Legitimacy (family law)

In traditional Western common law, legitimacy referred to a child born to parents who were legally married, including a child conceived before the parents obtained a legal divorce. Illegitimacy, or bastardy, applied to a child born outside marriage—such a child was called a bastard, love child, natural child, or illegitimate. In Scots law, the terms natural son and natural daughter carried the same meaning. The significance of legitimacy has greatly declined in Western nations since the sexual revolution of the 1960s and 1970s, along with the waning influence of Christian churches on family and social life. A 2009 report from the Centers for Disease Control and Prevention noted that by 2007, a large share of births in Western countries occurred outside marriage.

Under English law, the Statute of Merton (1235) declared that a child born before its parents’ marriage was a bastard. This definition also covered cases where the parents could not marry, such as when one or both were already married or the relationship was incestuous. The Poor Act 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 (18 Elizabeth C. 3) ordered that bastards be supported by their putative fathers, though bastardy orders in quarter sessions predated this. If the father could be identified, he faced strong pressure to take responsibility and maintain the child.

In England, a bastard could not inherit real property and could not be legitimized by his parents’ later marriage. One exception existed: if an older illegitimate son (a “bastard eignè”) took possession of his father’s lands after death, he would pass the land to his own heirs, as if his possession had retroactively become true ownership. A younger non-bastard brother (a “mulier puisnè”) had no claim to that land. In Scotland, many “natural children” of the monarchy received positions that founded prominent families. In the 14th century, Robert II of Scotland gave one of his illegitimate sons estates in Bute, creating the Stewarts of Bute; similarly, 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’ subsequent marriage, provided they were free to marry at conception. The Legitimation (Scotland) Act 1968 extended this to children conceived when 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 illegitimacy status entirely, stating that no person governed by Scots law shall be illegitimate. In England and Wales, the Legitimacy Act 1926 legitimized a child if the parents later married, as long as neither had been married to someone else in the meantime. The Legitimacy Act 1959 extended this even if the parents had married others, and applied to putative marriages they incorrectly believed were valid. Neither act changed succession to the British throne or to peerage and baronetcy titles. In Scotland, children legitimated by later marriage have always been entitled to succeed to peerages and baronetcies, and the 1968 Act extended this right to children conceived when parents were not free to marry. The Family Law Reform Act 1969 allowed an illegitimate child to inherit on a parent’s intestacy. In canon and civil law, offspring of putative marriages were also 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 based on 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 US citizen, unless the child has been legitimized in the appropriate jurisdiction. Many other countries have legislatively abolished legal disabilities for children born out of wedlock. In France, legal reforms began in the 1970s, but full equality was achieved only in the 21st century—through Act no. 2002-305 of 4 March 2002, which removed references to “illegitimacy” (filiation légitime and filiation naturelle), and law no. 2009-61 of 16 January 2009. 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, such as Bulgaria, have constitutions decreeing that children born outside marriage have the same rights as those born inside marriage. The European Convention on the Legal Status of Children Born out of Wedlock came into force in 1978, requiring ratifying countries to provide legal protections for such children.