GLUP2123 FAMILY LAW II

TOPIC - LEGITIMACY OF CHILDREN

LEGITIMACY OF CHILDREN UNDER
CIVIL LAW
• Legitimacy
• Legitimation
LEGITIMACY
 Common Law principles

 At Common Law, According to Blackstone’s Commentaries on the

Laws of England “a child is legitimate only if his parent were
lawfully married either -
 at the time of his conception, even if the marriage had ended by death or divorce
before his death, or
 at the time of the child’s birth although he was conceived before his parents were
married.”
 the Common Law adopted the Civil Law maxim “ Pate rest quem
nuptiac demonstrant,
 i.e. the presumption that if a child is born to a married woman her husband is
deemed to be its father until the contrary is proved.
 PRESUMPTION OF LEGITIMACY

 Malaysian position
 The common law position on the legitimacy of children is applicable in Malaysia
through section 112 of Evidence Act 1950.
 Under s 112 of the Evidence Act 1950, there is a strong presumption that the subject
child is the legitimate child of the husband of the woman for the reason that at the
material time of the birth, there subsisted a valid marriage between them.
 General rule (2 limbs) – a child is legitimate if -
 Born during the continuance of a valid marriage between his mother and any man,
or
 Within 280 days after the dissolution, the mother remained unmarried;
 Exception – That the parties had no access to each other at any time.
 ‘Access’ means opportunity. Access and non-access connote existence and non
existence of opportunities for having sexual intercourse.
 EVIDENCE ACT 1950
 Burden of proof
 The BOP that the divorce of the P’s mother took place before conception lies on the D. If the D is
unable to show that fact, a strong presumption in favour of the P arises
 The burden of showing that the parties to a marriage had no access to each other is on the person
who challenges its legitimacy.
 How to rebut legitimacy presumption under Section 112 Evidence Act? It can be rebutted if both
parties to the marriage had no access to each other at any time when the child could have been
begotten
 Element of Non-access may be proved if:
 the parties are physically separated, as in the case when the husband or wife has to leave for abroad or
stays apart from the other spouse because of employment or other reasons, or
 the husband is proved to be impotent or incapacitated at the relevant point of time.
 Ng Chian Perng v Ng Ho Peng [1998] 2 CLJ Supp - The fact that the women may have sexual
intercourse with some other persons during the subsistence of her valid marriage with her H does
not rebut the presumption that the child remains the legitimate child of the H.
 Resemblance features as evidence of
paternity

 A situation may arise where a child is born during a marriage but the child has
physical features which do not reflect those of his parents.-
 Ah Chuck v Needham[1931] NZLR 559 -Issue: can the father deny that child is his /
whether the child was legitimate?
 As it was not been disputed that at or about the time the child was conceived, H and W
had opportunities of access, the child was therefore born during the subsistence of the
marriage and on the face of it , was legitimate. As a consequences, the presumption that
the child was legitimate and that H was his father.
 Blood test / DNA test

 They were used by the Malaysian court in the case of Lau Zhan
Chen(an infant by mother and next friend Lau Fatt Wan) v Makoto
Togase & 2 ors [1995] 1 CLJ 841 to establish the paternity of a child -
the court accepted the evidence on blood tests and granted the
declaration of legitimacy to the petitioner.

 In Othman Haji Abdul Halim v Hamisah Awang [1994]3 CLJ 78,

allowed the parties to adduce DNA as evidence .. i.e. the DNA
profiling analysis report could be admitted as evidence when issue of
legitimacy arise.
Status of Children of void and voidable marriages

 Void marriage
 Under Common Law, children of void marriage are illegitimate as such marriages
are void ab initio.
 Under Malaysian Law, the child of the void marriage shall be treated as the
legitimate child of his parent if at the time of the solemnization of the marriage,
both or either parties reasonably believed that the marriage was valid and the
father of the child was domiciled in Malaysia at the time of marriage.
 Voidable marriage
 Position at Common law - the marriages becomes void from the date is
solemnized. If there are children born during that marriage, those children will
become illegitimate. refer Dredge v Dredge [1947].
 Position in Malaysia -The effect differs from the Common Law. Refer Section
75(1) LRA
LEGITIMATION
 Legitimation

