As social beings, one instance of human interactions is the wedlock between a man and a woman. Interaction outside the wedlock in the form of extramarital affairs constitute another instance. It could also be that before the man or woman got married, his or her pre-marital affairs produced offspring. Another possibility is that the offspring come(s), from either party, during the existence of a valid marriage between the couple.
A child is said to be born out of wedlock where s/he is given birth to by parents who were not validly married under the law at the time of giving birth to him or her.
While some families, by sheer providence, still carry on peacefully with the child or children born out of wedlock fully integrated, majority of other families with such situations are eternally embroiled in one dispute or the other over time.
One of such crucial times when the dispute may get to the peak is when the man or the woman dies, possibly leaving property for inheritance by those alive. In this situation, the property right of the children born in wedlock and those born out of wedlock becomes an issue where the deceased did not make any will before his death.
A recent situation where we at Property Advisory Network had to render legal advisory was a case where a wealthy man married a wife under the Marriage Act. Marriage under the Act is that form of marriage conducted at the Marriage Registry or a licensed place of worship following which a marriage certificate(FORM E) will be issued to the parties by the Registrar or the authority of the place of worship.
This type of marriage is different from the customary or traditional marriage where the man pays the bride price of the woman in Nigeria. While both marriages are valid, they have different consequences. While the husband in a traditional marriage can marry additional women, he cannot so do where he conducts a marriage under the Act and the existing marriage under the Act has not ended by a divorce or death.
Going back to the facts, after the marriage under the Act, years later the man married another woman by conducting a traditional marriage with her when his first marriage was still existing. Both marriages produced children and the man dies in 2018. The issue that arose in connection with the children was whether the children born by the woman in the second marriage were entitled to share in the property of the deceased bearing in mind that the marriage to their mother was invalid.
The marriage was invalid because under the Marriage Act in Nigeria, marriage under the Act carries the consequence of one man and one woman to the exclusion of any third party, so that any subsequent “marriage” between either couple of a marriage under the Act that is pending, is totally void. This is captured in section 35 of the marriage Act which provides thus:
Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law….
As a matter of fact, celebrating such subsequent customary marriage is an offence that attracts Five-year imprisonment under section 47 of the Marriage Act.
Furthermore, for those who married only under customary law and die without making any will, certain customary laws deprive children born out of wedlock from inheriting their father (or mother). There are also instances in Igbo culture where the eldest surviving son is entitled to the house where the deceased father lived (called Obi), so the question is what happens where the eldest surviving son was born out of wedlock? Generally speaking, what is the fate of a child who never asked to be born out of wedlock in terms of property inheritance especially when s/he was not in control of the circumstances of his or her birth?
The answer to the above scenarios and complications is contained in the relevant laws applicable in Nigeria discussed below.
Article 1 of the Universal Declaration on Human Rights 1948 provides that:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 17 provides that:
Everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property
Article 3(1) of the African Charter on Human and Peoples’ Rights also provides that:
Every person shall be equal before the law.
Article 14 provides that the right to property is guaranteed.
These laws were domesticated in Nigeria via African Charter on human and People’s Rights Enforcement Act .Cap A9, LFN 2004.
Section 42(2) of the 1999 Constitution of Nigeria as amended provides that:
No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
From the above legal provisions, it is clear that depriving children born out of wedlock the inheritance of their father or mother’s property is illegal as same amounts to discrimination against them.
The current position in Nigeria today is that there are no illegitimate children and children born out of wedlock have equal right to be entitled to share in the property of their deceased father provided that during the lifetime of the father, he expressly (directly) or impliedly (indirectly) acknowledged that he was the father of the children born pour of wedlock (see PETER CHIKE MGBODU v. WILLY KANAYO MGBODU (2018) LPELR-43770(CA); Messrs A. Younan & Sons v. Lawal & Ors(1961) LPELR-25073(SC), Bamgboshe v. Daniel 14 W.A.C.A. 111 at page 115 and Alake v. Pratt 15 W.A.C.A. 20).
Interpreting section 42(2) of the 1999 Constitution as amended in PETER CHIKE MGBODU v. WILLY KANAYO MGBODU,the Court of Appeal held that no custom in Nigeria can deprive any child of inheriting the property of his or her late father.
The court went further to explain the justification behind this position of the law thus:
The reason for this, is to my mind, not far-fetched. No child came into the world by himself or herself. So, why should such a child be put at a disadvantage because of the conduct of a randy father and a promiscuous mother? It would be unconscionable therefore, to dis-inherit such a child from partaking in the father’s estate.
Also in UKEJE V. UKEJE2014) LPELR-22724(SC) where one of the issue was the legality of the Igbo customary law which deprives children born out of wedlock from inheriting the property of their father, the Supreme Court held thus:
The trial court, I hold did rightly declare Unconstitutional, the law that disinherits children from their deceased father’s estate. It follows therefore that the Igbo native law and custom which deprives children born out of wedlock from sharing the benefit of their father’s estate is conflicting with section 42(2) of the constitution of the Federal Republic of Nigeria, 1999 (as amended).
From the above exposition, we at Property Advisory Network confirm that children born out of wedlock in Nigeria today have equal rights with those born in wedlock to share in the property of their late father or mother provided that during the lifetime of the parent, there was a direct or indirect acknowledgement of paternity or maternity it does not matter who is the mother or father. This means that even if a mad woman or a prostitute bears a child for a man ,in as much as the man acknowledges the paternity in any form (publicly or secretly} the child is entitled to inherit from the fathers estate
We urge Nigerians across the country to abide by this position of the law. We also urge children born out of wedlock to take advantage of this exposition to assert their rights instead of sleeping on their rights.