Legitimacy and Legitimation

Azhani Binti Arshad Law 581(Jul-Nov 2009)

LEGITIMACY LEGITIMACY AND AND

LEGITIMATIONLEGITIMATIONGroups: LWB06D&EGroups: LWB06D&E


APPLICATION OF STATUTESAPPLICATION OF STATUTES • Evidence Act 1950• LRA• Legitimacy Act 1961• Adoption Act 1952• Registration of Adoption Act 1952

LEGITIMACYLEGITIMACY• Under the common law, a child is

considered legitimate if his parents are married at the time of his conception or at the time of his birth. There are instances where although the child is conceived prior to the valid marriage, he is considered a legitimate child as he is born during a valid marriage.


EVIDENCE ACT 1950EVIDENCE ACT 1950• Section 112 EA: The fact that any person

was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.


CONT…CONT…• Non-access may be proved if the

parties are physically separated or if the husband is proved to be impotent or incapacitated at the relevant point of time.


AINAN BIN MAHMUD v SYED ABU AINAN BIN MAHMUD v SYED ABU BAKAR BIN HABIB YUSOFF [1939] BAKAR BIN HABIB YUSOFF [1939]

MLJ 209MLJ 209

• Facts: One Mahmud had left some property for his children living at the date of the execution of a deed of settlement. P and D2, D3 and D4 were acknowledged sons of Mahmud. D6 was the only son of Mahmud with his wife , Long Raayah. D6 was born within 6 months of his father’s marriage to his mother and it was submitted to the court that D6 was illegitimate.

• The judge in this case had made the decision relying on section 112 EA, 1950. D6 was declared as legitimate son since he was born during the continuance of a valid marriage.

• (This decision has often been criticized. It is argued that section 112 EA is not applicable to Muslims.)


AH CHUCK v NEEDHAM AH CHUCK v NEEDHAM [1931] NZLR 559[1931] NZLR 559

• Facts: 1 Hedges married his wife on 29.5.1918. during the year 1928, Mrs Hedges was living with her husband and children and on 26.2.1928, she gave birth to the child mentioned in the complaint. Hedges registered the birth of the child. Ah Chuck was a market gardener who worked close to the house occupied by the Hedges and frequently visited their house in the absence of Mr Hedges. The child born to Mrs Hedges had Mongoloid features.

• The issues were whether the child was illegitimate and whether Ah Chuck was the father of the child.

• It was not disputed that at or about the time the child was conceived, Hedges and his wife had opportunities of access. They were living together and the child was therefore born during the subsistence of the marriage and on the face of it, it was legitimate. (even if it has been proved that the woman had committed adultery with the other man, the husband must be deemed to be the father of the child.


LEGITIMATION OF CHILDRENLEGITIMATION OF CHILDREN• An illegitimate child may be

legitimated either by statute or procedure.

• There are 3 ways in which legitimation of children may be possible:-– LRA;– Legitimacy Act 1961; or– Adoption Act 1952.


LRALRA• Section 75(1): provides that a child

of a voidable marriage shall be deemed to be born legitimate and in section 75(2), 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.


LEGITIMACY ACT, 1961 (LA)LEGITIMACY ACT, 1961 (LA)• An Act to provide for the legitimation of

children born out of wedlock.• Section 4: where the parents of an illegitimate

person marry or have married one another, whether before or after the prescribed date (section 2-interpretation), the marriage shall if the father of the illegitimate person was or is at the date of the marriage domiciled in Malaysia, render that person, if living, legitimate, from the prescribed date or from the date of the marriage, whichever be the later.


CONT…CONT…• Section 3(1) provides for the types of

marriage which may legitimise a child. • Section 3(2) provides that the legitimation of

a person under LA does not enable him or his spouse, children or remoter issue to take any interest in property unless expressly provided in LA.

• Section 5 provides for declarations of legitimacy of a legitimated person. Application should be made by petition and accompanied by affidavit (verifying the facts alleged) to the High Court


CONT…CONT…• Lau Zhan Chen (an infant by his mother and next

friend Lau Fatt Wan) v Makoto Togase [1995] 1 CLJ 841– Facts: The petitioner (male infant) was born to Lau Fatt Wan,

2nd R. The birth was registered with the 2nd R named as the petitioner’s natural mother. The name and particulars of the father was omitted in the birth certificate because at the time of the petitioner’s birth, the natural parents were not married. However, later, they were married on 28.2.1993 and wished to legitimize their children. The petitioner filed a petition under section 5(1) of LA.

– The High Court granted the declaration of the legitimacy to the petitioner after accepting the evidence of blood tests particularly that conducted by one Mrs Tan Wai Fun, where the results were that the probability of paternity was 99.7 % for Makoto Togase being the biological father of the petitioner.


CONT…CONT…• Section 6: provides that any illegitimate

child that has been legitimized under the Act shall be entitled to take interest in the property as if that legitimated child had been born legitimate.

