LEGITIMACY

AND
LEGITIMATION
Groups: LWB06D&E

Azhani Binti Arshad Law 581(Jul-Nov 2009)

APPLICATION OF STATUTES
• Evidence Act 1950
• LRA
• Legitimacy Act 1961
• Adoption Act 1952
• Registration of Adoption Act 1952

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 LEGITIMACY
• Under the common law, a child is considered
legitimate if his parents are married at the time
of his conception or at the time of his birth.
There are instances where although the child is
conceived prior to the valid marriage, he is
considered a legitimate child as he is born
during a valid marriage.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 EVIDENCE ACT 1950
• Section 112 EA: The fact that any person was
born during the continuance of a valid marriage
between his mother and any man, or within 280
days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is
the legitimate son of that man, unless it can be
shown that the parties to the marriage had no
access to each other at any time when he could
have been begotten.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
• Non-access may be proved if the parties are
physically separated or if the husband is
proved to be impotent or incapacitated at the
relevant point of time.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 AINAN BIN MAHMUD v SYED ABU
BAKAR BIN HABIB YUSOFF [1939] MLJ 209
• Facts: One Mahmud had left some property for his children
living at the date of the execution of a deed of settlement. P
and D2, D3 and D4 were acknowledged sons of Mahmud. D6
was the only son of Mahmud with his wife , Long Raayah. D6
was born within 6 months of his father’s marriage to his
mother and it was submitted to the court that D6 was
illegitimate.
• The judge in this case had made the decision relying on
section 112 EA, 1950. D6 was declared as legitimate son since
he was born during the continuance of a valid marriage.
• (This decision has often been criticized. It is argued that
section 112 EA is not applicable to Muslims.)

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 AH CHUCK v NEEDHAM [1931]
NZLR 559
• Facts: 1 Hedges married his wife on 29.5.1918. during the year 1928, Mrs
Hedges was living with her husband and children and on 26.2.1928, she
gave birth to the child mentioned in the complaint. Hedges registered the
birth of the child. Ah Chuck was a market gardener who worked close to
the house occupied by the Hedges and frequently visited their house in the
absence of Mr Hedges. The child born to Mrs Hedges had Mongoloid
features.
• The issues were whether the child was illegitimate and whether Ah Chuck
was the father of the child.
• It was not disputed that at or about the time the child was conceived,
Hedges and his wife had opportunities of access. They were living together
and the child was therefore born during the subsistence of the marriage and
on the face of it, it was legitimate. (even if it has been proved that the
woman had committed adultery with the other man, the husband must be
deemed to be the father of the child.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 LEGITIMATION OF
CHILDREN
• An illegitimate child may be legitimated either
by statute or procedure.
• There are 3 ways in which legitimation of
children may be possible:-
– LRA;
– Legitimacy Act 1961; or
– Adoption Act 1952.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 LRA
• Section 75(1): provides that a child of a
voidable marriage shall be deemed to be born
legitimate and in section 75(2), a child of a
void marriage shall be deemed to be born
legitimate if at the time of the marriage one or
both parties reasonably believed that the
marriage was valid.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 LEGITIMACY ACT, 1961 (LA)
• An Act to provide for the legitimation of children
born out of wedlock.
• Section 4: where the parents of an illegitimate person
marry or have married one another, whether before or
after the prescribed date (section 2-interpretation), the
marriage shall if the father of the illegitimate person
was or is at the date of the marriage domiciled in
Malaysia, render that person, if living, legitimate,
from the prescribed date or from the date of the
marriage, whichever be the later.
Azhani Binti Arshad Law 581(Jul-Nov 2009)
 CONT…
• Section 3(1) provides for the types of marriage which
may legitimise a child.
• Section 3(2) provides that the legitimation of a person
under LA does not enable him or his spouse, children
or remoter issue to take any interest in property
unless expressly provided in LA.
• Section 5 provides for declarations of legitimacy of a
legitimated person. Application should be made by
petition and accompanied by affidavit (verifying the
facts alleged) to the High Court

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
• Lau Zhan Chen (an infant by his mother and next friend
Lau Fatt Wan) v Makoto Togase [1995] 1 CLJ 841
– Facts: The petitioner (male infant) was born to Lau Fatt Wan, 2 nd R.
The birth was registered with the 2nd R named as the petitioner’s
natural mother. The name and particulars of the father was omitted in
the birth certificate because at the time of the petitioner’s birth, the
natural parents were not married. However, later, they were married on
28.2.1993 and wished to legitimize their children. The petitioner filed a
petition under section 5(1) of LA.
– The High Court granted the declaration of the legitimacy to the
petitioner after accepting the evidence of blood tests particularly that
conducted by one Mrs Tan Wai Fun, where the results were that the
probability of paternity was 99.7 % for Makoto Togase being the
biological father of the petitioner.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
• Section 6: provides that any illegitimate child
that has been legitimized under the Act shall be
entitled to take interest in the property as if that
legitimated child had been born legitimate.
• Section 11 provides the rights of an illegitimate
child and the mother of an illegitimate child to
succeed on intestacy of the other as if he had
been born legitimate/ she had been the only
surviving parent.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 ADOPTION ACT, 1952
• Section 9 (legitimation of child by way of adoption):
provides that upon an adoption order being made by
the court, all rights, duties, obligations and liabilities
of the parent or parents, guardian or guardians of the
adopted child, in relation to the future custody,
maintenance and education of the adopted child shall
vest on the adopter as though the adopted child was
born to the adopter in lawful wedlock.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
• Section 31: Adoption Act does not apply to any person who
profess the religion of Islam (Muslim cannot adopt any child
under the Act and non-Muslim cannot adopt Muslim children
under the same)

