LEGITIMACY OF CHILDREN (CANON LAW)

Legitimacy, in its ordinary sense, means that a person has been conceived from a valid marriage. Thus a person conceived or born outside of valid wedlock, or born, but not conceived, of a valid marriage would be illegitimate according to the natural law. This same principle would apply if such a person was conceived and born of a marriage that was thought, at least by one party, to be valid, but in fact was not. However, legitimacy in canon law is not so narrowly defined. The Church broadens the definition by considering as legitimate those born of a union that is thought to be valid but in reality is not.

Definition. Church law considers as legitimate those born or conceived of a valid or putative marriage (Codex iuris canonicis c. 1137). This definition includes not only those naturally legitimate, but also gives a juridic legitimacy to those born of a putative marriage, that is, a marriage thought to be valid by at least one of the parties.

For a marriage to be valid it is required that there existed no invalidating impediment to the marriage, that true matrimonial consent is given, and that the required form of marriage is followed. It must be noted that a marriage is usually not described as putative for a Catholic party if he has not followed the Catholic form of marriage. (see marriage legislation [canon law].)

The church law enumerates certain presumptions. First of these is that the husband of the woman is the father of her child unless the contrary is proved by clear evidence (Codex iuris canonicis c. 1138 1). Another is that a child born at least 180 days after the celebration of the marriage or within 300 days after conjugal life has been dissolved is presumed to be legitimate (Codex iuris canonicis c. 1138 2).

Legitimation of Children. The Holy See may change the status of an illegitimate child and declare him or her legitimate. The reasons the Church might so decree are for the good of the child, the parents, and society. A child is also legitimated by subsequent valid or putative marriage of his or her parents (Codex iuris canonicis c.1139).

There is an additional way of legitimatizing children. Illegitimate persons may become fully legitimate by a radical sanation (Codex iuris canonicis c. 1161; Corpus canonum ecclesiarum orientalium c. 848). A radical sanation is an extraordinary means of convalidating a marriage. It dispenses from impediments, dispenses from the renewal of consent, and, by a fiction of law, the canonical effects of the marriage are retroactive. One of these effects is the legitimation of the offspring. This is legitimation in its fullest sense; it is as if the child were born of a valid marriage. The effect reaches back to the time when the parties first exchanged true matrimonial consent. Thus, any children conceived or born after this first consent are to be considered legitimate.

Effects. Under the 1917 Code of Canon Law, there were several instances where persons who were illegitimate were barred from certain ecclesiastical dignities and offices. Illegitimacy would have prohibited a man from entering a seminary because illegitimacy made him irregular to receive Orders (1917 Codex iuris canonicis c. 984, 1°). An illegitimate man would have also been restricted from the cardinalate (1917 Codex iuris Canonicis c. 232 §2, 1°), the episcopacy (1917 Codex iuris Canonicis c. 331 §1, 1–) and the office of abbot or prelate nullius (1917 Codex iuris Canonicis c. 320 §2). Illegitimate persons could not have been elected to the office of major superior in religious institutes (1917 Codex iuris Canonicis c. 504).

There are no effects of illegitimacy in the 1983 Code of Canon Law. The Church maintains the distinction in canon law, although it has little practical importance.

Bibliography: j. abbo and j. hannan, The Sacred Canons (St. Louis 1960) 2:1114–17. h. a. ayrinhac and p. j. lydon, Marriage Legislation in the New Code of Canon Law (New York 1957) 1114–17. t. l. bouscareen and a. c. ellis, Canon Law (Milwaukee 1957) 1154–60. g. i. mcdevitt, Legitimacy and Legitimation (Catholic University of America Canon Law Studies 138; Washington 1941). t. p. doyle, in j. a. coriden et al., The Code of Canon Law: A Text and Commentary (New York 1985) 810–811. l. a. robitaille in j. p. beal et al., New Commentary on the Code of Canon Law (New York 2000).

[a. swift]