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Legitimacy (family law)

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Legitimacy (family law)

In Western common law, legitimacy is the status of a child born to parents who are legally married to each other; and of a child conceived before the parents receive a legal divorce. Conversely, illegitimacy (or bastardy) is the status of a child born outside marriage. The consequences of illegitimacy have pertained mainly to a child's rights of inheritance to the putative father's estate and the child's right to bear the father's surname or title. Illegitimacy has also had consequences for the mother's and child's right to support from the putative father. (See Affiliation (family law).) Today, births outside marriage represent a majority in a growing number of European[1] and most Latin American countries, but remain rare in Asia.


In medieval Wales, a "bastard" was defined simply as a child not acknowledged by its father. All children, whether born in or out of wedlock, that were acknowledged by the father enjoyed the same legal rights, including the right to share in the father's estate. After England's conquest of Wales, English law came to apply in Wales.

England's Statute of Merton (1235) stated, regarding illegitimacy: "He is a bastard that is born before the marriage of his parents."[2] 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 Law of 1576 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 (18 Elizabeth C. 3), 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."[3]

Under English law, a bastard was unable to be an heir to real property, in contrast to the situation under civil law, and could not be legitimized by the subsequent marriage of father to his mother. There was one exception: when his father subsequently married his mother, and an older illegitimate son (a "bastard eignè") 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 (a "mulier puisnè") would have no claim to the land.[4]

The Legitimacy Act 1926[5] of England and Wales legitimized 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 legitimization 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. The Family Law Reform Act 1969 (c. 46) allowed a bastard to inherit on the intestacy of his parents. In canon and in civil law, the offspring of putative marriages have also been considered legitimate.[6]

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.[7] Many other countries have abolished by legislation 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 (through Act no. 2002-305 of 4 March 2002, removing mention of "illegitimacy" — filiation légitime and filiation naturelle; and through law no. 2009-61 of 16 January 2009).[8][9][10] 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.[11]


Use of the term "illegitimate child" is now rare, even in legal contexts. It has been stricken from passports and legal documents as needlessly insulting and stigmatizing to the child. Terms such as "extra-marital child", "love child" and "child born out of wedlock" are more commonly used. Also used in Britain is "bastard", though expressions such as "natural child" are preferred in polite society.

While the British pejorative slang word "git" derives from "illegitimate", it is often used by people who do not know its source.

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 (nationality by citizenship of a parent) 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,[12] and its constitutionality was upheld in 2001 by the Supreme Court in Nguyen v. INS.[13]

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 of England succeeded to the throne though she was initially held illegitimate as a result of her parents' marriage having been annulled after her birth.

Annulment of marriage does not change the status of illegitimacy 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.

The Catholic Church is also changing its attitude toward unwed mothers and baptism of the children. In criticizing the priests who refused to baptize out-of-wedlock children, Pope Francis argued that the mothers had done the right thing by giving life to the child and should not be shunned by the church:[14][15][16]

In our ecclesiastical region there are priests who don't baptise the children of single mothers because they weren't conceived in the sanctity of marriage. These are today's hypocrites. Those who clericalise the church. Those who separate the people of God from salvation. And this poor girl who, rather than returning the child to sender, had the courage to carry it into the world, must wander from parish to parish so that it's baptised!

Extramarital births

Percentage of births to unmarried women, selected countries, 1980 and 2007.[17]

The proportion of children born outside marriage is rising in all EU countries,[18] North America, and Australia.[19] 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 live births outside marriage. In the EU, this phenomenon has been on the rise in recent years in almost every country; and in seven countries, mostly in northern Europe, it already accounts for the majority of live births.[20]

In 2009, 41% of children born in the United States were born to unmarried mothers (up from 5% a half century ago). That includes 73% of non-Hispanic black children, 53% of Hispanic children (of all races), and 29% of non-Hispanic white children.[21][22] 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.[23] Most births to teenagers in the USA (86% in 2007) are nonmarital; in 2007, 60% of births to women 20–24, and nearly one-third of births to women 25–29, were nonmarital.[17] In 2007, teenagers accounted for just 23% of nonmarital births, down steeply from 50% in 1970.[17]

In 2011, 39.5% of all births in the 27 EU countries were extramarital.[24] The majority of births occur outside of marriage (figures as of 2012,[24] except where otherwise stipulated) in the following European countries: Iceland (66.9%), Estonia (58.4%), Slovenia (58% - in 2013[25]), Bulgaria (57.4%), France (57.1% in 2013[26]), Norway (54.9%), Sweden (54.5%), Belgium (52.3%), and Denmark (50.6%).

