Legitimacy (family law)
Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce.
Conversely, illegitimacy, also known as bastardy, has been the status of a child born outside marriage, such a child being known as a bastard, a love child, a natural child, or illegitimate. In Scots law, the terms natural son and natural daughter carry the same implications.
The importance of legitimacy has decreased substantially in Western countries since the sexual revolution of the 1960s and 1970s and the declining influence of Christian churches in family and social life.
A 2009 report from the Centers for Disease Control and Prevention indicated that in 2007 a substantial proportion of births in Western countries occurred outside marriage.
Law
's Statute of Merton stated, regarding illegitimacy: "He is a bastard that is born before the marriage of his parents." This definition also applied to situations when a child's parents could not marry, as when one or both were already married or when the relationship was incestuous.The Poor Act 1575 formed the basis of English bastardy law. Its purpose was to punish a bastard child's mother and putative father, and to relieve the parish from the cost of supporting mother and child. "By an act of 1576, it was ordered that bastards should be supported by their putative fathers, though bastardy orders in the quarter sessions date from before this date. If the genitor could be found, then he was put under very great pressure to accept responsibility and to maintain the child."
Under English law, a bastard could not inherit real property and could not be legitimized by the subsequent marriage of father to mother. There was one exception: when his father subsequently married his mother, and an older illegitimate son took possession of his father's lands after his death, he would pass the land on to his own heirs on his death, as if his possession of the land had been retroactively converted into true ownership. A younger non-bastard brother would have no claim to the land.
There were many "natural children" of Scotland's monarchy granted positions which founded prominent families. In the 14th century, Robert II of Scotland gifted one of his illegitimate sons estates in Bute, founding the Stewarts of Bute, and similarly a natural son of Robert III of Scotland was ancestral to the Shaw Stewarts of Greenock.
In Scots law an illegitimate child, a "natural son" or "natural daughter", would be legitimated by the subsequent marriage of his parents, provided they had been free to marry at the date of the conception. The Legitimation Act 1968 extended legitimation by the subsequent marriage of the parents to children conceived when their parents were not free to marry, but this was repealed in 2006 by the amendment of section 1 of the Law Reform Act 1986 which abolished the status of illegitimacy stating that " No person whose status is governed by Scots law shall be illegitimate...".
The Legitimacy Act 1926 of England and Wales legitimised the birth of a child if the parents subsequently married each other, provided that they had not been married to someone else in the meantime. The Legitimacy Act 1959 extended the legitimisation even if the parents had married others in the meantime and applied it to putative marriages which the parents incorrectly believed were valid. Neither the 1926 nor 1959 Acts changed the laws of succession to the British throne and succession to peerage and baronetcy titles. In Scotland children legitimated by the subsequent marriage of their parents have always been entitled to succeed to peerages and baronetcies and the Legitimation Act 1968 extended this right to children conceived when their parents were not free to marry. The Family Law Reform Act 1969 allowed an illegitimate child to inherit on the intestacy of his parents. In canon and in civil law, the offspring of putative marriages have also been considered legitimate.
Since December 2003 in England and Wales, April 2002 in Northern Ireland and May 2006 in Scotland, an unmarried father has parental responsibility if he is listed on the birth certificate.
In the United States, in the early 1970s a series of Supreme Court decisions held that most common-law disabilities imposed upon illegitimacy were invalid as violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Still, children born out of wedlock may not be eligible for certain federal benefits unless the child has been legitimized in the appropriate jurisdiction.
Many other countries have legislatively abolished any legal disabilities of a child born out of wedlock.
In France, legal reforms regarding illegitimacy began in the 1970s, but it was only in the 21st century that the principle of equality was fully upheld. In 2001, France was forced by the European Court of Human Rights to change several laws that were deemed discriminatory, and in 2013 the Court ruled that these changes must also be applied to children born before 2001.
In some countries, the family law itself explicitly states that there must be equality between the children born outside and inside marriage: in Bulgaria, for example, the Constitution of Bulgaria decrees that children born outside marriage have the same rights as those born inside marriage.
The European Convention on the Legal Status of Children Born out of Wedlock came into force in 1978. Countries which ratify it must ensure that children born outside marriage are provided with legal rights as stipulated in the text of this convention. The convention was ratified by the UK in 1981 and by Ireland in 1988.
In later years, the inheritance rights of many illegitimate children have improved, and changes of laws have allowed them to inherit properties. More recently, the laws of England have been changed to allow illegitimate children to inherit entailed property, over their legitimate brothers and sisters.
Contemporary situation
Despite the decreasing legal relevance of illegitimacy, an important exception may be found in the nationality laws of many countries, which do not apply jus sanguinis to children born out of wedlock, particularly in cases where the child's connection to the country lies only through the father. This is true, for example, of the United States, and its constitutionality was upheld in 2001 by the Supreme Court in Nguyen v. INS. In the UK, the policy was changed so that children born after 1 July 2006 could receive British citizenship from their father if their parents were unmarried at the time of the child's birth; illegitimate children born before this date cannot receive British citizenship through their father.Legitimacy also continues to be relevant to hereditary titles, with only legitimate children being admitted to the line of succession. Some monarchs, however, have succeeded to the throne despite the controversial status of their legitimacy. For example, Elizabeth I succeeded to the throne though she was legally held illegitimate as a result of her parents' marriage having been annulled after her birth. Her older half-sister Mary I had acceded to the throne before her in a similar circumstance: her parents' marriage had been annulled in order to allow her father to marry Elizabeth's mother.