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 DIFFERENCES BETWEEN ADOPTION
ACT 1952 (AA) & REGISTRATION OF
ADOPTION ACT 1952 (RAA)
• Application
– AA- does not apply to any person who professes the religion of Islam.
(section 31)
– RAA-it is applicable to Muslims and non-Muslim. Applies in West
Malaysia only (section 1(2).
• Age of applicant
– AA- Applicant/ one of the applicant (in a joint application) must have
attained the age of 25 years and is at least 21 years older than the child.
If the adopter is a relative, he must have attained the age of 21 unless
the court is satisfied that there are special circumstances for the making
of an order [section 4(1)(a)].
– RAA- Applicant/ one of the applicant (in a joint application) must have
attained the age of 25 years and is at least 18 years older than the child.
If the adopter is a relative, he must have attained the age of 21 (section
10).

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
• Age of the Child
– AA- the child must be less than 21 years of age and can be
a male, female or female divorcee.(section 2)
– RAA- the child must be under the age of 18 years and had
never been married (section 6(1).
• Sex of Applicant
– AA- an adoption order cannot be made in any case where
the sole applicant is a male and the child in respect of
whom the application is made is a female, unless the court
is satisfied that there are exceptional circumstances which
justify as an exceptional measure the making of an order
(section 4(2)).
– RAA- the Act is silent on this.
Azhani Binti Arshad Law 581(Jul-Nov 2009)
 CONT…
• Effect of Adoption
– AA- the child becomes the legitimate child of the adopter (section 9(1).
Therefore the legal link between the child and the natural parents is
severed.
– RAA- the Act does not confer on the adopted child the status or the
rights of a natural son or daughter. Therefore the legal link between the
child and the natural parents is not severed.
• Prohibited Degrees of Marriage
– AA- an adopted child is prohibited from marrying his or her foster
sister or brother who are children of his previous adopter, as well as his
or her foster sister or brother who are children of his subsequent
adopter. The adopted child also cannot marry his previous adoptive
parent or his current adoptive parent. (section 9(7)).
– RAA- the Act is silent on this.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
• Requirement of Continuous Care and Possession of the
Applicant
– AA- the child is in the care and possession of the adopter for a period
of 3 consecutive months immediately before the date of application.
(section 4(4)(a).
– RAA- the child is under the care and custody of the adopter 2 years
continuously before the date of the application (section 6)

• Tan Kong Meng v Zainon Md Zain [1995] 3 MLJ 408

• Facts: since the child was 3 months old, she has been cared by a Malay
couple and the Registrar of Adoptions exercised her discretion and
dispensed with the consent of the father. However, since the Malay couple
could not prove that they had been maintaining the child all the while, the
court held that the registration was void ab initio.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
• Consent of Parents or Guardians
– AA- An adoption order shall not be made except with the consent of the parent
or guardian or who is liable to contribute to the support of the child. (section
5(1)).
• However the court may dispense with the consent if satisfied:-
– That he has abandoned, neglected or persistently ill-treated the child;
– That he has persistently neglected or refused so to contribute;
– The person whose consent is required cannot be found or is incapable of giving his
consent or that his consent is unreasonably withheld; or
– That any competent authority has given permission or granted licence authorising the
care and possession of the child to be transferred to the applicant
– Re Baby M [1994] 2 MLJ 635
– RAA- the parent or parents or if both the parents are dead or if neither of the
parents is within West Malaysia, any guardian of the child shall appear before
the Registrar and express consent to the adoption (section 6(1)(b))
• provided that the Registrar is satisfied that it is just and equitable and for the
welfare of the child that he may dispense with the consent or appearance of any
parent or custodian who shall have signified his consent by statutory declaration.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

 CONT…
• Requirement of Consent of the Other Spouse in the
Application of Adoption by one of two spouses.
– AA- …and an adoption order shall not be made upon the application of
1 2 spouses without the consent of the other of them. (section 5(1)).
• However the court may dispense with the consent if satisfied:-
– The person whose consent is required cannot be found or is incapable of giving
his consent or that his consent is unreasonably withheld; or
– That any competent authority has given permission or granted licence
authorising the care and possession of the child to be transferred to the
applicant
• Section 5(2) provides that the court may dispense with the consent of the
spouse if the court is satisfied that the person whose consent is to be
dispensed with cannot be found or is incapable of giving such consent or
that the souses have separated and are living apart and that the separation
is likely to be permanent.
– RAA- the Act is silent on this.

Azhani Binti Arshad Law 581(Jul-Nov 2009)

Azhani Binti Arshad Law 581(Jul-Nov 2009)