 A method to legitimate the illegitimate children. An illegitimate child

may be legitimated either by statute or by procedure
 “Legitimacy is a question of status. This status of legitimacy can be
obtained by being born legitimate or by being legitimated by virtue of
the provision of the Act….”
 Method of legitimation -In Malaysia, there are three ways in which
legitimation of children may be possible. They are in accordance with:
 Section 4 Legitimacy Act 1961
 Section 9 of Adoption Act 1952
 Section 75 of Law Reform (Marriage and Divorce) Act 1976
Legitimacy Act 1961

 This Act provides for the legitimation of children born out of wedlock. It applies
to Peninsular Malaysia - 23 /3/61 and to Sabah and Sarawak - 23/3/61.
 These dates come within the definition of the term ‘prescribed date’ provided in
the Act. The dates of those enactment took effect also come within the definition
of the term ‘prescribed date’.
 Section 2(1) Legitimacy Act 1961 has defined "prescribed date" to means -
 Perak, Selangor, Negeri Sembilan and Pahang -1/1/1933;
 Johore, Malacca and Penang, - 1/7/ 1936;
 Kedah, Kelantan, Terengganu and Perlis – 23/3/1961
 Sabah and Sarawak-1/1/1972
 Legitimation by subsequent marriage of parents. –s.4 LA- Legitimation will takes
effect either from the prescribed date or the date of marriage, whichever is the later.
 Example: if the facts of the case took place in Sabah and the child’s parent married
on 3 May 1980, assuming that all other requirements are satisfied, the child will be
legitimated from the date of marriage that is 3/5/80 as the date is later than the
prescribed date for Sabah i.e. 1/1/72.
 the marriage leading to the legitimation must be solemnised and registered in
accordance with -
 (a) the Civil Marriage Ordinance 1952 (44/52), or the Christian Marriage Ordinance
1956 (33/56);
 (b) the Christian Marriage Ordinance (Cap. 24) or the Marriage Ordinance 1959
(14/59), of Sabah; or
 (c) the Church and Civil Marriage Ordinance of Sarawak (Cap. 92),
 or any Enactment or Ordinance repealed by any of the said Ordinances.
 Adoption Act 1952
 Section 9 of the Adoption Act provides that
 upon an order being made by the court, all rights, duties, obligations and
liabilities of the parent/s, guardian/s of the adopted child,

 in relation to the future custody, maintenance and education of the adopted

child including all rights to appoint a guardian or to consent or give notice of
dissent to marriage shall be extinguished.

 All such rights, duties, obligations and liabilities shall vest in and be
exercisable by and enforceable against the adopter as though the adopted child
was a child born to the adopter in lawful wedlock.
Law Reform (Marriage and Divorce) Act
1976
 This is where the legitimizing process is provided by statute.
 Section 75(1) provides that a child of a voidable marriage shall be deemed to be
born legitimate and,
 subsection (2) provides that a child of a void marriage shall be deemed to be born
legitimate if at the time of the marriage one or both parties reasonably believed
that the marriage was valid and the father of the child was domiciled in Malaysia
at the time of the marriage.
LEGITIMACY OF CHILDREN UNDER
ISLAMIC LAW
Introduction

 Under Islamic law, the paternity of a child is very important to establish their
legal rights and legitimacy.
 Paternity and legitimacy are closely related. Once the parentage of a child can be
established, the legitimacy of a child will follows.
 From Islamic law, the legitimacy of parentage depends upon the matrimonial
relationship of the H and W being in accordance with Islamic law.
 “it is Allah who created man from water; then Allah established relationship of
lineage and marriage…” - Al-Furqan : 54
 Methods Of Proving Paternity

 Paternity can be establish by marriage (firash), or testimony of eye

witnesses (shahadah), or admission (iqrar).
 In case of dispute, Procedural law of Islam identifies the following
methods by which the issue can be disposed judicially;
1. The existence of licit termed as (firash)
2. Claiming the paternity of a child (istilhaq)
3. Eye witnesses’ testimony
4. Physiognomy (qiyafah)
5. Lot casting (qur’ah)
6. Lian for negating paternity
DNA test

 Issue: DNA test of paternity? DNA test for proving paternity.

