Legitimacy (law)
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In the common-law tradition, legitimacy describes the status of children who are born to parents that are legally married, or born shortly after a marriage ends through divorce. The opposite of legitimacy is the status of being illegitimate — born to unmarried parents, or to a married woman but of a father other than the woman's husband.
The definition of legitimacy at common law famously differed from the definition of canon law — the laws of the church. The church would recognize any child of married parents as legitimate, even if the marriage took place immediately before the woman gave birth. Common law, taking a less indulgent view (and amended by Britain's Legitimacy Act 1977), required that at least seven months intervene between the wedding and the birth for the child to be legitimate in the eyes of the law of England.
In both canon and civil law, the offspring of putative marriages are legitimate.
Legitimacy was formerly of great consequence, in that only legitimate children could inherit their fathers' estates. In the United States, a series of Supreme Court decisions in the early 1970s abolished most, but not all, of the common-law disabilities of bastardy as violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution.
One area where legitimacy still matters is in lines of succession to titles. For instance, only legitimate children are part of the line of succession to the Monegasque Throne.
[edit] Legitimacy in England & Wales
Section 1 of the Legitimacy Act 1976 provides as follows:
Subject to the following provisions of this Act, where the parents of an illegitimate person marry one another, the marriage shall, if the father of the illegitimate person is at the date of marriage domiciled in England and Wales, render that person, if living, legitimate from the date of the marriage.
Extract from Hershman McFarlane Section A.5
Father The child's father is in the same position as the mother if he was married to the child's mother at the time of the child's birth(1), in that he also has parental responsibility for his child.
Where the child's parents were not married at the time of the child's birth, the child's father will still have parental responsibility for his child if the child is legitimated by statute(2). The father will acquire parental responsibility by virtue of the legitimation. FLRA 1987 sets out the circumstances where the child's parents are treated in law as having been married at the time of the child's birth, even though they were not(3).
(1) CA 1989, s 2(1). (2) FLRA 1987, s 1(2). (3) Ibid, s 1(3); see also [103].
