A Critical Appraisal Of Legitimacy And Legitimation Under Nigerian Family Law

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A Critical Appraisal Of Legitimacy And Legitimation Under Nigerian Family Law


Abstract


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 the society, while a legitimate child is conferred with the rights and duties of a legitimate child, which includes right to maintenance, succession among other rights, an illegitimate child is denied of these right by virtue of the fact of his illegitimate birth and he remain so, until and unless he is legitimated either by the subsequent marriage of the parents, or by acknowledgement of paternity by the father, the absence of which the child will be regarded as an illegitimate child, with the resultant social discrimination that will be melted out on him by members of the larger society.

This essay is therefore poised to giving a voice to illegitimate children in the society, by examining the concept itself, and the discrimation which an illegitimate child is being faced with; it examines the ways of legitimating an illegitimate child, in order to remove the discrimination, so that he will be accorded with the same status as a legitimate child.

Chapter one gives 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,and which also dates back to our traditional societies, where an illegitimate child is seen more or less like a social outcast, and is treated like the child of nobody, it also discusses all the variables necessary to fully appreciate the concept, while chapter two talked about the concept of legitimacy under both customary and English law, it discusses the importance of a legitimate status, it also discusses illegitimacy, and the need to legitimize an illegitimate child, in other to remove the social stigma attached to that status.

legitimization was specifically discussed in chapter three, which can either be by the subsequent marriage of the parents of the child which can either be by statutory law, or by customary law, and the necessary conditions which must be met, Acknowledgement of paternity as a means of legitimation was also discussed with the condition precedent before a child will be said to have been acknowledged by the father

Chapter four discusses the effect of legitimation on an otherwise illegitimate child, which includes the rights and the duties of a legitimized child to the parents and the rights and duties of the parents to a legitimated child as when there is a right there must be a corresponding duty. Chapter five which is the concluding part of the work contains the findings of the work and includes the necessary recommendations.


Chapter Five


General Conclusion

5.1.0: Conclusion

The concept of legitimacy, illegitimacy, and legitimation which are the primary concern of this work, has been fully discussed, the importance of a legitimate status can be clearly seen in the area of succession, and it is also evident from the social stigma melted on the illegitimate child by both the society and religious bodies and institutions. Having discussed the concept of legitimacy itself which refers to the status of a child born in lawful wedlock, that is ,during the subsistence of a valid marriage, the opposite being illegitimate, with the attendant social discrimination melted out on them, for which succour has been made, by providing for ways and means of legitimating an illegitimate child which includes the subsequent marriage of his parents which can either be statutory or customary, and under some system of customary law, by the acknowledgement of paternity by the natural father, which ultimately accords the child a legitimate status, by virtue of which the child becomes entitled to the benefits he was otherwise deprived of, and also liable to perform his duties as a child.

The effect of legitimation has also been fully discussed, which sole aim is to the effect that the legitimated child, be made to enjoy the rights which legitimate children are entitled to as of right, such rights are contained in the various Acts which has been enacted to safeguard and protect the interest of children world over, example includes the child right Act, amongst other right, and to make them subject to the duties of a legitimated child so as not to make them pay for the sins the sins they know nothing about as there are no illegitimate children but illegitimate parents.


5.2.0: Recommendations

This is pertinent, as it will help in the area of reform on the law relating to legitimacy, in other to relief the burden placed on illegitimate children who are in no way responsible for their situation, the laws which needs to be reviewed are the legitimacy Act, the 1999 constitution, and some customary law and practise

The recommendation includes

  1. The legitimacy act, which is the sole means of legitimation now is unobtainable as a result of the conditions that must be met before this is done, the conditions include the fact that the parents must be subsequently married, the father must be domiciled in Nigeria, the child must be alive as at the date of legitimation. In a case where one of the parents is married to another person under statutory law, will they now have to be divorced in other to legitimate their illegitimate child, against the background of the fact that it is unhealthy for the society and the marriage institution itself. The provisions of the act needs to be broaden to encompass other means of legitimation which includes, making provisions for such a child in a will, formal acknowledgement, filling the birth certificate in the father’s name, agreement to maintain the child.
  2. The provision that the date of legitimation should start counting from the date of legitimation is unfair, the act should be amended to make it start counting from the date of birth, so that in the distribution of estate, the actual ages of the children, including the legitimated child should be the criteria to be used in the distribution of the estate of the parents
  3. The constitution should be amended to include a new section which will expressly provide that no child should be discriminated upon by the virtue of the fact that he was born illegitimate. The new section should make provision for a specific penalty, when its provisions are violated.
  4. Under some system of customary law, where acknowledge of paternity by the natural father is provided for, which says that only the natural father of the child has the right to claim paternity of the child, and that no one else can do it on his behalf while he is still alive, provisions should be made, which will allow some relatives acknowledge the paternity such a child in the case where the man dies before acknowledging the paternity of his child, this of course is aimed at protecting the rights and interest of the child, so that he is not made to pay for the sins of his parents.
  5. Awareness programmes mainly for teenagers and the youth should be organised to inform them about the dangers and consequences of pre-marital sex,and extra-marital sex, which of course are the major contributing factor to the problem at hand, in other to rid our society of illegitimate children.
  6. Parents and guardians should not only show their children enough love and Care, they should also bring up their children in the way of the lord, by inculcating in them good morals and teachings to help them withstand the pressure of pre-marital Sex
  7. Religious organizations are not also left behind, as their job is to teach their followers the need to have the fear of God, and to keep his commandment, and to abstain from pre-marital sex which is a sin against themselves.
  8. Also, the role of religious leaders cannot be over emphasized, as they can help ensure that the acknowledgement of paternity becomes a nationwide principle by modifying their beliefs, customs and usuages, by adopting the Yoruba customary law principle of acknowledgement, which has gone a long way in addressing the problem of
    illegitimacy.
  9. Legitimation laws should be amended to make provisions under Islamic and statutory law, by making provision in the form of declaration or proclamation in the registry by the natural father of the child as practised in developed countries.
  10. The use of contraceptives should be encouraged among teenagers and youth, as we know that sexual pervasiveness is very high in this country, and no amount of admonishing will prevent some of them from doing what they want to do, in order not to further compound the problem, the use of contraceptives is advised in order to prevent unwanted pregnancies, which result are illegitimate children.

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