 Majority views: oppose - Reasons: criterion to determine paternity is a matter
within the province of Shariah and not science.
 Minority views: support - Method of proof in islamic law partaking in the
domain of secular means and not a matter of rituals are not restricted to
traditional methods of proof and evidence but extendible to include other
emerging sure means of dis overing facts such as scientific evidences like
DNA test of paternity.
The presumption of legitimacy

 Islamic law precisely recognizes the minimum duration of

conception since it is the date of the conception that governs, and not
the date of birth.
 The Arabic maxim ‘al walad lil- firash’ that means ‘a child belongs
to the marriage bed’ explains the importance of knowing that
consummation of a marriage is presumed to be after the marriage
contract.
 In establishing legitimacy, 2 points must be kept in view:
 By clear evidence of a married woman’s pregnancy
 The acknowledgements by her H proving the status of that child.
Paternity through marriage

 A child born within a subsisting legal marriage after at least 6 months of

pregnancy is deemed to be legitimate
 ‘we have enjoined on man kindness to his parents, in pain did his mother bear
him and in pain did she give him birth. The carrying of the child to his weaning is
a period of 30 months”. (Al-Ahqaf :15) and
 ‘we have enjoined on man (to be good) to his parents, in travail did his mother
bear him, and in years twain was his weaning.’ (al-Luqman:14)
 Refer to – S.110 IFLA
 Salim v Masiah [1976] 2 JH 296- the couple were married on 6.10.1968 and a
child was born on 2.6.1969. Salim claimed that his wife had already pregnant
before they solemnized their marriage. The court held that the child is legitimate.
 Hj Ghazali v Azmah [1977] 1 JH 81 -the couple solemnized their marriage on
7.11.1974 and blessed with a child on 11.8.1975. H claimed that the child is not his
legitimate child. Court held that a child born within a valid marriage is legitimate.
 Wan Azmi v Nik Salwani [1990] 9 JH 192- a child born after 8 months of
marriage is legitimate.
 Ismail v Kalam (1995) 10 JH 41- W had been divorced on 28.9.1985 but given
birth to a child on 23.9.1989. The child is not the child of her ex-husband as the
time of delivery of the baby is more than 4 years.
 Acknowledgment of legitimacy

 Acknowledgement is an affirmation of legitimacy based on an implied admission of

the existence of a marriage, i.e., between the person who acknowledges and the
child’s mother at the time of conception.
 In theory, it is not the process of legitimation but a formal recognition of a status of
legality which exists. In fact, where legal presumption of legitimacy does not apply, it
establishes to that effect.
 S.119 IFLA- Acknowledgment irrevocable - Once an acknowledgment or confirmation
has been made in respect of paternity or relationship, the acknowledgment or confirmation
shall become irrevocable.
 Types of acknowledgement –
 Acknowledgment of Paternity
 Acknowledgment of Maternity
 Acknowledgement of a Child
 Acknowledgment of paternity
 Only a father alone has the right to establish legal paternal relationship admitting that a child as
lawfully his child, although in normal situation, no specific acknowledgment is required. -
s.114 IFLA
 The condition:
 the paternity of the child is not established in any one else;
 the ages of the man and the child are such that filial relationship is possible between them;
 the man and the mother of the child could have been lawfully joined in marriage at the time of
conception;
 the acknowledgment is not merely that he or she is his son, but that the child is his legitimate son;
 the man is competent to make a contract;
 the acknowledgment is with the distinct intention of conferring the status of legitimacy;
 the acknowledgment is definite and the child is acknowledged to be the child of his body.
Syubhah intercourse?

