The legal status of children born out of wedlock in Nigeria: is the concept of illegitimacy in decline?

Abstract

The legal status of children born out of wedlock has been a core issue in Nigeria. This is due to the conflict of law issues that have arisen with the enactment of section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). The section seeks to protect affected children from disability or deprivation by reason of the circumstances of their birth. Nigeria’s legal system rotates on the tripod of common law, statutes and customary law. Ensuring a healthy mix from this legal pluralism especially with respect to legitimacy and legitimation of children born out of wedlock has been despairing. This paper seeks to examine the legal status and rights of children born out of wedlock especially in succession matters and the extent to which section 42(2) of the Constitution has enhanced their legal status. It also examines challenges presented and ponders whether the common law principle of legitimacy is not in decline. It concludes by advocating the customary law position of legitimation as section 42(2) of the Constitution did not after all, abolish the common law principle of legitimacy but merely seeks to protect affected children against any form of disability or deprivation.