INTRODUCTION
Before now, children born outside of marriage were usually subjected to social and cultural discrimination. However, significant legal reforms and judicial pronouncements have increasingly emphasized the need for the protection of children, regardless of the status of their parents at the time of their birth.
This article examines the rights, recognition, and welfare of children born outside marriage in Nigeria, the Constitutional, Statutory, and Judicial authorities, and legal frameworks.
WHO IS A CHILD
Looking at the provisions of the Constitution of the Federal Republic of Nigeria[1] there is no express definition as to who a child is. However, the Black’s Law Dictionary[2] defined a child as a person under the age of majority. The Children and Young Persons Act[3] defined a child as a “person under the age of fourteen years and a young person to mean “a person who has attained the age of fourteen years and is under the age of seventeen years. The African Charter on the Rights and Welfare of the Child[4] defined a child as “every human being below the age of eighteen years.
LEGAL DEFINITION AND HISTORICAL BACKGROUND
A child born outside of marriage or an illegitimate child is one whose parents were not legally married as of the time of the child’s birth[5].In the past, this status often resulted in the denial of inheritance, family name, and recognition under many Nigerian customary systems. In recent times, with constitutional guarantees, judicial reforms, and progressive legislation, this discriminatory stance is gradually eroding.
In the Nigerian legal system, two distinct types of marriage are recognized under the law: monogamous marriage and polygamous marriage. Whilst monogamous marriage permits the marriage of one man to one wife, polygamous marriage, which is either customary or Islamic marriage, allows a man to marry more than one wife at a time. Consequently, for a child to be considered legitimate, the child must be a product of a validly contracted marriage. Nevertheless, children born without marriage can also be regarded as legitimate children for certain purposes, if the alleged father has acknowledged paternity[6].
LEGAL FRAMEWORKGOVERNING THE RIGHTS OF CHILDREN IN NIGERIA
- The Child’s Rights Act 2003 is the principal legislation safeguarding children’s rights in Nigeria. It explicitly states that no child shall suffer any disability or disadvantage solely due to the circumstances of their birth[7]. Importantly, this protection extends to children born outside of marriage. The Act was enacted to give full effect to both the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. A comprehensive framework that outlines the rights, universal principles, and standards relating to the status of a child. Parts II and III of the Act address the rights and responsibilities of the child, as well as provisions for the protection of those rights[8].
- The Constitution of the Federal Republic of Nigeria (1999 as amended): The Constitution guarantees the right to the dignity of human persons, equality, and freedom from discrimination. Section 42(2) of the Constitution provides that no citizen of Nigeria shall be subjected to any form of disability or deprivation because of the circumstances of their birth[9].
- The Matrimonial Causes Act: The Act under Section 71(1)[10] enjoins the court to uphold the interest and welfare of children as paramount in any proceeding involving a child’s custody, guardianship, maintenance, education, or general welfare; such consideration should be placed above every other consideration or interest.
LEGAL RECOGNITION OF CHILDREN BORN OUTSIDE OF MARRIAGE
Under Customary and Islamic laws, a child born outside of marriage often lacks automatic recognition within the father’s lineage except through the acknowledgement of paternity by the father[11]. Under Islamic law, an illegitimate child is hardly recognized as legitimate and may not be allowed to inherit the father’s property. Under Nigerian law, a child is presumed to be ‘legitimate’ if born within a lawful marriage, which encompasses Statutory, Customary, or Islamic marriage. Children born outside of these unions are considered illegitimate, a status that traditionally limits their legal rights, particularly concerning inheritance[12].
However, mechanisms exist to confer inheritance upon such children:
a. Acknowledgment under Customary Law: Customary practices permit a father to legitimize his child by acknowledging paternity through actions like naming ceremonies, public declaration, paying the mother’s maternity bills, or acknowledgment in a letter[13].
b. Legitimation by subsequent marriage: Section 3 of the Legitimacy Act of 1929[14] allows for a child born outside of marriage to be legitimized if the parents marry after the child’s birth. The legal effects of the subsequent marriage of the parents are to make the illegitimate children legitimate from the commencement of the Act.[15]
RIGHTS OF CHILDREN BORN OUTSIDE MARRIAGE
a. Inheritance Rights: Historically, under customary law and in many Nigerian communities, children born outside of marriage were often exempted from inheriting from their father’s property. However, these norms are gradually fading away as children born of such parents are allowed to inherit from their parents, provided there is an acknowledgement of paternity or maternity has been established.
