Legitimacy (law) - History

History

Certainty of paternity has always been considered important, especially in relation to a man's estate and genealogy. The ancient Latin phrase - "Mater semper certa est" ("The mother is always certain"), while the father is not - emphasized the dilemma. At common law there was a presumption of paternity that a married woman's child was that of the husband. However, that presumption could be questioned.

In many societies, people born out of wedlock did not have the same rights of inheritance as those of legitimate birth, and in some societies, even the same civil rights. In the United Kingdom and the United States, as late as the 1960s and in certain social strata even up to today, illegitimacy has carried social stigma. In previous centuries unwed mothers were forced by social pressure to give their children up for adoption. In other cases illegitimate children have been reared by grandparents or married relatives as the "sisters", "brothers" or "cousins" of the unwed mothers.

In most national jurisdictions, the status of a child as a legitimate or illegitimate heir could be changed - in either direction - under the civil law: A legislative act could deprive a child of legitimacy (as in the cases of the sons of Edward IV of England); conversely, a marriage between the previously unmarried parents, usually within a specified time, such as a year, could retroactively legitimate a child's birth.

Fathers of illegitimate children often did not incur comparable censure or legal responsibility, due to social attitudes about sex, the nature of sexual reproduction, and the difficulty of determining paternity with certainty.

By the final third of the 20th century, in the United States, all the states had adopted uniform laws that codified the responsibility of both parents to provide support and care for a child, regardless of the parents' marital status, and gave illegitimate as well as adopted persons equal rights to inherit their parents' property. In the early 1970s, a series of Supreme Court decisions abolished most, if not all, of the common-law disabilities of bastardy, as being violations of the equal-protection clause of the Fourteenth Amendment to the United States Constitution. Generally speaking, in the United States, "illegitimacy" has been supplanted by the phrase "born out of wedlock."

A contribution to the decline of the concept of illegitimacy had been made by increased ease of obtaining divorce. Prior to this, the mother and father of many children had been unable to marry each other because one or the other was already legally bound, by civil or canon law, in a non-viable earlier marriage that did not admit of divorce. Their only recourse, often, had been to wait for the death of the earlier spouse(s). Thus Polish political and military leader Józef Piłsudski (1867–1935) was unable to marry his second wife, Aleksandra, until his first wife, Maria, died in 1921; by which time Piłsudski and Aleksandra had two out-of-wedlock daughters.