The Gazette 1989

GAZETTE

DECEMBER 1989

The Law relating to the Status of Children born outside Marriage and their Property Rights PART I

N.a S. 9 (i) An illegitimate child (or,

The law governing the succession rights of illegitimate persons and succession rights to the estates of such persons can be said to fall into three distinct periods:- 1. The Common Law Position (which applies to all deaths prior to 19/5/'31). 2. The law between the Legitimacy Act 1931 (19/5'31) and The Status of Children Act 1987 (operative date for property rights (Part V) 14/6/'88). 3. The law since the Status of Children Act 1988 (all Wills made on or after and deaths intestate on or after 14/6/'88) 1. THE COMMON LAW POSITION The Common Law Position was that of 'Nullus Filius' (i.e. a bastard has no heirs). This actu- ally means that the only next of kin an illegitimate child could have would be his lawful issue and his succession rights were confined thereto. He had no succession rights to either of his parent's estates (nor they to his), nor to any other relations of his. 2. THE LEGITIMACY ACT 1931 This is existing law for all Wills (and instruments creating Powers of Appointment) made before 14/6'88 and all deaths Intestate before that date. The Act provides as follows: S. 1 (i) If parents subsequently marry each other the child is legitimated, (ii) A child cannot be legiti-

S. 2 (i) The illegitimatge or his issue can apply to Court for a declaration. S. 3 (i) Once legitimated he is entitled to take normal (legitimate) share

if he is dead, his issue) has succession rights to his Mother but only where she leaves no legitimate issue surviv- ing. (ii) Likewise, a mother has

(a) in an estate of an Intestate dying after legitimation data (b) under any disposition coming into operation

succession rights to her child as if he were born legitimate S. 11 (i) Date of legitimation

means the date of the marriage leading to the legitimation or where the marriage occurred before the 19/5/'31 then said date

By Christopher Lehane, B.L., Assistant Probate Officer

after the date of legiti- mation.

Schedule 1. Registrar General could register a person as legitimated on in- formation supplied by both parents. 2. Father can on original registra- tion of birth allow his name to be entered as father. 3. Court could order Registrar to register a man as father. 4. While putting a duty on parents to re-register the child as legitimated after marriage; failure to do so does not affect his legitimation. The Succession Act 1965 did not make any changes improving the rights of illegitimate children. Two major constitutional cases were brought seeking to equalise the rights of illegitimate children with legitimate children, both of which failed. In the estate of NW f 29/5/1979, unreported. McWilliam J. Held: "(i) General Rule at Common Law,

(c) under any entail cre- ated after the date of legitimation. S. 3 (ii) If the right depends on seniority he will so rank from date of legitimation, (iii) Disposition may express a contrary intention which would prevail. S. 4 (i) Where a legitimated per- son dies, normal suc- cession rights apply, as if legitimated person had been born legitimate S. 5 (i) If illegitimate dies before

marriage of both his par- ents to each other (which would have leg- itimated him) but leaving a spouse, children or remoter issue who were alive at the date of the marriage then, for pur- poses of the interests of the spouse; child etc. and to the spouse; child, etc the illegitimate child shall be deemed to have been legitimated at the date of the marriage

mated by above mar- riage unless the father and mother of such person could have been lawfully married to each other at time of birth or at some time during pre- ceding 10 months.

'NuNus FHius', that a bastard can have no kindred except legitimate issue, has been

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