Bastard (Law of England and Wales)

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A bastard in the law of England and Wales was a person whose parents, at the time of his birth, were not married to each other. A person conceived to a couple not married to each other but who subsequently marry before the birth would not be treated as a bastard.

Unlike many other systems of law, there was no possibility of post hoc legitimisation of a bastard. If the parents married after the birth, the child would remain a bastard.

Common law origin

Bastardy was not a status, like villeinage, but the fact of being a bastard had a number of legal effects on an individual.

• A bastard was neither a direct nor a collateral heir of their parents -- a useful consequence if the parents were villeins

• A bastard could not be ordained as a priest.

One exception to the general principle that a bastard could not inherit, occurred when the eldest son (who would otherwise be heir) was born a bastard, but the second son was born after the parents were married. The eldest son is referred to as a bastard eigne, the second son a mulier puisne.

If the bastard eigne entered onto land of his father and became seised of it until his death, the mulier pusine and all other potential heirs of the father would not inherit, rather heirs of the bastard eigne's body would inherit.

The Provisions of Merton 1235 (20 Hen. 3 c. IX), otherwise known as the Special Bastardy Act 1235, provided that except in the case of real actions the fact of bastardy could be proved by trial by jury, rather than necessitating a bishop's certificate.

Reform

Post-hoc legitimisation was introduced under the Legitimacy Act 1926 (16 & 17 Geo. 5 c. 60) and the Family Law Reform Act 1969 (c. 46) allowed a bastard to inherit on the intestacy of his parents.

References

• William Blackstone's Commentaries on the Laws of England, Book 2, Chapter 15

External links

• For a discussion of the position of illegitimate children with respect to British Nationality see: http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/nis/l-p/legitimacy.html
• http://www.kessler.co.uk/dtwt/articles/Barlow_Children_and_Issue.html

See also

• Illegitimacy

 

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