Legitimacy (family law)

In traditional Western common law, a child was considered legitimate if born to parents who were legally married, or if conceived before their divorce was finalized. A child born outside of marriage was labeled illegitimate, or a bastard, and could also be called a love child, natural child, or, in Scots law, a natural son or daughter. Since the sexual revolution of the 1960s and 1970s and the waning influence of Christian churches on family life, the significance of legitimacy has greatly diminished in Western nations. A 2009 report from the Centers for Disease Control and Prevention noted that by 2007, a large share of births in these countries occurred outside of marriage.

England’s Statute of Merton from 1235 defined a bastard as a child born before the parents’ marriage. This also applied when the parents could not marry—for instance, if one or both were already wed or if the relationship was incestuous. The Poor Act of 1575 shaped English bastardy law, aiming to punish the mother and the alleged father while sparing the parish the cost of supporting them. A 1576 act ordered that bastards be supported by their putative fathers, who faced strong pressure to take responsibility and maintain the child. Under English law, a bastard could not inherit real property and could not be made legitimate by the parents’ later marriage, with one exception: if an older illegitimate son (a “bastard eignè”) took possession of his father’s lands after his death, he could pass the land to his own heirs, as if his ownership had been retroactively validated. A younger legitimate brother (a “mulier puisnè”) had no claim to that land.

In Scotland, many “natural children” of the monarchy were granted positions that founded prominent families. For example, in the 14th century, Robert II gave one of his illegitimate sons estates in Bute, starting the Stewarts of Bute, and a natural son of Robert III was ancestor to the Shaw Stewarts of Greenock. Scots law originally allowed an illegitimate child—a “natural son” or “natural daughter”—to be legitimated by the parents’ later marriage, provided they were free to marry at the time of conception. The Legitimation (Scotland) Act 1968 extended this to children conceived when the parents were not free to marry, but this was repealed in 2006 by an amendment to the Law Reform (Parent and Child) (Scotland) Act 1986, which abolished the status of illegitimacy entirely. England and Wales’s Legitimacy Act of 1926 allowed legitimation if the parents later married, as long as neither had been married to someone else in the meantime. The Legitimacy Act of 1959 extended this even if the parents had married others, and applied it to putative marriages they incorrectly believed were valid. Neither act changed succession laws for the British throne, peerages, or baronetcies. In Scotland, children legitimated by later marriage have always been able to inherit peerages and baronetcies, and the 1968 act extended this to children conceived when parents were not free to marry. The Family Law Reform Act of 1969 allowed an illegitimate child to inherit from a parent who died without a will. In canon and civil law, children of putative marriages have also been considered legitimate. Since December 2003 in England and Wales, April 2002 in Northern Ireland, and May 2006 in Scotland, an unmarried father gains parental responsibility if listed on the birth certificate.

In the United States, a series of Supreme Court decisions in the early 1970s ruled that most common-law disabilities tied to illegitimacy violated the Equal Protection Clause of the Fourteenth Amendment. Still, children born out of wedlock may not qualify for certain federal benefits, such as automatic naturalization when the father becomes a U.S. citizen, unless the child has been legitimized in the appropriate jurisdiction. Many other countries have legislatively removed all legal disabilities for children born outside marriage. In France, legal reforms began in the 1970s, but full equality was only achieved in the 21st century through acts in 2002 and 2009 that removed references to “illegitimacy.” In 2001, the European Court of Human Rights forced France to change several discriminatory laws, and in 2013 the Court ruled these changes must apply to children born before 2001. Some countries, like Bulgaria, explicitly state in their constitution that children born outside and inside marriage have equal rights. The European Convention on the Legal Status of Children Born out of Wedlock took effect in 1978, requiring ratifying countries to provide legal protections for such children.