A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

Therefore, according to Nwogugu; the state of illegitimacy exist under customary law but the traditional love of children and the spontaneous willingness of the grandfather or the putative father to accept the child removes that status, customary Law, therefore leans heavily in favour of illegitimate child. The status of illegitimacy used to be the biggest discrimination suffered by a child born out of lawful wedlock, however, a new turn in the legal position of illegitimate child in Nigeria began in October 1975 when the constitution drafting committee was appointed to draft a new constitution for Nigeria by the Federal Military Government, the sub-commission on citizenship, fundamental rights and electoral system recommended that, the legal sub-committee should in addition to the fundamental right write into the draft constitution a number of additional rights including inter alia. ‘The right of every child, whether born in or out of wedlock to equitable treatment’ as a result of this section 32 (2) of the 1979 Nigerian Constitution now Section 42 (2) 1999 constitution came into being. The big question however is that is the status of illegitimacy no longer in existence in Nigeria?
English common law placed harsh penalties on an illegitimate child denying the child inheritance and property right, modern law has given the illegitimate child more right but still differentiates between legitimate and illegitimate children.
At common law, a child was considered illegitimate if the parents were not married to each other at the time of the child’s birth even though the parents were married later, there was a common law presumption that a child born of a married woman was legitimate. This presumption is however rebuttable, upon proof that her husband either was physically incapable of impregnating her or was absent at the time of conception. In addition, a child born of a marriage for which an annulment was granted was considered illegitimate, since an annulled marriage is void retroactively from its beginning. Furthermore, if a man married a second time while still legally married to his first write, a child born of the bigamous marriage was illegitimate. At common law an illegitimate child was a fillius nullius (child of no one) and had no parental inheritance rights.
This deprivation was based in part on societal and religious beliefs concerning the sanctity of the marital relationship, as well as the legal principles that property rights were determined by blood relationships. The legal rights and duties of a person born of married parents could be ascertained more accurately than those of a child with an unknown or disputed father. Public policy which is in favour of maintaining solid family relationships contributed significantly to the preference for a legitimate child.
The harsh aspects of the common law dealing with an illegitimate child has however been eliminated.
2.7.0 DIFFERENCES BETWEEN A LEGITIMATE AND ILLEGITIMATE CHILD
Having properly defined a legitimate and an illegitimate child, it will be noteworthy to examine the differences between the both of them. The status of illegitimacy has been in existence through the ages, and it has been expressed by the society’s condemnation and resentment of irresponsible union beyond the bonds of marriage, putting the blame on the head of the child, who is in no way responsible for his predicament. Punishing the child for the sins of his parents is unjust, illogical and unnecessary, the above are the distinction between a legitimate and illegitimate child. A legitimate child is one born to parents who are legally married, the emphasis here is birth not conception, children conceived by a married woman is legitimate, if the parents are married at the time of the his birth, while an illegitimate child is one born out of a valid marriage.
At common law an illegitimate child was fullius nullius meaning the child of nobody. Another distinction between a legitimate and an illegitimate child is that a legitimate child having been born in lawful wedlock is entitled to right of inheritance, succession and maintenance amongst other related rights from his parents, while an illegitimate child on the other hand cannot lay claim to the above rights because he is an illegitimate child, and as such not entitled to such rights. Section   10(2) 47“No child shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth” Three years after the enactment of this Act, it has only been enacted into law in three states of the federation namely Lagos, Ogun and Edo States out of the 36 states of the federation in essence it means that it is only the children in the above named states, that will be free
Federal Republic Of Nigeria Official Gazette, Act no 26, 2003 volume 90 of the new enacted Child’s Right Act from discrimination by reason of the circumstances of their birth, while the children of other states will not be entitled to enjoy the benefit of the above named Act.
Thus an illegitimate child will be denied the right to his parent who dies intestate, it is pertinent to note that paternity should be determined by the court before the death of an intestate parent, this is reasonable as it helps prevent false and fictitious inheritance claim against the estate of an alleged father who is now deceased. An illegitimate child when legitimated either by the subsequent marriage of his parents, or by acknowledgement of paternity by his father shall enjoy the same right and shall be under the same obligation in respect of maintenance and support as if he has been born legitimate.48 If the parent dies intestate, a legitimate child is entitled to property from both parents. An illegitimate child cannot inherit his father’s property if the father dies intestate however, that child can inherit the mother’s property if she dies intestate unless she has other legitimate children.