Legitimation

Legitimation

(Lat. legitimatio).

The canonical term for the act by which the irregularity contracted by being born out of lawful wedlock is removed (see IRREGULARITY). Legitimation cousequently presupposes illegitimacy. It is to be noted that all children born of marriage are presumed in canon law to be legitimate. This holds, not only for valid marriages, but also for such as are commonly reputed to be valid, though really invalid, provided such marriages were entered into, by at least one of the parties, in good faith. A marriage of this latter kind is called a putative marriage. If both parties to such marriage were in bad faith, the children would be held legitimate in the external forum, as this bad faith would not be manifest. In case both contractors were in good faith, the children would be legitimate, even if the marriage were afterwards declared to be null. Presumption of legitimacy is always in favour of the children born of a person in wedlock, unless evident proof be given that physical reasons make the paternity of the husband impossible, such as absence, impotence, etc.; and even a sworn confession of wrongdoing on the part of either reputed parent will not otherwise affect the legitimacy of the children. Infants born before the usual time of gestation or after it, as, for example, at the beginning of the seventh month after the marriage ceremony, or at the completion of the tenth month after the death of the husband, are held to be legitimate. When marriage is entered into by two parties who suspect there is an impediment but make no inquiry into the truth, and it afterwards be made plain that such obstacle to validity did exist, their offspring is illegitimate, because affected ignorance is equivalent to knowledge. If, however, the doubt arise after the consummation of the marriage, children conceived before a sentence of invalidity is rendered have the standing of legitimate children.

Illegitimate offspring are designated by various names in canon law, according to the circumstances attending their procreation: they are called natural (naturales) children, if born of unmarried persons between whom there could have been a legitimate marriage at the time either of the conception or the birth of their offspring; if born of a prostitute, illegitimate children are called manzeres; if of a woman who is neither a prostitute nor a concubine, they are designated bastardi; those who are sprung from parents, who either at the time of conception or of birth could not have entered into matrimony, are termed spurii; if, however, valid marriage would be impossible both at the time of the conception and of the birth of the children, the latter are said to be born ex damnnato coitu; when one parent is married, the illegitimate children are called nothi; if both are wedded, adulterini; if the parents were related by collateral consanguinity or affinity, incestuosi; if related in the direct line of ascent or descent, nefarii. Illegitimate natural children are legitimated by a valid or putative marriage subsequently contracted between their parents, even if that marriage be not consummated. Hence such a marriage could be contracted even by a dying person. But this privilege is extended only to those between whose parents a legitimate marriage would be possible either at the time of birth or conception, or, at least, at some intermediate time, not to those whose parents, during that whole period, would be bound by a diriment impediment. The legitimation of children does not depend on the will of their parents, and takes place even when the latter are unwilling, or even when the marriage has been celebrated after other marriages contracted during the interim. This legitimation extends to natural children who are already dead and consequently to their living descendants. An infant thus legitimated is held equal to legitimate children in all respects as to sacred orders and as to ecclesiastical dignities, except the cardinalate. This last exception was made by Sixtus V (3 Dec., 1586). It is not required that mention of such legitimation be made either in public documents or nuptial banns. Such legitimation is termed plenior in canon law to distinguish it from the plena legitimation which is granted by papal rescript, and from the plenissima which follows on the radical validation of a marriage (sanatio in radice). Illegitimate children who are not naturales cannot be legitimated by a subsequent marriage of their parents. This privilege may however be granted them by dispensation from the pope.

The sovereign pontiff has the power of legitimating all children born out of wedlock and thus making them capable of hereditary succession, and of receiving sacred orders, honours, dignities, and ecclesiastical benefices. A legitimation by a civil law does not remove the canonical irregularity, as laymen have no ecclesiastical jurisdiction. By common canon law, it is forbidden to ordain illegitimate persons, unless they be lawfully dispensed or be professed in a religious order. In the latter case, however, they are not capable of receiving prelacies, unless a special rescript be conceded. For major orders, dignities, and canonries in a cathedral church, the pope alone can dispense; the power of the bishop extends only to minor orders and simple benefices. If an episcopal see be vacant, the cathedral chapter has the same power as the bishop. Legitimation for Sacred orders carries with it the dispensation to obtain a benefice, but not that for minor orders, unless it be expressly stated. A son born lawfully to one who afterwards receives Sacred orders cannot immediately succeed to the paternal benefice; if unlawfully begotten, he may not succeed at all. A father, however, may succeed his lawful son in a benefice without any dispensation, because there is then no question of hereditary succession. Canon law and the Roman civil law are not in accord in the matter of legitimation, as the latter restricts the privilege to children born of concubinage, whose parents afterwards married. The church law, as we have seen, extends to all illegitimate children the benefit of possible legitimation. The laws of England and those of many states of the American Union do not recognize legitimation of children as following upon a subsequent marriage.

FERRARIS, Bibliotheca Canonica, s. v. Filius and Lcgitimatio (Rome, 1886); TAUNTON, The Law of the Church, s. v. Illegitimate Children (London, 1906); AICHNER, Compendium Juris Ecclesiastici (Brixen, 1895); LAURENTIUS, Institutiones juris ecciesiastici (Freiburg, 1903).

W. FANNING