The proportion of extramarital births is also approaching half in Portugal (47,6%) as of 2013,[27] the United Kingdom (47.6%), the Netherlands (46.6%) Latvia (45%) all 2012 numbers[24] and Czech Republic (45% in 2013).[28] Other European countries with a high rate of extramarital births for the year 2012 are Hungary (44.5%), Finland (41.5%), Austria (41.5%), Luxembourg (37.1%), Slovakia (35.4%), Germany (34.5%).[29] The lowest proportion of births outside marriage were found in Greece (7.6%), Croatia (15.4%), and Cyprus (18.6%).[24]

In the EU, the average percentage of extramarital births has risen steadily in recent years, from 27.4% in 2000 to 39.5% in 2011.[24]

It is notable that traditionally-conservative Catholic countries in the EU now also have substantial proportions of extramarital births: Portugal, 47,6% (as of 2013);[27] Spain, 35.5% ; Ireland, 35.1%; Italy, 28.0%, all numbers for the year 2012.[24]

To a certain degree, religion (the religiosity of the population - see Religion in Europe) correlates with the proportion of extramarital births (e.g., Greece, Cyprus, Croatia have a low percentage of births outside marriage), but this is not always the case: Portugal (47.6%[27]) and Romania (31%[24]) are among the most religious countries in Europe.

The percentage of first-born children born out of wedlock is considerably higher (by roughly 10%, for the EU), as marriage often takes place after the first baby has arrived. For example for the Czech Republic, whereas the total extramarital births are less than half (45%), the percentage of first-born outside marriage is more than half (55.7%)[30]

Latin America has the highest rates of non-marital childbearing in the world (55–74% of all children in this region are born to unmarried parents).[31] 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.[32][33][34] In Brazil, non-marital births increased to 65.8% in 2009, up from 56.2% in 2000.[35] In Chile, non-marital births increased to 70.7% in 2013, up from 48.3% in 2000.[36]

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%.[37]

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%; in Kyrgyzstan, 24%.[37] However, in the catholic Philippines, the out-of-the-wedlock birth rate was 37% in 2008-2009 .[38]


The Outcast, by Richard Redgrave, 1851. A patriarch casts his daughter and her illegitimate baby out of the family home.
Magdalene laundries were institutions that existed from the 18th to the late 20th centuries, throughout Europe and North America, where "fallen women", including unmarried mothers, were detained. Photo: Magdalene laundry in Ireland, ca. early twentieth century.[39]

Certainty of paternity has been considered important in a wide range of eras and cultures, especially when inheritance and citizenship were at stake, making the tracking of a man's estate and genealogy a central part of what defined a "legitimate" birth. The ancient Latin dictum, "Mater semper certa est" ("The mother is always certain", while the father is not) emphasized the dilemma.

In English common law, Justice Edward Coke in 1626 promulgated the "Four Seas Rule" (extra quatuor maria) asserting that, absent impossibility of the father being fertile, there was a presumption of paternity that a married woman's child was her husband's child. That presumption could be questioned, though courts generally sided with the presumption, thus expanding the range of the presumption to a Seven Seas Rule". But it was only with the Marriage Act 1753 that a formal and public marriage ceremony at civil law was required, whereas previously marriage had a safe haven if celebrated in an Anglican church. Still, many "clandestine" marriages occurred.

In many societies, people born out of wedlock did not have the same rights of inheritance as those within it, and in some societies, even the same civil rights. In the United Kingdom and the United States, as late as the 1960s and in certain social strata even up to today, extramarital birth has carried a social stigma.[40][41] In previous centuries unwed mothers were forced by social pressure to give their children up for adoption. In other cases extramarital children have been reared by grandparents or married relatives as the "sisters", "brothers" or "cousins" of the unwed mothers.[42]

In most national jurisdictions, the status of a child as a legitimate or illegitimate heir could be changed - in either direction - under the civil law: A legislative act could deprive a child of legitimacy (as in the cases of the sons of Edward IV of England); conversely, a marriage between the previously unmarried parents, usually within a specified time, such as a year, could retroactively legitimate a child's birth.

