Duhaime's Law Dictionary


Legitimate Child Definition:

A child conceived or born during marriage.

Related Terms: Illegitimate Child, Bastard, Heir, Born Out of Wedlock, Child, Child of the Marriage, Paternity, Pater est quem nuptiae demonstrant

A legitimate child (often contrasted with an illegitimate child) is one that is born or conceived during the marriage.1

"A child conceived in wedlock, but born after termination of the marriage status, is legitimate.

"The presumption of the legitimacy of a child born (or conceived) while the mother is married is one of the strongest rebuttable presumptions known to the law, and although legitimacy under such a condition may be challenged by the husband, and the wife (mother) may question the identity of the child, she cannot challenge its legitimacy."

Those strong words were issued by the District Court of Appeal of Florida in Smith v Wise.

In Re Wilson, Justice Vaisey used these words:

"In contrast to adoption the meaning of legitimation is plain and unambiguous. When a person is said to have been legitimated there is little, if any, room for doubt as to what is intended: it means that he has been placed in the position of one born in lawful wedlock. Adoption, on the other hand, is the creation of a purely artificial relationship with characteristics which are quite undefined."

Not to be outdone, Justice Simon was even more eloquent in the Ampthill Peerage Case:

"Legitimacy is a status: it is the condition of belonging to a class in society the members of which are regarded as having been begotten in lawful matrimony by the men whom the law regards as their fathers.

"Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition.

"Fatherhood, by contrast, is a presumption.

"A woman can have sexual intercourse with a number of men any of whom may be the father of her child; though it is true that modern serology can sometimes enable the presumption to be rebutted as regards some of these men.

"The status of legitimacy gives the child certain rights both against the man whom the law regards as his father and generally in society."

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