Report No. 15
39. Second view: children of bona fide marriages to inherit as legitimate.-
The second view recognises the force of the reason in support of the first view, but seeks to limit it to cases where the parties to a marriage deliberately break the law and contract prohibited marriages. Where however they are not aware of the true facts constituting the impediment, and there is no intention on their part to set the prohibitions at naught, then, the demands of public policy are, it is said, sufficiently satisfied by declaring the marriage void, and there is no need to go further and visit the consequences of the mistake of the parents on the children.
To illustrate, the wife marries a second time in the honest belief that her husband had been drowned when the ship in which he travelled sank in the high seas. Likewise, two persons who are within prohibited degrees, contract a marriage in ignorance of their relationship. Public policy does not, it is said, require that in addition to declaring the marriage void, the children of the marriage should also be bastardised. This principle has, it should be noticed, been accepted to a limited extent in section 21 of the Divorce Act, which provides that when a person contracts a second marriage in the bona fide belief that the spouse by the previous marriage was dead, then the children of such marriage would be entitled to succeed to the estate of their parents as if they were legitimate.
It may be mentioned here that it is this view that commended itself to the Royal Commission on Marriage and Divorce in England. Its report on this point runs as follows1:
"In England, if a marriage is void ab initio, the children of the marriage are deemed to be illegitimate. It may be noted, however, that before the Reformation, the Canon law held that the child of a void marriage was legitimate where the defect rendering the marriage void was unknown to one of the parties."
"Under the common law of Scotland, where at the time of the marriage one or both of the parties to a putative marriage was or were ignorant of the impediment to the marriage, the children are held to be legitimate, and are entitled to the ordinary rights of succession. The ignorance must be of the existence of the impediment and not merely ignorance of the law."
"One witness suggested that the Scots rule be adopted in England. Others advocated that to avoid hardship to children born of a void marriage they should always be deemed to be legitimate. In our view no distinction can be drawn between children who were illegitimate from birth and children born of parents who had gone through a ceremony of marriage, both knowing at the time of an impediment which rendered the marriage void. The Scots rule, on the other hand, seems to us to be sound and we suggest that in England, as in Scotland, children born of a void marriage should be held to be legitimate where it is shown that one or both of the parents was or were ignorant of the impediment to the marriage."
It was to implement the above recommendation that the British Parliament enacted, as already stated2, the Legitimacy Act, 1959, providing therein that the child of a void marriage shall be treated as the legitimate child of his parents if at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage if the marriage took place later) both or either of the parents reasonably believed that the marriage was valid.
1. Report of the Royal Commission on Marriage and Divorce, 1955 Cmd. 9678, pp. 305 and 306, paras. 1184 to 1186.
2. See para. 38, supra.