Annulment of marriage does not currently change the status of legitimacy of children born to the couple during their putative marriage, i.e., between their marriage ceremony and the legal annulment of their marriage. For example, canon 1137 of the Roman Catholic Church's Code of Canon Law specifically affirms the legitimacy of a child born to a marriage that is declared null following the child's birth.
As of 1983, illegitimate children no longer need special dispensations to become priests in the Catholic Church.
The Catholic Church never held illegitimacy as an obstacle to baptism, even infant baptism. This stance was re affirmed by Pope Francis when he argued that the mothers had done the right thing by giving life to the child and should not be shunned by the church:
Nonmarital births
The proportion of children born outside marriage has been rising since the turn of the 21st century in most European Union countries, North America, and Australia. In Europe, besides the low levels of fertility rates and the delay of motherhood, another factor that now characterizes fertility is the growing percentage of births outside marriage. In the EU, this phenomenon has been on the rise in recent years in almost every country; and in eight EU countries, mostly in northern Europe, as well as in Iceland outside of the EU, it already accounts for the majority of births.In 2009, 41% of children born in the United States were born to unmarried mothers, a significant increase from the 5% of half a century earlier. That includes 73% of non-Hispanic black children, 53% of Hispanic children, and 29% of non-Hispanic white children. In 2020, the proportion was almost similar, with 40.5% of children born in the United States being born to unmarried mothers.
In April 2009, the National Center for Health Statistics announced that nearly 40 percent of American infants born in 2007 were born to an unwed mother; that of 4.3 million children, 1.7 million were born to unmarried parents, a 25 percent increase from 2002. Most births to teenagers in the United States are nonmarital; in 2007, 60% of births to women 20–24, and nearly one-third of births to women 25–29, were nonmarital. In 2007, teenagers accounted for just 23% of non-marital births, down steeply from 50% in 1970.
In 2014, 42% of all births in the 28 EU countries were nonmarital. The percentage was also 42% in 2018. In 2018, births outside of marriage represented the majority of births in eight EU member states: France, Bulgaria, Slovenia, Portugal, Sweden, Denmark and Estonia, and the Netherlands. The lowest percentage were in Greece, Cyprus, Croatia, Poland and Lithuania, with a percentage of under 30%.
To a certain degree, religion correlates with the proportion of non-marital births, but this is not always the case: Portugal is among the most religious countries in Europe.
The proportion of non-marital births is also approaching half in the Czech Republic, the United Kingdom and Hungary.
The prevalence of births to unmarried women varies not only between different countries, but also between different geographical areas of the same country: for example, in Germany, there are very strong differences between the regions of former West Germany and East Germany with a non-religious majority. Significantly more children are born out of wedlock in eastern Germany than in western Germany. In 2012, in eastern Germany 61.6% of births were to unmarried women, while in western Germany only 28.4% were. In the UK, in 2014, 59.4% of births were non-marital in North East of England, 58.9% in Wales, 54.2% in North West England, 52.4% in Yorkshire and the Humber, 52% in East Midlands, 50.8% in Scotland, 50.4% in West Midlands, 48.5% in South West England, 45.5% in East of England, 43.2% in Northern Ireland, 42.9% in South East England, and 35.7% in London.
In France, in 2012, 66.9% of births were non-marital in Poitou-Charentes, while only 46.6% were in Ile-de-France. One of the reasons for the lower prevalence of non-marital births in the metropolis is the high number of immigrants from conservative world regions. In Canada, in Quebec, the majority of births since 1995 onwards have been outside marriage. As of 2015, 63% of births were outside marriage in Quebec.
Traditionally conservative Catholic countries in the EU now also have substantial proportions of non-marital births, as of 2016 : Portugal, Spain, Austria, Luxembourg Slovakia, Ireland, Malta
The percentage of first-born children born out of wedlock is considerably higher, as marriage often takes place after the first baby has arrived. For example, for the Czech Republic, whereas the total nonmarital births are less than half, 47.7%, the percentage of first-born outside marriage is more than half, 58.2%.
In Australia, in 1971, only 7% of births were outside of marriage, compared to 36% in 2020. The proportion of births outside of marriage was the highest in the Northern Territory and the lowest in the ACT.
Latin America has the highest rates of non-marital childbearing in the world. In most countries in this traditionally Catholic region, children born outside marriage are now the norm. Recent figures from Latin America show non-marital births to be 74% in Colombia, 70% in Paraguay, 69% in Peru, 63% in the Dominican Republic, 58% in Argentina, 55% in Mexico. In Brazil, non-marital births increased to 65.8% in 2009, up from 56.2% in 2000. In Chile, non-marital births increased to 70.7% in 2013, up from 48.3% in 2000.
Even in the early 1990s, the phenomenon was very common in Latin America. For example, in 1993, out-of-wedlock births in Mexico were 41.5%, in Chile 43.6%, in Puerto Rico 45.8%, in Costa Rica 48.2%, in Argentina 52.7%, in Belize 58.1%, in El Salvador 73%, in Suriname 66%, and in Panama 80%.
Out-of-wedlock births are less common in Asia: in 1993 the rate in Japan was 1.4%; in Israel, 3.1%; in China, 5.6%; in Uzbekistan, 6.4%; in Kazakhstan, 21%; and in Kyrgyzstan, 24%. However, in the Philippines, the out-of-wedlock birth rate was 37% in 2008–2009, rising dramatically to 52.1% by 2015.