A child is legitimate at birth if the parents were lawfully married at the time of his conception or at the time of his birth. Therefore, a child is deemed legitimate if conceived during the marriage even if he is born after the dissolution of the marriage of his natural parents.
A child, on the other hand, is considered illegitimate if, he is born to parents who are not married.
Under the Customary Law, there is no connection between the concepts of Paternity, Marriage and Legitimacy. Thus, it is implied that a child may be legitimate even though the natural parents are not married to each other; a child may also be legitimate to a person who is not his natural father.
With particular reference to Igbo Custom, if a father who has no male child persuades one of his daughters not to marry so that she will remain in his house and bear male children for him for the purpose of succession; a child born under this arrangement is considered the legitimate child of the woman/girl’s father at birth and would enjoy all the rights of succession (inheritance) to the grandfather’s land(s) and title(s).
Accordingly, a ‘barren’ wife may pay the bride price of another woman to be her husband’s wife for the purpose of bearing children; such children, are the legitimate children of the woman’s husband.
All these are done with the paramount intention of “preserving” the name of the family. It is common to hear this name in Igbo land – “Afamefuna” which literarily means, let my name not be lost. Therefore, a male Child is desperately needed in order to preserve (and prevent) the family name (from being lost) and to guarantee continuous succession because a man without a male child is considered incomplete.
There is a custom which seems controversial and that is where a child is deemed the legitimate child of a man who is not it’s natural father.
In the case of Nwaribe V President of Oru District Court (1964) 8 ENLR 24, the court held that the subsequent child born by the wife of a dead man should be awarded (given) to the deceased’s brother. The challenge made by the applicant/plaintiff – Nwaribe, who impregnated the deceased’s widow that, the custom is contrary to natural justice, equity and good conscience was struck out by the court.
The judge, while delivering judgement in the above case, held that, the widow – Oyibo was pregnant while she was still residing in her late husband’s house and that her marriage remains undissolved irrespective of death. Moreover, there was no valid claim to the child because the late husband was not refunded the dowry.
Legitimacy of children born under a void marriage
Any child born under a void marriage is illegitimate. What constitutes a void marriage has been amply provided for under Section 3(1)(a – e) of the Marriage Act but in summary, a marriage is void if it has not met the basic requirements of the Law.
However, it is different when a valid marriage is celebrated under Customary Law before the subsequent void Statutory marriage. A marriage is Statutory if it is celebrated in a Licensed Place of Worship (Church or Mosque) or in a Registry.
It follows, therefore, that any child conceived or born after the void Statutory marriage is legitimate at birth due to the previous Customary (Traditional) marriage.
Legitimacy of children born under a voidable marriage
At Common Law, a decree of nullity in respect of a voidable Statutory marriage was retrospective, thereby bastardising the children of the marriage.
This was later changed by Section 38(1) of the Matrimonial Causes Act (M.C.A.) which states that, such a decree of nullity is only effective from the date on which the decree is made. In essence, such a decree does not render illegitimate a child born before or legitimated during the marriage.
Presumption of Legitimacy
Under the Common Law, a child born in lawful wedlock is presumed legitimate unless the contrary is proven.
Under Section 165 of the Evidence Act 2011, a child born during the continuance of a Statutory marriage or born within 280 days after the dissolution of such marriage is presumed legitimate.
Also, Section 115(3) of the M.C.A. provides that, where a person is born during the continuance of any marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, the court shall presume that the person involved is the legitimate child of that man.
Under the Customary Law, a child born during the subsistence of a Customary Law marriage is presumed legitimate.
Contrary to this, some systems of Customary Law presumes a child legitimate at birth even though born after the dissolution of the marriage and the refund or return of the bride price.
For example, under the Ebira (of Kogi State) Customary Law, where a child is born within 10 calendar months of a divorce; the child is regarded as the legitimate child of the former husband even though the child may not be his.
However, the Customary courts regard this presumption as irrebuttable while the superior courts treated it as rebuttable.
This is the process by which a child born without legitimacy becomes legitimate.
This is achievable under the following circumstances:
- Through a subsequent marriage. Section 31 of the Legitimacy Act presupposes that the subsequent marriage of the parents of an illegitimate person whether before or after the Act, shall if the father was or is at the date of the marriage domiciled in Nigeria renders that person if living legitimate, from the commencement of the Act or date of the marriage whichever last happens.
Besides, the child of an adulterous union may be legitimated by the subsequent marriage of his parents.
- By an acknowledgement – this consists of any act of the natural father of an illegitimate child by which he recognises and accepts the paternity of the child despite the fact that, the parents have never been married to each other.
Such acts or conducts must indicate acceptance of Paternity and can also be done formally or informally.
Some examples of such acts evidencing acknowledgement include: paying for the hospital bill of a child’s delivery; providing money for the upkeep of a child (including payment of school fees); calling a family meeting wherein the natural father of a child informs his family members that he is the father of the illegitimate child.
In the case of Akerele V Balogun (1964) L.L.R. 99 the performance of a naming ceremony of an illegitimate child by the natural father was held to be evidence of acknowledgement.
This system of acknowledgement is peculiar to the Yorubas.
In another case, Young V Young (1953) W.A.C.A. 19 the court held that a mere Baptismal Certificate being in the name of a person as the natural father cannot be sufficiently regarded as an admission of paternity.
It must be noted that only the natural father of an illegitimate child can legitimate him by acknowledgement, the mother cannot do so.
Legitimation by acknowledgement doesn’t have a general application under Customary Law but it is a matter of proof under any locality where it is said to apply.