CHAPTER 12

LEGITIMACY

Legitimacy in Zambia is governed by the Legitimacy Act, Chapter 52 of the Laws of Zambia. Legitimacy

refers to the status of a child at birth. If a child is born in lawful wedlock, that is, to parents who are

married to each other he or she is legitimate. The child is illegitimate if born to parents not married to each

other. There is a presumption of law that a child born in marriage is legitimate, that is, the husband is

deemed to be the father of a child who is conceived by or born to his wife during their marriage. 1 The

presumption is reputable if the husband can shown that he is not the father. Proof of paternity is now

possible through a DNA2 test if the parties consent. Paternity is also rebutable if the child is of

questionable physical appearance, for instance if born a mulatto, that is, of mixed black and white

parentage when both parents are black or white. However in the New Zealand case of Ah Chuck v

Needham.3 Physical appearance was not admitted in evidence to rebut the presumption of legitimacy

notwithstanding the Chinese features in the child born to European parents and the mother had previously

had a love affair with a Chinese gardener. The court said that “there was no accounting for the vagaries of

nature.”

Paternity may be rebuttable if the child is born at full term (nine months) when the relationship of the

parties is of a shorter duration; or if intercourse was not possible during the period the child was born, for

instance, for the reason that the father was away, unless the conception was a result of artificial

insermination using the husband’s sperms.

The presumption of legitimacy extents to children born in a voidable marriage if conception took place

before the marriage was nullified. The Legitimacy Act in the preamble states as follows:

“ An Act to amend the law relating to children born out of wedlock ; and to provide for matters

incidental thereto

______________________________________________________________________________________
1 Anthony Dickey Family Law 3rd LBC Information Services 1997
2 Deoxyribonucleic acid is the test used to establish parentage using the blood, seven, hair roots etc
of a person who disputes parentage see SM cretney and J.M Masson: Principles of Family Law
6h ed at 631
3 1931 NZLR 559; Anthony Dickey Family Law Op cit .
4 ibid
In Section 2 (a) of the Legitimacy Act provided for a person whose father or mother was married to a third
person when he was born.

Section 3 provides as follows

(1) Subject to the provisions of this section, where the parents of an illegitimate person marry or have
married one another….. the marriage shall, if the father of the illegitimate person was or is
domiciled in the Republic, reader the person, if living, legitimate-
(a) in the of a legitimated person whose father or mother was married to a third person when he
was born the date of the marriage leading to legitimating where the marriage occurred before
the appointed date,4 the appointed date,5 or person whose father or mother was married to a
third person when he was born, from the appointed date (1 st January 9166) or from date of
marriage, whichever last happens; or
(b) in any other case, from the commencement of this Act, or from the date of the marriage,
whichever happens last..

EXTRA MARITAL CHILDREN

These are children born to a man or woman who is married to someone else, or to an unmarried woman and
man married to another woman. Paternity may be established by a blood test or by the child’s birth register
if the father acknowledged in writing that he was the father at the time of registering the birth. Section 15
of the Act provides as follows:
“No person shall be bound as father to give notice of an illegitimate child and no person
shall be registered as the father of such child except on the joint request of the mother and
himself and upon his acknowledging himself in writing to be the father of the child in the
presence of the Registrar.”

Where a person required to write or append his/her signature is illiterate, he or she shall affix a mark. By
Section 21 (2) where a person acknowledges himself to be a father of an illegitimate person, the Registrar
shall require him to sign the register first, before the mother. If they cannot sign, they are required to affix
mark in the register.6

The Births and Deaths Registration Act Chapter 51 of the Laws of Zambia requires the birth of every child
to be registered within one month, or in exceptional circumstances within twelve (12) months of the date
of the birth of the child. 7 If a birth of a child is not registered as aforesaid, it can only be registered upon a
satisfactory report being made to the Registrar-General 8 and complying with the appropriate requirements
of the law.