In the case of Salubi v. Nwariaku[16]: The deceased Chief T.E. A Salubi died intestate on 19th September, 1982 survived by his widow whom he married under the then Marriage Ordinance, two children born of him by the said widow and two other children born of him out of wedlock but whose paternity he acknowledged and who were in his life time raised in the matrimonial home with the consent of his lawful wife who accepted them as children of the family. Dr. T.E. Salubi the appellant in this case was the first son of the deceased. Upon the death of the deceased intestate, letters of administration were on 14th June, 1985 granted his widow and the appellant.
Dissatisfied with the manner in which the appellant had been managing the estate of the deceased the eldest surviving child of the deceased, Mrs Benedicta Nwariaku the 1st respondent for herself and as a beneficiary of the estate of the deceased sued the appellant praying for orders to set aside the letters of administration granted the appellant and that the estate of the deceased be distributed to all the beneficiaries of his estate in accordance with the Administration of Estates Law of Bendel State which governs the estate of a person whose marriage is regulated by the Marriage Ordinance….’’.
The Supreme Court, per Ayoola JSC, held that the two children of the deceased born out of wedlock during the subsistence of his marriage, whose paternity he acknowledged during his lifetime, were entitled to share in his estate equally with the children of the lawful marriage. In applying section 39(2) of the 1979 Constitution (now section 42(2) of the 1999 Constitution), the court affirmed that the Court of Appeal was right to have found that the two children born out of wedlock were entitled to share equally in their father’s estate.
Proof of Paternity may be achieved through:
Voluntary acknowledgment: A father’s acknowledgment of paternity, such as inclusion in a will or public recognition. In Okonkwo v. Okonkwo[17]the court held by virtue of Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, children born outside of marriage but whose paternity was acknowledged by the intestate have an equal share with the children of the marriage.
Scientific Testing[18] ; Courts may order DNA testing to ascertain paternity. The Court held in Anozia v. Nnani [19] per CHIKWE AGBO JCA that if a party is claiming paternity, a court of law is allowed to determine same on proof of evidence relating to paternity, which could only be done by referral to a DNA test of the parties involved. After such test, the court has a duty to declare the actual father of the child in dispute inconsonance with evidence at its disposal.
The Evidence Act 2011 allows DNA testing and other evidence to be submitted in an action involving a dispute as to the paternity of a child. This test is further recognized by the Child’s Rights Act and provided under section 63(1)(a) of the Act[20]:
In any civil proceedings in which the paternity or maternity of a person fall to be determined by the court hearing proceedings, the court may, on application by a party to the proceedings give a direction for the use of scientific tests, including blood tests and Deoxyribonucleic Acid test to show that a party to the proceedings is or is not the father or mother of that person.
Documentary Evidence: Birth Certificates, photographs, or other documents indicating a parent-child relationship between the child and the parent will suffice. Once these are established, the child is entitled to an equal share of the deceased parent’s estate[21].The Court in Ukeje v. Ukeje[22]held per Olabode Rhodes JSC: on the issue of whether the respondent was the daughter of L.O. Ukeje (deceased), family photographs may have helped to resolve the issue, but the birth certificate of the respondent was decisive in settling the issue.
b. Rights to maintenance and parental care:
The concept of maintenance is not limited to children born within lawful wedlock. Children born outside of marriage equally deserve financial support from their parents to ensure their welfare and development. The law’s continual recognition of the need to protect the rights of children, whether born outside marriage or within lawful marriage, cannot be overemphasized. The law increasingly recognizes that a child’s right to maintenance is independent of the marital status of their parents. Whether the parents were married, cohabiting, or in a casual relationship, the obligation to support the child remains. This principle is essential to promoting equity, reducing child poverty, and protecting the best interests of all children, regardless of the circumstances of their birth.
c. Freedom from stigma and discrimination: Article 1 of the Universal Declaration of Human Rights (UDHR) affirms that all human beings are born free and equal in dignity and rights, possessing reason and conscience, and should treat one another with a sense of brotherhood. This means that freedom and equality are inherent human qualities, not dependent on legal recognition[23]. Article 2 builds on this by declaring that everyone is entitled to all the rights and freedoms in the UDHR without discrimination. It lists grounds like race, sex, language, religion, birth, or any other status, emphasizing that the list is not exhaustive. It also prohibits discrimination based on the political or international status of a person’s country or territory[24].
