CHAPTER ONE

INTRODUCTION

 Generally, the law makes a distinction between a legitimate child and an illegitimate child as illegitimate that’s a child born out of wedlock is a child born in a marriage is a legitimate child and has legal rights over the name of the father and interest over the property of the father.

An illegitimate child on the other hand has no right over his father’s name unless the child has been recognized by law by the father.

This chapter will look at the Background of the study, statement of the problem, aims, and objectives of the study, research methodology, area and scope of the study, justification, significance of the study, and definition of key terms.

1.2 Background Of The Study

An invalid marriage may be void or voidable. The distinction between these is of great importance. A void marriage is one that has never been in existence, such a marriage is void and the parties thereto have never acquired the status of husband and wife.

Avoidable marriage on other hand is one that is good while subsisting but may be annulled at the instance of one or both parties owing to some existing defect.

A party to a voidable marriage cannot simply bring it to an end as the marriage can only be annulled by a court of competent jurisdiction. In a case of a void marriage, it is not necessary to obtain a court decree because the parties have not been husband and wife.

This simply means that children born of a void marriage are illegitimate, while those born of a voidable marriage are legitimate. The popular distinction between void and voidable marriages was stated by Lord Green in the case of “De Reneville V De Reneville”.

In Cameroon, there are two types of marriages: monogamy and polygamy. Marriage in the country will be held valid if the following conditions are present, that is capacity, formality, and consent.

The absence of all this will make the marriage void. Section 52(4) of ordinance No. 1981 states clearly that lack of consent will render the marriage void. In the case of minors section, 62(2) will apply.

Furthermore, underwritten law, a marriage will be rendered voidable on any of the following grounds:

Due to lack of consummation. The matrimonial clause Act of 1983 states that a marriage shall be voidable if it is not consummated as a result of the incapacity of either of the spouses to do so……

Consummation here implies to sexual intercourse after the sublimation of the marriage.

Premarital sex does not answer this question as was the case in “Dredge V Dredge”. It is worth noting that where a child is born by any artificial means, the act of intercourse being absent, the marriage will not be deemed to have been consummated

However, the above positions are looked at differently with the coming of the family law reform act which now stipulates that where the parties are married and the husband gives his consent to the insemination, such a child “ shall be treated as the child of any other person than the parties to the marriage “ the above-cited law will bring a problem of interpretations in Cameroon because section 34(1) of the 1981 ordinance inter alia requires that the birth certificate shall state the full names, age, occupation and place of residence of the father and the mother.

Based on ordinary rules of construction, should a husband permit this and the civil status register be aware, shall both be liable for perjury, and accomplice respectively. The solution to this will be the application of section 34(2) of the same law.

More so, under the common law, a child born out of wedlock was regarded as “filus nullius” and had no protection by law on his legal relationship with his father or mother. It was assumed that such a legal relationship did not exist and such a child was automatically cut off property.

The common law had been very firm on this issue of illegitimacy that it even refuse to accept that a child could be legitimate by the subsequent marriage of the parents .

There has been a great deal of change in England culminating in the legitimacy act of 1976, but this is all post-1900 legislations and as such do not apply in former West Cameroon only the relevant provision of the matrimonial causes act 1987 and the family law reform act 1987 being acts of parliament concerning matrimonial causes apply in Anglophone Cameroon, together with the 1981 ordinance.

Tremendous strides have been made in the family law reform act 1978 to wipe out the stigma that usually accompanies the status of illegitimacy.

Even the 1981 civil status registration ordinance expressly provides that where the information relating to the father or mother is not known, corresponding items on the birth certificate shall be left blank and equally warns that on no account should it be mentioned that the father is not known

In Cameroon, the question of whether a husband or wife is competent to give evidence of non-access aimed at bastardizing a child born during a valid subsisting marriage was been argued that such evidence should not be admissible for being contrary to morality and decency.

This view has been enacted in the evidence act of 1943 in section 14. From the above paragraphs, one would clearly see that where a child would be term legitimate or illegitimate and their rights as no succession of the property will depend on the status of the marriage where it was validly constructed (void or voidable).

1.4 Statement Of The Problem

Relationships leading to unwanted pregnancy warrant this research. Nowadays more than usual, it is commonplace for married spouses to engage in extra material love affairs leading to the birth of children which are usually not recognized by the man due to the fear of ruining their marriage, leaving the innocent child or children to bear the consequences necessitate such research.

Again this study is equally undertaken in partial fulfillment for the award of the Bachelor’s Law Degree of the University of Buea.

1.5 Aims and Objectives

The aim of this research is to examine the rights of illegitimate and legitimate children in Cameroon.

1.6 Objectives 

1. To explore the laws governing the inheritance of children in Cameroon
2. To make an appraisal of the rights of a legitimate and an illegitimate child under Cameroonian Law.
3. To examine the possible effects of as a result of a child being tagged illegitimate and legitimate.
4. To make convulsions and possible recommendations.

1.7 Research Methodology

The research in law is sui generis, the research adopts the doctrine research methodology which is analytical and qualitative in nature. Sources of data for this study include both primary and secondary sources of information. Primary sources of data are obtained from case law, statute, and other legal instruments. Secondary data sources include published books, websites, etc.

1.8 Scope Of The Study

This research works focus on the rights of legitimate and illegitimate children in Cameroon. However Its touches only on international instruments duly rectified by Cameroon.

1.9 Justification Of The Study

Now our days it is common practice for youths to engage in premarital intercourse or engage in ‘came we stay practices’ which leads to the birth of children out of wedlock and innocent children are left to suffer the consequences of their parents. This, therefore, warrants research of this nature.

1.10 Synopsis Of Chapters

This work is divided into 4 chapters, chapter one deals with a general introduction comprising of background to the study, statement of the problems, and other general terms related to the topic.

Chapters two dwells on the legal instruments which guarantee the rights of legitimate n illegitimate children in Cameroon

Chapter 3 consists of an appraisal of the rights of legitimate n illegitimate children. It also examines possible consequences flowing from these rights

While chapter four makes conclusions n possible recommendations.

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