 Where a man has syubhah sexual intercourse with a woman, and she is
subsequently delivered of a child between the period of six qamariah months to
four qamariah years after the intercourse, the paternity of the child shall be
ascribed to the man - s113.IFLA
 Refer Ismail v Aris Fadilah P1980) 5 JH 326
 Hussin v Saayah (1980) 7 JH 35
Rebutting the presumption of acknowledgment

 S.115 IFLA - The presumption of paternity arising from

acknowledgment may only be rebutted by-
 (a) disclaimer on the part of the person acknowledged;
 (b) proof of such proximity of age, or seniority of the acknowledge, as would
render the alleged relationship physically impossible;
 (c) proof that the acknowledgee is in fact the child of some other person; or
 (d) proof that the mother of the acknowledgee could not possibly have been
the lawful wife of the acknowledgor at the time when the acknowledgee
could have been conceived.
Acknowledgment of Maternity

 Maternity only established in a natural mother whether the child illegitimate or

illegitimate, and the mother cannot disclaim it.
 If the H disclaimed the child, the child will not be his legitimate heir, but the child still
relate to its mother.
 The mother is responsible to maintain her child, give shelter and proper upbringing.
 A mother also can make acknowledgement through the Court provided that she proves on
her legal marriage to a certain man existed at the time of consummation.
 Acknowledgment by a woman in 'iddah. - the paternity of the person acknowledged shall
not be ascribed to her husband unless her acknowledgment is confirmed by him or by
evidence. –s.116 IFLA
Acknowledgement of a child

 Subject to the essential conditions for a valid acknowledgment, a child upon fulfilling the
provisions may acknowledge the parentage of a father or a mother through the Court.
 This acknowledgment can be made during the life of the parents, or after their death.
 A confirmation made by the father or a mother or any of their legal heirs creates a valid
relation between them.
 The Syariah Court accept acknowledgement made by a child admitting a person as its
parent with respect to the applied s117 IFLA
 Any acknowledgment made after the death of the acknowledged person will only be
confirmed by the other heirs substituting for the deceased with the right to refuse to
acknowledge the child as related to them.
Paternity through evidence & period of
gestation
 Paternity of a child can be presumed if there is a valid contract of marriage
between the parent.
 Where a child is born during the subsistence of a marriage, and there is no doubt
on the paternity, the child’s parenthood is proved through evidence of such
marriage
 Paternity of a child can be presumed if there is a valid contract of marriage
between the parent.
 Where a child is born during the subsistence of a marriage, and there is no doubt
on the paternity, the child’s parenthood is proved through evidence of such
marriage
Minimum period of gestation

 All schools of laws unanimously agree that the minimum period of gestation is 6
months reasonably decreasing 5 days and not more , based on qamariyya
counting.
 The schools of Imam Shafi’i, Maliki and Hambali :
 unanimously agree minimum period -6 months from the date of consummation of the
marriage.
 If the possibility of cohabitation for spouses existed even the slightest period, that will
justify the provision.
 Imam Hanafi:
 the period of gestation starts from the time a marriage contract concluded, and
possibility for cohabitation is not required.
Maximum Period of Gestation

 Jurists do not unanimously agreed to the max period of gestation

 Imam Malik: the longest period is 5 years
 Ibn Hakam and Ibn Rusd: a normal period of gestation should not exceed one year
 Shafi’i and Hanbali School of laws: the maximum period a child can stay in the
mother’s womb is 4 years.
Child Born to divorcee or widower

 Imam Shafi’i: the maximum period is 4 qamariyya years.-s112 IFLA

 Hanafi school of laws: the maximum period is 2 years-s110 IFLA
 The same rule applies in cases where birth occurred beyond 4 years after the
dissolution of marriage- s111 IFLA - the paternity of the child shall not be
established in the man
 Right of a legitimate child
 In Al-Baqarah 2:223 state that mothers shall suckle their child for 2 whole years, while the duty to provide
food, proper clothing, shelter and all other rights is upon the father .
 The father while shouldering all the responsibilities should not be charged beyond his capacity.
 Father’s duty to maintain a son concludes when he reaches the age of majority and his able to earn his own
life.
 As for daughter, father’s responsibility continue until and unless she is married where the duty to maintain
shifted to her H.
 If the father is unable to maintain his child whether temporarily or permanently, the court has to choose
other person to take the responsibility to support the child.
 A legitimate child also has the right to inherit form its parents, and in no circumstances they may be
excluded, even though they may exclude the others.
 They also have the right to get proper education and shelter.