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Inheritance: Out of wedlock children

This is the conclusion in the long series of inheritance discussions. We have looked at most general aspects and some specific issues relating to inheritance laws under both customary and general law. We discussed the importance of safeguarding property left in a deceased estate.

By MIRIAM TOSE MAJOME

We looked at the appointment of an executor and their functions and responsibilities and the office and functions of the Master of the High Court.

We also discussed inheritance by surviving spouses in both monogamous and polygamous marriages. We also looked at wills and their importance in the administration of estates. Last week we looked at the estates of single and childless people. We conclude the topic today by looking at the inheritance rights of children born out of wedlock.

The Law

Section 56(3) of the Constitution outlaws discrimination in a specific manner. It reads: “Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status or whether they were born in or out of wedlock.’’

A person or a child cannot be discriminated against and deprived of rights which are accorded other people simply because they were born of parents who were not married to each other.

The choices, mistakes, folly or circumstances of parents should not be used against children born of these unions. Indeed the prevailing common law position where some children were seen as lesser children was outlawed as it violates the Constitution.

Of bastards and illegitimate children

Negative attitudes and language towards other people because of their birth circumstances is outlawed in our statutes. The Births and Registration Act 5:02 describes children born of unmarried people as “children born out of wedlock”. It does not talk of bastards, illegitimate children, love children or anything meant to belittle or demean children. All children are accorded the same rights and privileges to names and identity documentation whether born in or out of wedlock and the same basic rights.

Closely in tandem with this is the Maintenance Act Chapter 5:09 which compels parents to provide maintenance to all their children whether conceived within or outside a marriage. Many wives know this and grudgingly accept that their busy husbands have parental obligations to fulfil outside the thorny little nest which they share.

Furthermore the Deceased Persons Family Maintenance Act Chapter 6:09 provides that maintenance must be provided for all the deceased’s minor children from the deceased estate.

As long as a person has a legal duty to maintain any minor child the law does not excuse them from that obligation even after their death. Even death is not an excuse for not paying child maintenance. As long as the child can prove that they were the deceased’s child they will have a genuine claim to maintenance from the estate. Birth certificates play a big role is seen in these circumstances.

2015 judgment

In 2015 the High Court delivered a landmark ruling which decreed once and for all and unequivocally stated that children born out of wedlock have equal status with children born in wedlock and are entitled to an equal share of inheritance of their deceased parents’ estates.

Issues pertaining to children born out of wedlock or from extra-marital relations are controversial in many families. Usually the official wife of a man and the official family feel deprived of what they believe is their sole and exclusive entitlement.

The argument is that the husband used to deprive the family of its full share of family resources in order to maintain the other children outside the marriage. The official family feels it has more entitlement if not exclusive entitlement to the father’s inheritance.

They believe that they are the real and legitimate children, while the other children are illegitimate and hence have a lesser status and rights. This belief is what the law and the judgment sought to correct and to reaffirm that every child is a “real” child and legitimate person who has equal rights to their parent’s estate.

Sharing the inheritance

In both civil and customary marriages the surviving spouse inherits the matrimonial house and the household items. In the case of couples married under civil law ie Marriage Act Chapter 5;11 the surviving spouse is entitled to a share in the joint estate and a further share in the free residue of the estate, while descendants such as children are entitled to an equal share of the residue.

Other relatives such as parents, brothers or sisters are also entitled to a share in the free residue if there are no children.

The children share in the net residue and each one gets a child’s portion of what is left over after debts and other obligations have been paid.

All the deceased person’s children including those born outside that marriage share in the allowed distributable portion of the residue. If there is a will left behind the deceased’s wishes will be followed for as long as they are legally and ethically sound.

If there is no will and a couple owned a house together the surviving spouse will, apart from retaining her own share, inherit the deceased spouse’s half and, therefore, claim the house entirely. Even if the spouse had no registered share in the house he or she is still entitled to the matrimonial house if there is no will left. It is only the deceased’s share in property that is distributed and shared. The wife’s own property and shares are not distributed.

As far as 56(3) of the Constitution is concerned this position is correct because it leaves no room for discrimination of children.

However, Section 56(5) allows for some exceptions and some allowable discrimination if it is fair, reasonable and justifiable to discriminate within the circumstances.

This would be if the inheritance by children born out of wedlock in an estate would result in unfairness and injustice in a manner that results in the usurpation and derogation of other people’s property rights. Only in such circumstances would it be fair and just to exclude children born out of wedlock from sharing in an inheritance.

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