5 “The appointed date” means the 1st January 1966 per Section 2. of the Act
6 Rule 21, Births and Deaths Registration Rules
7 Rule 23, Births and Deaths Registration Rules
8 Rule 24, Births and Deaths Registration Rules
The Births and Registration Act applies to all children, whether born of a civil or customary marriage; to an
unmarried woman and man, or to an unmarried woman and man is married to someone else. It is not a
requirement that a child should be registered in the names of a particular parent. Hence the child may be
registered in the name of the mother or of the father. In practice however, children are generally registered
in the father’s name as their surname. It is also not unusual to find children of the same parentage
registered in different names as traditionally, a child may be named after an important person or event of
significant at the time of the child’s birth. (e.g. hunger, as a result of drought, flood, a death, locusts, mice,
etc)

The prescribed form for registration of births provides for particulars of the mother and father of the child
and also details of their marriage. Where the form is blank with respect to particulars of marriage of the
parents, it can be presumed that the child is illegitimate. Paternity can also be presumed where there is a
maintenance agreement between the mother and father of the child as a in Rita Mwalubanga v Jeep Juul
Nielse;8 or where a man acknowledges that he is the father of a child by executing some formal instrument
to that effect, as held by court in Charity Oparaocha v Winnie Murambiwa.9 In this case the man a Nigerian
resident in Zambia registered two children at the Nigerian High Commission and obtained passports for
them in his name. It would appear that a child born to a Zambian man and woman in an extramarital
relationship however, would still be required to be registered under the Registration of Births and Deaths
Act as already discussed.

RIGHTS OF ILLEGITIMATE CHILDREN

Generally children born outside marriage have the same rights as those born in marriage. The mother, and
the father where paternity is not denied, have a duty to maintain the child. The rights of children to
maintenance and inheritance have already been discussed in Chapters 9 to 11 and 13. Only some highlights
are discussed here.

Right to Succession

The Legitimacy Act has not been reviewed since 1965 when it was amended by way of Statutory
Instrument 152 (of 1965) soon after independence. It has not therefore been harmonized with recent
developments and amendments in other laws that apply to children. For instance, Section 3(2) provides
that
“The legitimation of a person under this Act does not enable him or his spouse, children or
remoter issue to take any interest in real or personal property save as is hereinafter in ths Act
expressly provided.”

9 2000/HPA/46
10 SCZ Judgment NO. 15/2004, Supra, page
The Intestate Succession and the Wills and Administration of Testate Estate Acts 11 both provide that a child
born in or out of marriage is entitled to inherit form a parent, as long as percentage is not in dispute.

Section 7(1) of the Legitimacy Act provides that “a legitimated person and his spouse, children or more
remote issue shall be entitled to take any interest-

(a) in the estate of an intestate dying after the date of legitimation

(b) under any disposition coming into operation after the date of legitimation
(c) by decent under an entitled interest created after the date of legitimation;

in a like manner as if the legitimated person had been born legitimate.”

In other words, all these rights to property accrue to the person born out of marriage only if the person has
been legitimated by subsequent marriage of the person’s parents

By Section 7(2) “where the right to any property, real or personal, depends on the relative seniority of the
children of any person, and those children include one or more legistimated persons, the legitimated person
or persons shall rank as if he or they had been born on the day when he or they became legitimated by
virtue of this Act, and if more than one such legistimated peŕson became legitimated at the same time,
they shall rank as between themselves in order of seniority.”

Section 13 provides for the right to succession

(1) Where, after the commencement of this Act, the mother of an illegitimate child, such child
not being a legitimated person, dies intestate as respects all any of her real or personal
property, and does not leave any legitimate issue her surviving, the illegitimate child, or, if he
is dead, his issue, shall be entitled to take any interest therein to which he or such issue would
have been entitled if he had born legitimate.

