1 LEGITIMACY AND LEGITIMATION  INTRO  Most of the rights and duties between parent and child depend on whether the relationship is legitimate or not. Thus, the understanding of the different between legitimate and illegitimate relationship is very important especially in discussing about rights such as maintenance and custody.

2  Comparatively, legitimacy in earlier days was much greater stigma than it is nowadays.  A person born illegitimate was ‘filius nullius - the child of no one’, although it was quite clear who was the child’s mother as in law ‘the unmarried mother could give the child no status’.  Therefore, for a legally valid parent and child relationship to exist, the basis of its existence must present i.e legitimacy.

3  DEFINITION  S.M Cretney :  “Legal concept whereby a couples’ child is entitled to full recognition as a member of their family group; enjoying the legal rights which that status involve.”  Re Lowe(1929) 2 Ch at p. 212,Rome J said;  “Legitimacy is the question of status … This status of legitimacy can be obtained by being born legitimate or by being legitimated by virtue of the provision of the Act. The plaintiff had attained the status, and it is an irrelevant consideration whether she attained it in one way or the other.”

4  According to Blackstones, Under Common law, a child is regarded as a legitimate child only if his parents were lawfully married either:-  - at the time of his conception, even if the marriage has ended by death or by divorce before his death,  - or at the time the child’s birth although he was conceived before his parents were married.  Thus, what is important is that he was born out of a valid marriage.

5  Legitimacy is therefore essentially a question of fact. Yet the burden of proving affirmatively is a very difficult one.  Thus, to facilitate proof of paternity, the Common law adopted the Civil law maxim “Peter est quem nuptiac demonstrant” i.e if a child is born to a married woman her husband is deemed to be its father until the contrary is proved.

6  LEGITIMACY IN MALAYSIA  1) Section 112 of Evidence Act 1950  2) Section 75 of the LRA  1) Section 112 of Evidence Act 1950  “ The fact that any person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be a conclusive proof that he is the legitimate son of the 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”.

7  From the provision in the section 112 of Evidence Act 1950, there are two limbs:-  1) born during the continuance of a valid marriage between his mother and any man /  2) born within 280 days after its dissolution, the mother remaining unmarried  EXCEPT  The parties had no access to each other at any time when he could have been begotten.

8  A valid marriage is one of the most important elements.  A valid marriage means:-  i) valid marriage under LRA  ii) all marriages outside Malaysia which are valid under section 72 of the LRA iii) all prior marriage deemed to be registered under section 4 of the LRA. iii) all prior marriage deemed to be registered under section 4 of the LRA.

9  Within 280 days after its dissolution and the mother remaining unmarried except it can be shown that the parties to a marriage had no access to each other.  Access means opportunity – existence or non-existence of opportunities to have a sexual relationship.  Thus, strong evidence must be adduced to show that his mother and her husband has no access to each other i.e no opportunity of having sexual relationship.  e.g He was totally impotent  He was away from the mother at the time when  the child would have been conceived.  Thus, a mere fact that they are living separately in two different houses is insufficient to prove non-access.

10  Burden of proof  The burden of proof showing that the parties to the marriage had no access to each other when the child should have been conceived is on the person who challenge its legitimacy.  It has been decided that serious illness of the husband during the period of which the child must have been conceived was held not sufficient to rebut the presumption.

11  2) Section 75 of the LRA – void and voidable marriage.  LEGITIMATION  Def:- is the process whereby a person who is born illegitimate is subsequently made legitimate.  Re Lowe, Romer J., said that legitimacy is a question of status. This status of legitimacy can be obtained either by being legitimate or legitimated by virtue of the provision of the Act.

12  In Malaysia, there are certain ways to legitimize an illegitimate children i.e through certain acts i.e  Legitimacy Act 1961  Adoption Act 1952,Registration of Adoption Act 1952, Adoption Act 1960 (Sabah), and Adoption Ord. (S’wak).

13  Legitimacy Act  It provides for the legitimation of a person by a subsequent marriage of his or her parents- biological parents.  Section 4 provides that the child is made legitimate when his or her biological parents marry each other after his or her birth and that subsequent marriage shall operate to legitimize the status of the child. However, the father must be of a Malaysian domicile at the time of the marriage which must be solemnized and registered under:-

14  s. 3:  Civil Marriage Ordinance 1956/ Christian Marriage Ordinance 1956  Christian Marriage Ordinance / Marriage Ordinance 1959 of Sabah.  Church and Civil Marriage Ordinance of Sarawak  Adoption  Another way to legitimize the illegitimate child is by way of adoption.  Certain procedures should be followed. Governed by the specific statute.

15  Rights of legitimated person  As if the child was born as a legitimate child. Shall have the same rights as the natural child – e.g.  Section 6 of the Legitimacy Act- A legitimated person, his spouse and the children shall be entitled to take any interest in the estate and property.  Section 9 of the Adoption Act 1952 – upon an adoption order being made the court, all rights, duties, obligations and liabilities of the parents or guardians as though the adopted child was a child born to the adopter in lawful wedlock.  - stand within prohibited degree of consanguinity with the natural children of the adopted parents 

16  CASES  LAU ZHAN CHEN (AN INFANT BY HIS MOTHER & NEXT FRIEND LAU FATT WAN (f) V MAKOTO TOGASE & 2 ORS.  [1995] 1 CLJ 841  This was petition inter alia a declaration that the Petitioner was the legitimate child of the first and the second Respondent.  The Court has accepted the DNA test which confirmed that the first Respondent was the biological father of the petitioner with a probability of 99.7%.  Where scientific evidence by means of a blood test can resolve the issue of paternity conclusively, the interest of justice require that a blood test should be done in the absence of strong reasons to the contrary.

17  NG CHIAN PERNG( SUED BY HER MOTHER AND NEXT FRIEND WONG NYET YOON) V NG HO PENG [1998] 2 MLJ 686.  Under section 112 of the Evidence Act 1950, there is a strong presumption that the child was the legitimate child of the husband for the reason that at the material time of the birth, there subsisted a valid marriage between the appellant and the husband. To rebut the presumption, the appellant must show that she and the husband had no access to each other at any time when the child should have been begotten.

18  PETER JAMES BINSTED V JEVENCIA AUTOR PARTOSA [2000] 2 CLJ 906  The respondent wife applied to the Megistrate Court for maintenance for herself against the appellant under section 3(1) of the Married Woman and Children(Maintenance) act She claimed that the appellant was her husband and they had a children form their marriage. The appellant disputed her claim and upon the respondent’s oral application, the Magistrate ordered the applicant, the respondent and the child to undergo a DNA test. The appellant appeal against the said order.

19  Held:  Neither the MWACMA 1950 nor any either piece of legislation contains any provision that allows the court to order the DNA test. The courts in Malaysia have no power under statute or common law to order a person to undergo a test to ascertain paternity. A person is perfectly entitled to refuse to submit himself to such a test.

20  1) OTHMAN BIN HAJI ABDUL HALIM V HAMISAH BINTI AWANG (1994) 3 CLJ 78. DNA test was conducted to determine the paternity of the child. DNA test was conducted to determine the paternity of the child. HELD: due to some technical error, the test failed to prove. T v. O Child from a void marriage. Section 75. The child in this case was a legitimate child.