Fathers of illegitimate children often did not incur comparable censure or legal responsibility, due to social attitudes about sex, the nature of sexual reproduction, and the difficulty of determining paternity with certainty.

By the final third of the 20th century, in the United States, all the states had adopted uniform laws that codified the responsibility of both parents to provide support and care for a child, regardless of the parents' marital status, and gave extramarital as well as adopted persons equal rights to inherit their parents' property. In the early 1970s, a series of Supreme Court decisions abolished most, if not all, of the common-law disabilities of extramarital birth, as being violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution.[43] Generally speaking, in the United States, "illegitimacy" has been supplanted by the phrase "born out of wedlock."

A contribution to the decline of the concept of illegitimacy had been made by increased ease of obtaining divorce. Prior to this, the mother and father of many children had been unable to marry each other because one or the other was already legally bound, by civil or canon law, in a non-viable earlier marriage that did not admit of divorce. Their only recourse, often, had been to wait for the death of the earlier spouse(s). Thus Polish political and military leader Józef Piłsudski (1867–1935) was unable to marry his second wife, Aleksandra, until his first wife, Maria, died in 1921; by which time Piłsudski and Aleksandra had two out-of-wedlock daughters.[44]

Social implications

Extramarital birth has affected not only the individuals themselves. The stress that such circumstances of birth once regularly visited upon families, is illustrated in the case of Albert Einstein and his wife-to-be, Mileva Marić, who—when she became pregnant with the first of their three children, Lieserl—felt compelled to maintain separate domiciles in different cities.

Some persons of extramarital birth have been driven to excel in their endeavors, for good or ill, by a desire to overcome the social stigma and disadvantage that attached to it. Nora Titone, in her book My Thoughts Be Bloody, recounts how the shame and ambition of actor Junius Brutus Booth's two extramarital actor sons, Edwin Booth and John Wilkes Booth, spurred them to strive, as rivals, for achievement and acclaim—Edwin, a Unionist, and John Wilkes, the assassin of Abraham Lincoln.[45]

Historian Alexander Hamilton's extramarital birth spurred him to seek accomplishment and distinction.[46]

The Swedish artist Anders Zorn (1860–1920) was similarly motivated by his extramarital birth to prove himself and excel in his métier.[47]

Similarly, T. E. Lawrence's biographer Flora Armitage writes about his extramarital birth: "The effect on [T.E.] Lawrence of this discovery was profound; it added to the romantic urge for heroic conduct—the dream of the Sangreal—the seed of ambition, the desire for honor and distinction: the redemption of the blood from its taint."[40] Another biographer, John E. Mack, writes in a similar vein: "[H]is mother required of him that he redeem her fallen state by his own special achievements, by being a person of unusual value who accomplishes great deeds, preferably religious and ideally on an heroic scale. Lawrence did his best to fulfill heroic deeds. But he was plagued, especially after the events of the war activated his inner conflicts, by a deep sense of failure. Having been deceived as a child he was later to feel that he himself was a deceiver—that he had deceived the Arabs..."[48] "Mrs. Lawrence's original hope that her sons would provide her personal redemption by becoming Christian missionaries was fulfilled only by [Lawrence's brother] Robert."[49] Mack elaborates further: "Part of his creativity and originality lies in his 'irregularity,' in his capacity to remain outside conventional ways of thinking, a tendency which... derives, at least in part, from his illegitimacy. Lawrence's capacity for invention and his ability to see unusual or humorous relationships in familiar situations come also... from his illegitimacy. He was not limited to established or 'legitimate' solutions or ways of doing things, and thus his mind was open to a wider range of possibilities and opportunities. [At the same time] Lawrence's illegitimacy had important social consequences and placed limitations upon him, which rankled him deeply... At times he felt socially isolated when erstwhile friends shunned him upon learning of his background. Lawrence's delight in making fun of regular officers and other segments of 'regular' society... derived... at least in part from his inner view of his own irregular situation. His fickleness about names for himself [he changed his name twice to distance himself from his "Lawrence of Arabia" persona] is directly related... to his view of his parents and to his identification with them [his father had changed his name after running off with T.E. Lawrence's future mother]."[50]

