Status of Children

History

• In the last 30 years the law has changed dramatically. In early times, the law failed to recognise any relationship between ex-nuptial children and their parents. In the 1970s legislation was introduced to reduce this disadvantage to ex-nuptial children.

• Note: at common law a child was deemed to be legitimate if born to a married woman and this strong presumption could only be rebutted with proof beyond reasonable doubt. Now the civil burden of proof applies.

• The current Act is the Status of Children Act 1996 (NSW).

• Also, amendments were made to the FLA so that the position of ex-nuptial children is similar to that of children whose parents are or were married. These provisions displace the NSW provisions in some ways because of s 109 of the Constitution.

Blackstone

• A bastard under English laws is where a child is born out of lawful matrimony. This was done to know what child is legitimate so it can be known who is to take care of the child. It was meant to prevent fraud and partialities. Roman law allowed bastard children to be legitimised if their parents later married and this could be for the desire to procreate lawful heirs. A bastard can inherit nothing and can therefore have no heirs- he is kin to nobody.

Cretney and Masson

• At common law a child was only legitimate if his parents were married when he was born or conceived. They were born filius nullius and not legal relationship was recognised with anyone.

• Later the definition of illegitimate was narrowed as parents could marry after the child was born to be legitimised and recognising some children from void marriages. Rights accorded to legitimate children were extended to illegitimate children and the law of inheritance was changed so that they could claim under a will.

Legitimisation of children

S 91 if the Marriage Act

• A child of a marriage that is void shall be deemed for all purposes to be the legitimate child of his parents as from his birth or the commencement of this Act, whichever one was later.

1. Subject to this section, a child of a marriage that is void shall be deemed for all purposes to be the legitimate child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later, if, at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid.

2. Subsection(1) does not apply unless one of the parents of the child was domiciled in Australia at the time of the birth of the child or, having died before that time, was domiciled in Australia immediately before his or her death.

3. Subsection(1) applies in relation to a child whether the child was born before or after the commencement of this Act, whether the ceremony of marriage took place before or after the commencement of this Act and whether the ceremony of marriage took place in or outside Australia.

4. This section does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect, or by devolution by law on the death of a person who died, before the birth of the child or the commencement of this Act, whichever was the later.

Section 89 Marriage Act 1961 (Cth)- Legitimation by virtue of marriage of parents

1. A child (whether born before or after the commencement of this Act) whose parents were not married to each other at the time of his or her birth but have subsequently married each other (whether before or after the commencement of this Act) is, by virtue of the marriage, for all purposes the legitimate child of his or her parents as from his or her birth or the commencement of this Act, whichever was the later.

2. Subsection(1) applies in relation to a child whether or not there was a legal impediment to the marriage of his or her parents at the time of his or her birth and whether or not the child was still living at the time of the marriage or, in the case of a child born before the commencement of this Act, at the commencement of this Act.

3. Subsection(1) does not apply in relation to a child unless:

(a) at the time of the marriage of the child's parents:

(i) where that marriage took place before the commencement of section24 of the Marriage Amendment Act 1985 --the child's father was domiciled in Australia; or

(ii) in any other case--one of the child's parents was domiciled in Australia; or

(b) the marriage of the child's parents took place in Australia, or outside Australia under PartV of this Act or under the Marriage (Overseas) Act 1955 .

4. Nothing in this section renders ineffective any legitimation that took place before the commencement of this Act by or under a law of a State or Territory or shall be taken to exclude the continued operation of such a law in relation to such a legitimation.

5. This section does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect, or by devolution by law on the death of a person who died, before the marriage of the parents of the child or the commencement of this Act, whichever was the later.

Conflicts of laws

• A person’s legitimacy may involve a foreign element, as where some form of legitimisation was carried out in another country whose laws recognised it as effective.

• Some cases are covered by s 90 of the Marriage Act but this does not deal with the legitimisation under foreign law by a process other than the intermarriage of the child’s parents.

• In general a court will recognise a foreign legitimisation if the child’s father is domiciled in the relevant country....

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