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Bastard

An illegitimate child, born in a relationship between two persons that are not married (ie. not in wedlock) or who are not married at the time of the child’s birth.

Historically, being born out of wedlock was significant as it deprived a person of his otherwise inheritance, which was usually the only way to acquire real property.

The Church recognized bastards if the natural parents subsequently married. When England was just sorting out the new beast called a "parliament", the very first set of statutes (Statute of Merton, 1235) included consideration of a proposal by:

"... all the Bishops ... that all such as were born afore matrimony shold be legitimate as well as they that be born after ... as to the succession of inheritance, forasmuch as the Church accepteth such for legitimate. And all the Earls and Barons with one voice answered that they would not change the laws of the Realm, which hitherto have been used and approved."

... which suggests that for the old Earls and Barons, there might be some truth to the old joke:

  • Q. How many natural fathers does it take to screw in a lightbulb?
  • A. Lightbulb? What lightbulb? I didn't screw any lightbulb! It's not my lightbulb and I don't know anything about it!

The only advantage, sometimes, to being a bastard (except for geneologists), was that the bastard did not take his father's surname. They were considered born without any surname and could choose anyone they liked.

Bastards were of such a lower caste in medieval England that Latin expressions were developed just for them, labelling them "son of nobody, sons of the people".

Blackstone, in his Commentaries on the Laws of England (1765) said that a bastard "cannot be heir to anyone, neither can he have heirs" and could be legitimized only by "act of Parliament".

He added, on the subject of divorces, that:

"... the issue of such marriage as is thus entirely dissolved are bastards".

Other jurisdictions, though, accepted as legitimate the birth of a child before marriage if the naural parents subsequently married.

But at common law, bastards not legitimized by the marriage of their parents, were left empty-handed when their parents died (with one esoteric exception to do with real property which goes by the cool name of bastard eigné).

By now, though, most nations (including England) have stated on the record that all children have equal rights, whether they are issue of a marriage or not.

The 1969 and then 1987 Family Law Reform Act of England is clear:

"In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time."

BC's Estate Administration Act defines "issue" without reference to marriage; as "all lineal descendants of the ancestor".

All of this pales in the new usage of the word, a generic term, inspired by the vagaries of war (General Patton comes to mind), referrring now to someone that is "offensive or disagreeable person - used as a generalized term of abuse" (Merriam Websters Dictionary).

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.

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