A Critical Apprisal Of Legitimacy And Legitimation Under Nigerian Family Law

CHAPTER 3
LEGITIMATION
3.0.0 INTRODUCTION
Legitimation is the process by which a child who has not been born legitimate acquires a legitimate status, the process of legitimation may be achieved by the subsequent marriage of the parents of the child, or acknowledgement by its natural father, that is the recognition of paternity by its natural father. The term ‘legitimation’ presupposed that the child was not legitimate at birth; it is therefore the process whereby such a child can acquire the status of a legitimate person. In Nigeria the process is either by the subsequent marriage of the child parents or the acknowledgement of paternity by the father of such a child, it is a means of protecting an illegitimate child so as to safeguard his right and benefit in relation to the society.
Black Law Dictionary defines it as ‘the making legitimate or lawful that which was not originally so, especially the statutory procedure of legalizing (legitimating) the status of an illegitimate child’. It is a way of eliminating the social stigma and discrimination attached to a child as a result of the circumstances surrounding his birth and giving a child a legitimate status, to acquire a legitimate status by legitimation, the parents of the child must have been married under the marriage act, and in some customary law by recognition of paternity by the father of the child, and by the subsequent customary law marriage of such a child parents. The condition to be fulfilled before a child can be said to have been legitimated are provided for under the legitimacy Act51 as obtainable and practicable under the marriage act.

The modes of legitimation that will be discussed are legitimation by subsequent marriage, either statutory or customary marriage and acknowledgement of the child’s paternity as a means under customary law.
3.1.0 LEGITIMATION BY SUBSEQUENT STATUTORY LAW MARRIAGE.
The legitimation of an illegitimate child through the subsequent marriage of its parents was first made possible in Nigeria by the enactment of the Legitimacy Act 1929 52this piece of legislation though based substantially on the earlier English legitimacy Act 1926, contained some variations intended to suit local conditions. The 1929 enactment applied then to the whole country, with the introduction of federalism in Nigeria in 1954, legitimacy became a regional subject on which the various regional governments could legislate, fortunately the regional government inherited and preserved the original enactment without alteration, and this accounts for the fact that there is now uniformity in state laws on legitimacy.
By Section 3(1) of the Legitimacy Act where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Act, the marriage shall, if the father of the illegitimate person was, or is at the date of the marriage domiciled in Nigeria, render that person, if living legitimate from the commencement of the Act, or from the date of the marriage whenever last happens.
The Operation of Section 3(1) is based on the fulfilment of certain prerequisites, first the parents of the illegitimate person must have subsequently married each other ,the marriage must be a statutory one in accordance with the marriage Act and not marriage under customary law, second, the father of the illegitimate person must be domiciled in a state in Nigeria at the time of the marriage, Section 2(3) of the Matrimonial Causes Act 1970 states that it is only for the purposes of matrimonial causes that there is one Nigerian domicile.
Third it is essential that the person to be legitimated, must be alive at the date of the marriage, Section 3(1) states that the effect or the marriage is to render that person if living legitimate, the legal effect of the subsequent marriage of the parents is to make the illegitimate person legitimate from the commencement of the Act or from the date of the marriage, whenever happens last, thus, is if the marriage took place before the commencement of the act which was 17 October 1929 the illegitimate person will become legitimate as from the commencement of the Act.
It is significant to note that, there is no requirement that the parents of the illegitimate person must not be married to some other persons at the time the child is conceived or born; consequently, the child of an adulterous union may be legitimated by the subsequent marriage of its parents in accordance with the legitimacy Act.
Section 9(1) of the Legitimacy Act makes provision for the situation where the father of an illegitimate person was domiciled in a foreign country, if at the time of the birth of the illegitimate person, the father was domiciled in a country, the law of which does not permit legitimacy per subsequent matrimonial, but at the time of his marriage to the mother of the illegitimate child, he was domiciled in a country, the law of which such legitimation is recognized, the illegitimate person will be recognized as legitimated in Nigeria, the legitimation will be by virtue of the subsequent marriage and it takes effect from the commencement of the Act, or the date of the marriage whichever happens last.
However at common law, legitimation per subsequent matrimonial by any foreign law was recognized, if the father of the child was domiciled in a country recognizing legitimation at the time of the child’s birth and at the time of marriage as held in Re Grove Under the English Legitimacy Act 1926, all the father has to establish is a domicile in England at the time of the marriage, by Section1(2) of the same Act, it is impossible to legitimate children of adulterous unions, what was material was the date of birth and not time of conception, if the child was conceived during a marriage but born after the marriage, he can still be legitimated, if the parents remarry, however, by the legitimacy Act 1959, it is now possible to legitimize children of adulterous unions.
The Legitimacy Act deals only with Christian marriages, which is monogamous in nature, this will also include statutory law marriages, if the subsequent marriage after the birth of the child is a customary law marriage, the Legitimacy Act does not apply.
Section 3 of the Act provides that where the parents of an illegitimate person marry or have married one another whether before or after the commencement of this Act, the person shall, if living be legitimated from the commencement of this Act or from the date of the marriage which ever last happens.
Many point call for discussion in the above section: a unlike the common law requirement it is only necessary to prove that the father was or is at the time of the marriage domiciled in any region in Nigeria or the federal capital territory, if the marriage occurs after the commencement of the Act which is, October 17, 1929, the child is deemed to be legitimated from the actual date of marriage, however, if marriage occurred before the Act, the effective date of legitimation is October 17, 1929 which was the date the Act was passed.
Must the father of the illegitimate child be alive before legitimation can be established? A had a son in 1925 by whom he was not married, they got married in 1927, and A died in 1928 before the legitimacy Act 1929 was passed, is the son legitimated as a result of the 1929 Act? There is no Nigerian authority on this, though doubt was raised in the Australian case of Public Trustee v. Wilson54, on the legitimacy of such a child. It however appears that legitimacy must be established during the lifetime of the child since Section 3 makes this a condition precedent.