illegitimacy

illegitimacy, status of children begotten and born outside of wedlock. Many statutes either state, or are interpreted to mean, that usually a child born under a void marriage is not illegitimate if his parents clearly believed that they were legally married. Similarly, annulment of a marriage usually does not illegitimize the children.

The historical trend of legitimacy laws has been toward more humane treatment of illegitimate children. Under early Roman, Spanish, and English law, the inheritance rights of such children were curtailed. During the Middle Ages, European countries regarded illegitimate children as virtual outlaws.

Legitimacy lawsuits usually concern either a child’s inheritance or the matter of obtaining support payments from a father who refuses to acknowledge his paternity. Generally, legitimacy is presumed unless clearly contradicted. Evidence that the mother has a questionable reputation is insufficient to show lack of paternity.

The natural parents are usually given custody of their illegitimate offspring, the mother having priority. Formerly, fathers of illegitimate children had no obligation to support them, but many statutes have modified this. The mother’s husband usually has no obligation to provide support, unless the marriage occurred after the birth of the child.

An illegitimate child’s status may be changed by a legal action called legitimation, granting him all the rights of legitimate children—except that property or money already given to a naturally legitimate child cannot be transferred to a legitimated one who would otherwise have been entitled to part of it. In some places, legitimation automatically occurs if the parents subsequently marry, if the mother marries someone else, or if the father publicly acknowledges and supports the child. Many statutes authorize a court declaration of the legitimacy of the child. The modern trend is strongly toward legitimation.