|Marriage and other
equivalent or similar unions and status
|Validity of marriages|
|Dissolution of marriages|
|Private international law|
|The Family and the Criminal Code
(or Criminal Law)
In 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).)
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." 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 also 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."
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.
The Legitimacy Act 1926 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 to putative marriages which the parents incorrectly believed were valid. Neither the 1926 nor 1956 Acts changed the Law of Succession. 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.
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. Many other countries have abolished by legislation any legal disabilities of a child born out of wedlock.
Use of the term "illegitimate child" is now rare, even in legal contexts. Terms such as "extramarital 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.
Despite the decreasing legal relevance of illegitimacy, an important exception may be found in the nationality laws of many countries, which discriminate against illegitimate children in the application of jus sanguinis, particularly in cases where the child's connection to the country lies only through the father. This is true of the United States, and its constitutionality was upheld by the Supreme Court in Nguyen v. INS.
Legitimacy also continues to be relevant to hereditary titles, with only legitimate children being admitted to the line of succession. Some monarchs, however, such as Elizabeth I of England, have, by dint of special legislation, succeeded to the throne despite the controversial status of their legitimacy.
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:
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!
The proportion of children born outside marriage is rising in all EU 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 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.
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. 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. The percentage born extramaritally increased 21% during 2002–7, reaching 1,714,643 in 2007 (or nearly 4 in 10 U.S. births). 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. In 2007, teenagers accounted for just 23% of nonmarital births, down steeply from 50% in 1970.
In 2011, 39.5% of all births in the 27 EU countries were extramarital. In that year, births outside marriage represented a majority in Iceland (65.0%), Estonia (59.7%), Slovenia (56.8%), Bulgaria (56.1%), France (55.8%), Norway (55.0%), Sweden (54.3%), and Belgium (50%). The proportion of extramarital births is also approaching half in Denmark (49%), the United Kingdom (47.3%) and the Netherlands (45.3%). Other European countries with a high rate of extramarital births for the year 2011 are Latvia (44.6%), Hungary (42.3%), Czech Republic (41.8%), Finland (40.9%), Austria (40.4%), Luxembourg (34.1%), Slovakia (34.0%), Germany (33.5%). The lowest proportion of births outside marriage was found in Greece (7.4%) and Cyprus (16.9%).
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.
It is notable that traditionally-conservative Catholic countries now also have substantial proportions of extramarital births: e.g., Portugal, 45.6% (in 2012); Spain, 37.4% (in 2011); Ireland, 33.7% (in 2011); Italy, 23.4% (in 2011).
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.
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). In most countries in this traditionally Catholic region, children born outside marriage are now the norm. Even in the early 1990s, the phenomenon was very common: 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 other countries, they were the majority: in Argentina 52.7%, in Belize 58.1%, in El Salvador 73%, in Panama 80%.
Other traditionally Catholic countries have also been experiencing majority extramarital births: in 2007, Paraguay 70%, Dominican Republic 63%.
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%.
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.[which?] 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. 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.
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. 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.
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.
Historian John Ferling, in his book Jefferson and Hamilton: The Rivalry That Forged a Nation, makes the same point: that Alexander Hamilton's extramarital birth spurred him to seek accomplishment and distinction.
The Swedish artist Anders Zorn (1860–1920) was similarly motivated by his extramarital birth to prove himself and excel in his métier.
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." 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..." "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." 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]."
Illegitimacy has for centuries provided a motif and plot element to works of fiction by prominent authors, including William Shakespeare, Benjamin Franklin, Henry Fielding, Voltaire, Jane Austen, Alexandre Dumas, père, Nathaniel Hawthorne, Charles Dickens, Wilkie Collins, Anthony Trollope, Alexandre Dumas, fils, George Eliot, Leo Tolstoy, Ivan Turgenev, Fyodor Dostoyevsky, Thomas Hardy, C.S. Forester, Marcel Pagnol, Grace Metalious, John Irving and George R. R. Martin.
Notable people born outside of wedlock have included:
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