This is to say, in essence, that the provisions of UDHR uphold universal equality and non-discrimination as core principles of human rights.
d. Rights to education and health care:
The Child’s Rights Act 2003[25] guarantees free and compulsory basic education and access to health care services for all children, regardless of their birth status.
International laws like the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child also protect these rights and forbid discrimination based on birth. No school or hospital has the legal right to deny services to a child because of the status of their parents. While social stigma may exist, it has no legal backing.
The Administration of Estate Law of Lagos State went further in recognizing that children born outside of marriage are entitled to benefit from their deceased father’s estate. Section 26(1) of the Administration of Estate Law of Lagos State provides[26]:
“In granting administration, the court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof and any such administration may be limited in any way the court thinks fit”
Furthermore, the Court in Mgbodu v Mgbodu[27]affirmed the quality of shares in the estate of the deceased by nullifying the grant of Letters of Administration for excluding a non‑marital child. The above provision and judicial pronouncement stand to posit that all persons and beneficiaries interested in the estate of the deceased can apply for letters of administration, and the phrase “all persons interested” includes children born outside of marriage.
SOME CHALLENGES FACED BY CHILDREN BORN OUTSIDE OF MARRIAGE
Despite legal advancements, children born outside of marriage often face:
- Social Stigmatization: Cultural norms in some communities continue to stigmatize these children, thereby affecting their psychological well-being.
- Disputed paternity: Challenges in establishing paternity can often hinder access to inheritance and support.
- Lack of awareness: Many are unaware of their legal rights, leading to ignorance and underutilization of available protections under the law.
- Uneven implementation of child protection laws across Nigerian states.
CONCLUSION
The legal landscape in Nigeria has evolved to provide greater recognition and protection of children born outside of marriage. Despite cultural and customary challenges. Constitutional guarantees, statutory provisions, and judicial decisions now ensure that such children are not denied their rights solely because of the circumstances of their birth. The state is also bound by its duty to protect and ensure the rights and welfare of every Nigerian child. These duties extend to ensuring that all laws enacted for the protection of children born in Nigeria are enforced to bring into effect the protection of those rights. Thus, continued advocacy, legal reforms, and sensitization are necessary for the uniform application of these protections across all states in Nigeria.
[1]1999 cap c23 LFN 2004 (as amended in 2010)
[2]B.N. Garner (West Group, St Paul Minnesota, 8th ed. 2004) p.254.
[3]Section 2,Cap 22Laws of the Federation of Nigeria 2004
[4]Article 2, ACRWC 1999
[5]https://dictionary.findlaw.com/definition/-.html
[6]https://www.ijllr.com/critical-examination-of-the-concept-of-illegitimacy-under-nigerian-laws
[7] Section 10(2) of the Act
[8] https://lawpavilion.com/blog/an-overview-legal-rights-of-a-child-in-nigeria/
[9] Ibid
[10] Ibid
[11] https://isochukwu.com/2017/12/31/family-law-2-7-legitimacy-and-legitimation/
[12]Ibid
[13]https://www.linkedin.com/pulse/inheritance-rights-child-born-out-wedlock-jessica-eni/
[14] Ibid
[15]https://www.lawyard.org/opinions/legitimacy-illegitimacy-legitimation/
[16](2003) 7 NWLR (Pt. 819) 426
[17](2014) 17 NWLR (Pt 1435)18
[18]https://chamanlawfirm.com/
[19](2015) 8 NWLR (Pt. 1461) 241
[20] Ibid
[21] https://thelegalstandpoint.law.blog/2020/10/29/
[22](2014) LPELR‑22724(SC)
[23] Ibid
[24] Ibid
[25] Ibid
[26] Administration of Estate Law, Laws of Lagos State, Volume 1, CAP A3, 2003
[27](2015) 12 NWLR (1474) 415 (CA).