(2) Where, after the commencement of this Act, an illegitimate child, not being a legitimated
person, dies intestate in respect of all or any of his real or personal property, his mother if
surviving shall be entitled to take any interest therein to which she would have been entitled if
the child had been born legitimate and she had been the only surviving parent.

Rights of children of void and voidable marriages

In the case of children of void marriages, Section 4 provides as follows:

 4. (1) Subject to the provisions of this section, the child of a void marriage, whether born
before or after the appointed date, shall be treated as the legitimate child of his parents if
at the time of the act of intercourse resulting in the birth (or at the time of the celebration
of the marriage if later) both or either of the parties reasonably believed that marriage
was valid.

(2) This Section shall apply, where the father of the child was domiciled in the Republic at
the time of the birth or, if he died before the birth, was so domiciled immediately before
his death.

(3) The provisions of this section shall not affect-

(a) any rights under the intestacy of a person who died before the appointed date;
(b) the operation or construction of any disposition coming into operation before the
appointed date;

(4) In this section, “void marriage” means a marriage, not being voidable only, in respect of
which the High Court has or had jurisdiction to grant a decree of nullity, or would have had
such jurisdiction if the parties were domiciled in the Republic.

Section 5 provides for the legitimacy of children of viodable marriages

“Where a decree of nullify is granted in respect of a viodable marriage, any child who would have
been the legitimate child of the parties to the marriage if it had been dissolved instead of being
annulled, at the date of the decree shall be deemed to be their legitimate child notwithstanding the
annulment.”

Section 10 provides that a legitimate person has the same rights as a person born legitimate. It provides as
follows:
A legitimated person shall have the same rights, and shall be under the same obligations in respect
of the maintenance and support of himself or of any other person as if he had been born legitimate,
and, subject to the provisions of this Act, the provisions of any Act relating to claims for
damages, compensation, allowance, benefit, or otherwise by or in respect of a legitimate child
shall apply in like manner in the case of a legitimated person.

By Section 13(1)

Where, after the commencement of this Act, the mother of an illegitimate child, such child not
being a legitimated person, dies intestate as respects all or any of her real or personal property, and
 does not leave any legitimate issue her surviving, the illegitimate child, or, if he is dead, his issue,
shall be entitled to take any interest therein to which he or such issue would have been entitled if
he had been born legitimate.

The emphasis is therefore made, that this Act needs to be harmonized with the laws of maintenance and
inheritance to remove any doubt or conflict as to the status of children born out of wedlock. Illegitimate
children no longer suffer any legal disadvantages and such terms as ‘bastards’, ‘bush’ or ‘roadside’ 12
children or “filius nullius” (child of nobody) are no longer used to describe them. At common law in the
Eighteenth century, an illegitimate child was referred to as a bastard and as such the child had no heritable
blood. He or she had no legal right to maintenance nor could he/she inherit property and no one could
inherit through him or her.13 Law reform has changed this and in England the family Law Reform Act of
1987 ended the distinction between children based on the marriage status of their parents. 14

At international law the 1989 United nations Convention on the Rights of the Child brought a new and
important [perspective to children’s right.15 It applies to all children without discrimination and lists
children’s basic human rights as including rights to name, nationality, identity, privacy and liberty; civil
and political right-freedom of expression, thought, conscience religion and assembly; economic and social
rights – health care, standard of living and social security, and cultural rights, among other rights.

11 At customary law generally all children have the same rights. Having a child outside marriage is however a moral issue and it is associated with meeting in
‘dark corners’ or the bush resulting in conception and birth as it is generally assumed that the “Chigololo” (Immoral Casual Sexual act) took place without
anyone else’s knowledge parties having met in the ‘bush’ or roadside outside the village, most likely, at night. In modern times although the sexual act is
still considered immoral, parties can have it in descent structures.
12 Anthony Dickey Family Law op cit, page 272
13 SM Cretney and J.M. Masson op cit, p 603
14 See the Summary of the provisions of the UNCRC in Chapter 11, Supra