whereas an illegitimate child can only be legitimated if he was duly acknowledged by his father. It is important to observe that the bastard is so regarded among the Yoruba’s commonly called the Omo-ale which literary means ‘the child of an adulterous or an unmarried woman46 Therefore, a child who is not born in lawful wedlock and acknowledged by his father has no right to succession under the Yoruba customary law.
Dr. Obi concluded after he carried out a study in Southern Nigeria that a child born of an unmarried mother is illegitimate at birth, this statement may however be modified as the child of an unmarried mother may be regarded as born legitimate in respect of its maternal grandfather. In the Ibo custom, if an unmarried woman gives birth to a child or is pregnant some social stigma is usually attached to such pregnancy, which is commonly called ‘ime nkpuke’ and which literally means ‘pregnancy out of matrimonial home’.