AN APPRAISAL OF LEGITIMACY AND LEGITIMATION UNDER THE CAMEROONIAN FAMILY LAW
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This long essay is concerned with the concept of legitimacy, which is an important concept, as it determines the status of a child in relation to society.
This essay is therefore poised to giving a voice to illegitimate children in society, by examining the concept itself, and the discrimination which an illegitimate child is being faced with.
To begin, we talk about a general introduction of the work; it traces the origin of Illegitimacy which appearances can be seen in the Holy Bible and the Holy Qu’ran.
While chapter one talked about the concept of legitimacy under both customary and English law, Legitimization was specifically discussed in chapter two,
Chapter three discusses the effect of legitimation on an otherwise illegitimate child, which includes the rights and duties of the parents to a legitimized child, duties of a legitimized child to the parents.
Chapter four which is the concluding part of the work contains the findings of the work and includes the necessary recommendations.
The question of legitimacy and legitimation are principally connected with status. It is, therefore, important to determine the status of a child at any given moment as it has far-reaching legal consequences. A child may be born legitimate or acquire that status by subsequent legitimation.
A legitimate child is one regarded by law as a child born with full rights and it confers on the child certain rights against the man whom the law regards as his father and generally against the society, but the bastards like the prostitute, thief and the beggars belong to the motley crowd of disreputable social types which the society had generally resented but endured.
Legitimacy for lawyers is a concept whereby a couple’s child is entitled to full recognition as a family member and enjoys the legal right, which the status involves.
It implies that children born out of wedlock are referred to as illegitimate, as is generally believed that people are not supposed to have illegitimate children but when they do emergency machinery is put to operation to give the child a status, which is an interior one.
The position of the common law is that the incapacity of a bastard consists primarily in this, that he cannot be heir to anyone, neither can he have heirs but of his own body for being nullius follies, he is, therefore, likened to nobody and he has no ancestors from whom any inheritable blood can be derived.
The belief is that by regulating illegitimate children to the background and by denying them the filial rights enjoyed by legitimate children the society will be able to purge themselves of their existence which is usually not so. The basic ingredients to prove the legitimacy of a child is:
- There must exist a valid marriage between the parents of the child, customary, Islamic or statutory law marriage.
- The wife has to be the mother of the child in question
- The father is also presumed to be the husband of the mother of the child born during the subsistence of the marriage.
The above requirement must be fulfilled before a child will be said to be legitimate, the absence of which the child will be seen as illegitimate.
This is the obtainable position under the common law; the situation exposes illegitimate children to social and legal deprivations and also denies them the rights of a legitimate child which includes the right to succession, protection, maintenance, custody, amongst other related rights.
This actually informed the concept of legitimation, which aims at restoring rights that the illegitimate children have been wrongfully deprived of.
Children born or conceived when there is a valid and subsisting Marriage between their parents are referred to as legitimate children.
At Common Law, a child born out of wedlock is regarded as a fillius nullius , and had no protection by the Law on his legal relationship with either his father or mother.
It was assumed that such a legal relationship did not exist. Such a child was automatically cut off from succession rights and rights to inherit property. meaning a bastard, who has no legal relationship or is recognized neither with the father nor with any other relative.
He is therefore deprived of the right, which legitimate children possess. For instance, a child may be regarded as legitimate even though the natural parents are not married to each other and the person with respect to whom the child is legitimate is not the natural father.
As we can see, illegitimacy has both religious and cultural undertone with the attendant discrimination meted out on illegitimate children, which has not in any way solved the problem. Attempts, therefore, have been made to find a solution to it, which is legitimation, as we cannot throw away the baby.
As it is known, legitimacy and legitimation are principally connected with status, which determines the status of a child.
A legitimate child is one regarded by law as a child born with full rights and it confers on the child certain rights against the man whom the law regards as his father and generally against society.
Also, a child is also used to describe a natural person who is an offspring of another either by birth or adoption and also representatives from the moment of his birth until the attainment of the age of maturity.
Legitimacy, which is the status of being born in lawful marriage, the absence of which the child will be regarded as illegitimate with the resultant effect which will not be pleasant to the child as he will be deprived of the benefit that should he would have been entitled to if he was of legitimate birth.
It is important to give a voice to the illegitimate children in society in order to help safeguard their rights and privileges with a view to removing those discriminations, which they normally faced. The question around which this work is organized is thus: How does the concept of legitimacy and legitimization help in making an illegitimate child attain the status of a legitimate one?
The study focuses on the concept of legitimacy that is what it means to say a child is legitimate, illegitimacy, meaning what makes a child illegitimate and legitimation, which is the process of making an otherwise illegitimate child, attains the status of a legitimate one. The study, therefore, focuses on:
- Illegitimate children with the view to making them attain a legitimate status, through the instrumentality of the law.
- It will also focus itself on exposing the uncertainties in the legislative position.
- It will also examine the family law reform relating to legitimacy and legitimation.
- More so, the mode of legitimation will also be examined, this is due to the lack of uniformity in the modes of legitimation, which are not universally accepted by the common law, religion and customary law.
- Also, the modes as of today, which are inoperative and unenforceable, will also be looked into and solutions will be preferred in order to make it operative and enforceable.
- Furthermore, in spite of the avoidance of the word ‘illegitimate’ in the statute book, the status of a child born out of lawful wedlock has not changed.
All these issues and many more will be the focus of this study and it will be examined with a view to fashioning out lasting solutions to them since they pose themselves as problems.