• Section 11 provides the rights of an illegitimate child and the mother of an illegitimate child to succeed on intestacy of the other as if he had been born legitimate/ she had been the only surviving parent.


ADOPTION ACT, 1952ADOPTION ACT, 1952• Section 9 (legitimation of child by way of

adoption): provides that upon an adoption order being made by the court, all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child shall vest on the adopter as though the adopted child was born to the adopter in lawful wedlock.


CONT…CONT… • Section 31: Adoption Act does not apply to any

person who profess the religion of Islam (Muslim cannot adopt any child under the Act and non-Muslim cannot adopt Muslim children under the same)


DIFFERENCES BETWEEN ADOPTION DIFFERENCES BETWEEN ADOPTION ACT 1952 (AA) & REGISTRATION OF ACT 1952 (AA) & REGISTRATION OF

ADOPTION ACT 1952 (RAA)ADOPTION ACT 1952 (RAA)• Application

– AA- does not apply to any person who professes the religion of Islam.(section 31)

– RAA-it is applicable to Muslims and non-Muslim. Applies in West Malaysia only (section 1(2).

• Age of applicant– AA- Applicant/ one of the applicant (in a joint application)

must have attained the age of 25 years and is at least 21 years older than the child. If the adopter is a relative, he must have attained the age of 21 unless the court is satisfied that there are special circumstances for the making of an order [section 4(1)(a)].

– RAA- Applicant/ one of the applicant (in a joint application) must have attained the age of 25 years and is at least 18 years older than the child. If the adopter is a relative, he must have attained the age of 21 (section 10).


CONT…CONT…• Age of the Child

– AA- the child must be less than 21 years of age and can be a male, female or female divorcee.(section 2)

– RAA- the child must be under the age of 18 years and had never been married (section 6(1).

• Sex of Applicant– AA- an adoption order cannot be made in any case

where the sole applicant is a male and the child in respect of whom the application is made is a female, unless the court is satisfied that there are exceptional circumstances which justify as an exceptional measure the making of an order (section 4(2)).

– RAA- the Act is silent on this.Azhani Binti Arshad Law 581(Jul-Nov 2009)

CONT…CONT…• Effect of Adoption

– AA- the child becomes the legitimate child of the adopter (section 9(1). Therefore the legal link between the child and the natural parents is severed.

– RAA- the Act does not confer on the adopted child the status or the rights of a natural son or daughter. Therefore the legal link between the child and the natural parents is not severed.

• Prohibited Degrees of Marriage– AA- an adopted child is prohibited from marrying his or

her foster sister or brother who are children of his previous adopter, as well as his or her foster sister or brother who are children of his subsequent adopter. The adopted child also cannot marry his previous adoptive parent or his current adoptive parent. (section 9(7)).

– RAA- the Act is silent on this.


CONT…CONT…• Requirement of Continuous Care and Possession

of the Applicant– AA- the child is in the care and possession of the adopter

for a period of 3 consecutive months immediately before the date of application. (section 4(4)(a).

– RAA- the child is under the care and custody of the adopter 2 years continuously before the date of the application (section 6)

• Tan Kong Meng v Zainon Md Zain [1995] 3 MLJ 408• Facts: since the child was 3 months old, she has been cared

by a Malay couple and the Registrar of Adoptions exercised her discretion and dispensed with the consent of the father. However, since the Malay couple could not prove that they had been maintaining the child all the while, the court held that the registration was void ab initio.


CONT…CONT…• Consent of Parents or Guardians

– AA- An adoption order shall not be made except with the consent of the parent or guardian or who is liable to contribute to the support of the child. (section 5(1)).

• However the court may dispense with the consent if satisfied:-– That he has abandoned, neglected or persistently ill-treated the child;– That he has persistently neglected or refused so to contribute;– The person whose consent is required cannot be found or is incapable of

giving his consent or that his consent is unreasonably withheld; or– That any competent authority has given permission or granted licence

authorising the care and possession of the child to be transferred to the applicant

– Re Baby M [1994] 2 MLJ 635– RAA- the parent or parents or if both the parents are dead or if

neither of the parents is within West Malaysia, any guardian of the child shall appear before the Registrar and express consent to the adoption (section 6(1)(b))

• provided that the Registrar is satisfied that it is just and equitable and for the welfare of the child that he may dispense with the consent or appearance of any parent or custodian who shall have signified his consent by statutory declaration.


CONT…CONT…• Requirement of Consent of the Other Spouse in the

Application of Adoption by one of two spouses. – AA- …and an adoption order shall not be made upon the

application of 1 2 spouses without the consent of the other of them. (section 5(1)).• However the court may dispense with the consent if satisfied:-

– The person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or

– That any competent authority has given permission or granted licence authorising the care and possession of the child to be transferred to the applicant

• Section 5(2) provides that the court may dispense with the consent of the spouse if the court is satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving such consent or that the souses have separated and are living apart and that the separation is likely to be permanent.

– RAA- the Act is silent on this.



Legitimacy and Legitimation

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