Violence and honor killings

While births outside marriage are considered acceptable in many world regions, in some parts of the world, especially in conservative Muslim countries in the Middle East and South Asia, they remain highly stigmatized. Women who have given birth under such circumstances are often subjected to violence at the hands of their families; and may even become victims of so-called honor killings.[51][52][53] These women may also be prosecuted under laws forbidding sexual relations outside marriage and may face harsh punishments, including stoning.[54]

Causes for rise in extramarital births

Reasons that have been advanced for the increase in extramarital births include secularization of Western countries (notably in Europe and Latin America as the above statistics show), enhanced women's status and the fall of authoritarian political regimes.[55][56][57]

The past few decades have seen decreased marriage rates in most Western countries, and this decrease has been accompanied by increased emergence of non-traditional family forms. Average marriage rates across OECD countries have fallen from 8.1 marriages per 1,000 people in 1970 to 5.0 in 2009.[58]

Reasons cited for the declining marriage rates have included changes in social norms and lesser importance being attached by individuals to earlier norms. Research on the situation in Bulgaria[56] has concluded that

"[The rise in unmarried cohabitation] shows that for many people it is not of great importance [whether] their union is a legal marriage or [a] consensual union. This [indicates] clear changes in [people's] value orientations [...] and less social pressure for marriage."

In fiction

Illegitimacy has for centuries provided a motif and plot element to George R. R. Martin.

Notable people

Notable people born outside of wedlock have included:

  • Justin Bieber (b. 1994), Canadian actor, musician and singer-songwriter.

