Under the Law of Inheritance, Legitimacy and Legitimisation is connected with status of the successor of the deceased.
The status of the successor of the deceased. The status acquired by a person who is born in lawful wedlock is known as Legitimacy. Lawful wedlock includes, marriage under the Act, as well as customary law, which also include, Islamic marriage. Any child born during the subsistence of either of these aforementioned marriage is legitimate.
Legitimisation is the process by which a child who has not been legitimate acquires legitimate status. This status can be acquired by the subsequent statutory marriage of the parents of the illegitimate child or through the process of acknowledgement by his putative father under Customary Law. The legal effect of acknowledgement was aptly described by Cole J. in Taylor v Taylor (1960) LLR 286, where he held that “the acknowledgement of paternity by the father IPSO facto legitimises the children and there could not for the purposes of succession be different degrees of legitimacy.
In Cole v Akinyele (1960) SCNR 193, the deceased who was married under the Act, had an affair with another woman during the subsistence of the statutory marriage, while the other child was conceived during the marriage but born shortly after the death of the wife of the statutory marriage. The issue before the court was whether the two children could be regarded as legitimate children of the deceased as a result of acknowledgement of their paternity by the deceased. For the child born during the subsistence of the statutory marriage, the court held that it was contrary to public policy to allow the father legitimise that child by any other method, other than the procedure by the legitimacy ordinance. In other words, the child cannot be legitimated by a subsequent customary marriage but by marriage under the statute.
In Lawal v Younan (1961) 1 ALL N.L.R. 254. It was held that if a child is born within 280 days after his parents have obtained a decree absolute, the presumption of legitimacy will still apply to the child. Under Islamic law, a child is presumed to be legitimate once he is conceived during the subsistence of the marriage. It is immaterial whether the child is born after the marriage has been dissolved.
Also in some custom, a man who has no male child can ask one of his daughters to stay behind and not marry, for the purpose of producing a male child, who will succeed her father, saving the father’s name from extinction. Note that the male child produced in that circumstance, has full rights of succession to the grand father’s land and title. Similarly, a barren wife may in a bid to fulfill her marital obligation of bearing children for her husband, marry another wife for the husband. Which means providing the bride price for the marriage. Children of such marriage to the other wife will be regarded as legitimate children of the husband. It is evident that under customary law, a child maybe regarded as legitimate, even if the mother never acquired a status of a lawful wife.
The concept of Legitimacy is very important in Nigeria because of the social stigma that is associated with illegitimacy.
Nkechi Bright Ewere