Ex-nuptial Child Legal Definition:

A child born outside of marriage.

Related Terms: Bastard , Child of the Marriage , Born Out of Wedlock

Another term for child born outside of wedlock or even, historically, a bastard.

The 1997 Australian Legal Dictionary defines an ex-nuptial child as:

"... a child born outside of wedlock."

In 1985, the High Court of Australia used these words in Re Cook & Maxwell:

"It is now firmly established that, since the protection and nurture of the children of the marriage is at the very heart of the marital relationship, the power given by ... the Constitution to make laws with respect to marriage enables the Parliament to define and enforce the rights of a party to a marriage with respect to the custody and guardianship of a child of the marriage.

"The fact that a child is an ex-nuptial child of one of the parties to a marriage is obviously not sufficient, in itself, to make the child a child of the marriage. The very name indicates the truth of the situation - that the child is outside the marriage relationship, if no other circumstances exist which would bring it within that relationship. The Parliament cannot give itself legislative power by deeming a child to be a child of a marriage if the necessary connexion between the child and the marriage does not in truth exist. In truth, without more there is no connexion between an ex-nuptial child and the marriage of one of its parents."

REFERENCES:

  • Nygh, Peter and Butt, Peter, Australian Legal Dictionary (Sydney: Butterworths, 1997), page 447.
  • Re Cook & Maxwell, [1985] HCA 47

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