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 (or 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 when such a child has been differentiated from other children.
In Scots law, the terms natural son and natural daughter bear the same implications.
The importance of legitimacy has decreased considerably in Western countries with the increasing economic independence of women, the sexual revolution of the 1960s and 1970s, the fall of totalitarian regimes, and the declining influence of Christian churches on family life. Births outside marriage represent the majority in many countries of Western Europe and in many former European colonies. In many Western-derived cultures, stigma based on parents' marital status, and the use of the word "bastard", are now considered offensive.
History
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. 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 the 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, nonmarital birth has carried a social stigma. In previous centuries unwed mothers were forced by social pressure to give their children up for adoption. In other cases, nonmarital children have been reared by grandparents or married relatives as the "sisters", "brothers" or "cousins" of the unwed mothers.
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; 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 parent's marital status, and gave nonmarital 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 nonmarital birth, as being violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution. Generally speaking, in the United States, "illegitimacy" has been supplanted by the phrase "born out of wedlock."
In contrast, other jurisdictions (particularly western continental European countries) tend to favor social parentage over biological parentage. Here a man (not necessarily the biological father) may voluntarily recognize the child to be identified as the father, thus giving legitimacy to the child; the biological father does not have any special rights in this area. In France, a mother may refuse to recognize her own child (see anonymous birth).
A contribution to the decline of the concept of illegitimacy had been made by increased ease of obtaining a divorce. Before 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 this time, Piłsudski and Aleksandra had two out-of-wedlock daughters.
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