See also


  1. ^ As of 2012 children born outside marriage represented a majority in nine countries of Europe; the last countries to enter into this category are Belgium since 2011, and Denmark since 2012
  2. ^ Resources - 1788 - Before European Settlement.
  3. ^ Alan Macfarlane, "Illegitimacy and illegitimates in English history." (2002)
  4. ^ William Blackstone (1753), Commentaries on the Laws of England, Book II, Chapter XV "Of Title by Purchase and I. Escheat", Section 5.
  5. ^ Legitimacy Act 1926 (16 & 17 Geo. 5 c. 60)
  6. ^ New Advent
  7. ^ "US Supreme Court Cases from Justia & Oyez". Retrieved 19 July 2011. 
  8. ^
  9. ^
  10. ^
  11. ^ http://hudoc.echr.coe.ints/eng/pages/search.aspx?i=001-116716#{%22itemid%22:[%22001-116716%22]}
  12. ^ "Instructions for N-600, Application for Certificate of Citizenship". U.S. Citizenship and Immigration Services. Retrieved 1 October 2010. 
  13. ^ Tuan Anh Nguyen et al. v. Immigration and Naturalization Service, 533 U.S. 53 (2001).
  14. ^ The Guardian (13 March 2013). "Pope Francis on gay marriage, unmarried mothers … and journalists". London. 
  15. ^ Fox (13 March 2013). "Francis is first pope from the Americas". Fox News. 
  16. ^ ABC News. "Francis Becomes First Latin American Pope". 
  17. ^ a b c "Changing Patterns of Nonmarital Childbearing in the United States". CDC/National Center for Health Statistics. May 13, 2009. Retrieved September 24, 2011. 
  18. ^ Spatial Aspects of the Rise of Nonmarital Fertility across Europe since 1960 till 2007 ; insightfull maps on pages 47 & 48
  19. ^ "Share of births outside marriage and teenage births". OECD Directorate for Employment, Labour, and Social Affairs. Retrieved Oct 19, 2009. 
  20. ^ "Fertility Statistics". European Commission Eurostat: Your key to European Statistics. Retrieved Jan 20, 2010. 
  21. ^ "National Vital Statistics Reports, Volume 59, Number 3, December 21, 2010". 
  22. ^ "Our view on kids: When unwed births hit 41%, it's just not right". USA Today. 25 January 2011. 
  23. ^ Ravitz, Jessica (April 8, 2009). "Out-of-wedlock births hit record high". CNN. Retrieved Oct 19, 2009. 
  24. ^ a b c d e f g
  25. ^
  26. ^
  27. ^ a b c
  28. ^ Population Change in 2013
  29. ^ "Marriage and divorce statistics - Statistics Explained". Retrieved 2014-04-04. 
  30. ^ [1]
  31. ^ "Global Children’s Trends | The Sustainable Demographic Dividend". Retrieved 2013-02-11. 
  32. ^ "Births outside marriage". 
  33. ^
  34. ^ "Illegitimate Nation: An Examination of Out-of-Wedlock Births Among Immigrants and Natives". 
  35. ^
  36. ^
  37. ^ a b  
  38. ^ Global Children's Trends
  39. ^ Figure 9, Frances Finnegan, Do Penance or Perish, Congrave Press, 2001.
  40. ^ a b Flora Armitage, The Desert and the Stars: A Biography of Lawrence of Arabia, p. 42.
  41. ^ John E. Mack, A Prince of Our Disorder: The Life of T.E. Lawrence, pp. 28–29, 32.
  42. ^ On the 4 March 2011 Charlie Rose TV interview program, British Nobel laureate Paul Nurse told such a story of "shame": he was reared by his grandparents as the supposed younger brother of his now-deceased biological mother, and has never learned who his biological father was.
  43. ^ "Illigitimacy". Retrieved 2009-10-19. 
  44. ^ Andrzej Garlicki, "Piłsudski, Józef Klemens," Polski słownik biograficzny, vol. XXVI, 1981, pp. 320, 323.
  45. ^ Nora Titone. My Thoughts Be Bloody: The Bitter Rivalry Between Edwin and John Wilkes Booth That Led to an American Tragedy. New York: Simon and Schuster; 2010 [cited September 24, 2011]. ISBN 978-1-4165-8605-0.
  46. ^ Discussed by Ferling in a 9 October 2013 lecture on C-SPAN2 Book TV.
  47. ^ "Anders Zorn in the Gilded Age", PBS biography (Colorado Public Television), one hour, 2013.
  48. ^ John E. Mack, A Prince of Our Disorder: The Life of T.E. Lawrence, 1976, p. 28.
  49. ^ John E. Mack, A Prince of Our Disorder: The Life of T.E. Lawrence, 1976, p. 32.
  50. ^ John E. Mack, A Prince of Our Disorder: The Life of T.E. Lawrence, 1976, pp. 28–29.
  51. ^
  52. ^
  53. ^ "'"Turkey condemns 'honour killings. BBC News. 1 March 2004. 
  54. ^ "Nigeria stoning appeal adjourned". CNN. 3 June 2003. 
  55. ^
  56. ^ a b
  57. ^
  58. ^
  59. ^ Confucius: His Life and Thought, By Shigeki Kaizuka. 
  60. ^ "St. Vladimir the Great". Catholic Encyclopedia. 
  61. ^, Samuel C. Ramer, "The Traditional and the Modern in the Writings of Ivan Pnin," Slavic Review, vol. 34, no. 3 (Sept. 1975), pp. 539–59.
  62. ^ Nichols, Michelle (9 March 2011). "Forbes top 10 richest people in the world". Retrieved 2012-05-14. 


  • Flora Armitage, The Desert and the Stars: a Biography of Lawrence of Arabia, illustrated with photographs, New York, Henry Holt and Company, 1955.
  • Andrzej Garlicki, "Piłsudski, Józef Klemens," Polski słownik biograficzny, vol. XXVI, Wrocław, Polska Akademia Nauk, 1981, pp. 311–24.
  • Shirley Foster Hartley, Illegitimacy, University of California Press, 1975.
  • Alysa Levene, Thomas Nutt & Samantha Williams, eds. Illegitimacy in Britain, 1700–1920. Palgrave Macmillan; 2005 [cited 24 September 2011]. ISBN 978-1-4039-9065-5.
  • John E. Mack. A Prince of Our Disorder: The Life of T. E. Lawrence. Harvard University Press; 1998 [cited September 24, 2011]. ISBN 978-0-674-70494-7.
  • Jenny Teichman. Illegitimacy: an examination of bastardy. Cornell University Press; 1982 [cited September 24, 2011]. ISBN 978-0-8014-1491-6.
  • Nora Titone, My Thoughts Be Bloody: The Bitter Rivalry between Edwin and John Wilkes Booth that Led to an American Tragedy, New York, Simon and Schuster, 2010 [cited September 24, 2011], ISBN 978-1-4165-8605-0.
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