•What Does The LAW Say?
In most societies, rights of succession in inheritance matters are usually fraught with controversies and acrimony amongst beneficiaries particularly in intestacy succession. Intestacy is where a deceased person dies without making a valid Will. Fundamental to these acrimonious issues are matters relating to Paternity and Legitimacy of the beneficiaries. It suffice to state that the Concept Of Legitimacy is closely linked with Status. A child may be born legitimate, or, may be legitimated subsequently. Under the Nigerian Law, a child is legitimate when he is born within wedlock or immediately after the dissolution of the marriage of the parents within a particular timeframe. However, Legitimacy is founded on all forms of marriages recognised by the law which could be Statutory, Customary or Islamic marriage.
However, the concept of legitimacy is not strictly applied under Customary Law in most cultures. A child is still considered legitimate even when the parents were not married when he was born. A child may acquire legitimacy under customary laws in different ways. In the some cultures in the eastern part of the country, a woman whose father did not have a male child may decide or be persuaded to remain unmarried and bear a male child who would be considered the legitimate child of the grandfather for inheritance purposes. This practice is to protect the grandfather’s name and lineage from threatened extinction. Another practice is where a childless woman would marry a wife for her husband who would bear children for the husband but such children would be the legitimate children of the husband and the first wife. In another instance, if by any chance a widow who chooses to remain in her husband gets pregnant for another man while still residing in her deceased husband’s house, such child will be a legitimate child of the deceased husband and not the natural father.
Unlike the statutory marriage, a child is legitimate provided the father acknowledges the child irrespective of any marriage between the mother and father or not. Acknowledgement of the paternity of a child could either be oral or acts performed by the father. It could be performing the naming ceremony or the payment of the school fees and welfare of the child.
It is imperative to state that legitimacy is usually linked to the paternity of a child and not his maternity. Reasons for this disparity may be adduced to biological configurations of child birth. The maternity of a child is easily identifiable in the absence of any error or deliberate act of child swapping at the birth of the child rather than the paternity of the child. Consequently, legitimacy issues are more likely to occur in relation to the estate of an intestate deceased man than an intestate deceased woman.
Under the Nigerian Law, there is a strong presumption in favour of legitimacy of every child born within wedlock. Thus, every child born or conceived during the subsistence of a marriage between a man and a woman is considered the legitimate child of the man of that marriage. This presumption further persists even after the death of the man or dissolution of the marriage in particular circumstances. However, this presumption is rebuttable where there is conclusive and irrefutable evidence of high level persuasion to the contrary. It is safe to assume that these presumptions where given credence due to public policy on the basis of morality and the absence of scientific and technological advancements at the time these presumptions were invented.
A man in a lawful marriage who denies the paternity of a child born during the subsistence of his marriage must adduce compelling evidence to rebut the presumption of paternity and legitimacy of the child. Such evidence could be lack of sexual access to the wife at the material time when the child was conceived or with the evidence of a DNA or impotence. However, due to scientific breakthroughs in modern times, the most reliable mechanism and conclusive proof of paternity is through scientific methods particularly DNA. This same high standard of proof is also required by the law for a woman who also asserts the non existence of paternity rights of her lawful husband towards a child of their marriage.
Other presumptions of the law are the 280 days rule. Under this presumption, any child born to a woman within 280 days of the death of her husband or dissolution of her marriage is presumed to belong to the former husband. However, this law is only applicable if the woman was unmarried at this time she gave birth to the child. Again, this presumption is also rebuttable by the woman with strong and compelling evidence to the contrary.
Also, where a woman was pregnant prior to her marriage but delivered such child after her subsequent marriage, there is a presumption in favour of the man she married to be the father of the child in the absence of any compelling evidence to the contrary. However, either of the parties could rely on non-access of the parties to each other during the material time the woman conceived. For instance, despite the subsequent marriage of the parties, if the either of the parties can prove that they had not met at the time the child was conceived, the court will hold that against the legitimacy of the child.
It is worthy to note that the submission of parties in a dispute of paternity to submit to a medical examination is not mandatory. Under the Child Rights Law, the court can direct that parties submit themselves for medical examination. However, if such party refuses such medical examination, the court may only draw an inference that the child belongs to him or otherwise as the justice of the case demands. However, if the paternity revolves a person who has attained adulthood, the court may only persuade him to make himself available for the examination and not compel him. This is so because an order for medical examination is only available under the Child Rights Act as such excludes adults.
Further issues that usually are a bone of contention regarding inheritance rights are the legitimate status of children born outside of wedlock to men during the subsistence of statutory marriage. It is often contended that it is only the children of the statutory wife who is entitled to share in the distribution of the estate of their father. Prior to the constitutional provision of section 39(2) of the 1979 Constitution which has been re-enacted as section 42(2) of the 1999 Constitution, the attitudes of the law was that children born out of wedlock during the subsistence of statutory marriage are excluded from the distribution of the estate of their father. The reasons for this position being that once a man submits himself to a particular law, he must be prepared to be bound by it. The reasoning is further supported that statutory marriages which is a direct importation of the English matrimonial laws is alien to polygamy. Other reasons are that such practice should be discouraged as not to be seen to encourage promiscuity. This position was in practice for years until the Supreme Court took a decisive position in the case of Dr T.E.A Salubi v Mrs Benedicta Nwariakwu. It stated that any decision which shuts out the rights of children born out of wedlock to the distribution of their father’s estate is in direct conflict with S42 (2) of the 1999 constitution and thus amounted to subjecting them to disability or deprivation merely by reason of the circumstance of their born out of wedlock, which was exactly what Section 39(2) of the Constitution was aimed at preventing. Consequently, every child born out of wedlock is legitimate notwithstanding provided they were acknowledged by their father during his lifetime. However, the position seems different where the child was not acknowledged by the father prior to his death. The only condition where children can be entitled to the equal distribution of their father’s estate is the acknowledgement of their paternity by their father
However, a child could still be acknowledged even after the death of the father. This situation may occur where the family acknowledges the paternity of the child even after the death of the father. In most cases, ,men who have bear children outside of wedlock confide in one or two of their family members on the existence of such a child even if he does not do so publicly before his death. The family members may have even attended the naming ceremony of the child or even witnessed a performance of a customary marriage between the deceased and the mother of the child. In such cases, the acknowledgement may be deemed valid.
Olamide Onifade is a practising lawyer and the founder of Olamide Onifade & Associates.
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