Aust Family Law

[myWish]

I notice that there are many Oz in this forum. Just hope to get some advice about Australain Family Law.

I have a child born outside marriage, he's 16 years old now. The father of my child is now a widow about 3 years now. He has one adopted girl and IVF girl born to his late wife.

My question is if I marry the father of my child, would that make him a legitimate or not? And if I marry to someone else, and if he adopts my child, would that make him a legitimate child or not? Is my child has a better right to his father's will than an adopted child?

[Chang_paarp]

I notice that there are many Oz in this forum. Just hope to get some advice about Australain Family Law.

I have a child born outside marriage, he's 16 years old now. The father of my child is now a widow about 3 years now. He has one adopted girl and IVF girl born to his late wife.

My question is if I marry the father of my child, would that make him a legitimate or not? And if I marry to someone else, and if he adopts my child, would that make him a legitimate child or not? Is my child has a better right to his father's will than an adopted child?

A child born out of wedlock is "illegimate" at the time of birth, no acts of the parents later will change this. Your use of the word "legitimate" here is an antiquated concept.

Under Australian law the child has no different rights if the parents are married or not.

The idea of anyone adopting a 16 year old child will have some interesting challenges in the courts. The court will ask the child what they want, and it will be the decision of the child that the court will act on and not any other person or expensive lawyer.

Further there is no point of the natural father adopting the child, unless he is not listed as the father on the birth certificate or other documents. If you go down this path and the father has not been listed as the father, and has not paid child support for the life of the child, he can expect a very unpleasant discusion with the Child Support Agency that will include a backdated bill plus interest and fines. This bill does not go away when you declare bankrupcy.

AS to rights to the natural fathers estate, all children have a similar right to claim against the estate whether they are legitimate, illegitimate or adopted as do wives, lovers, de-facto wives and any other creditors. The thing that can change the balance here is a will. If the father has written a will and for example says that he leaves 95% to one child and the remaining 5% to be split amongst the other children and wives, then that is the way things will go unless some one contests the will. This is an expensive and time consuming process. You had better make sure it is worth the fight. These are the sort of cases that help pay for the new 250SLC Mercedes for the lawyer's wife.

I hope this helps.

[myWish]

Thanks so much.

However, you haven't answer whether or not if my future husband (although I don't have any prospect) adopts my child will make him legitimate. If my child says ok, that is. But I guess from what you say, there is no chance that his status would change after being born.

Could you also kindly advise what are the consequences of being illegitimate in terms of legal and if possible social.

What would you do if this happened to you, would you marry to his father anyway just to show that you're married to the child's father? (I might have to beg him to do this)

I'm really desperate. I may not have long to live so just want to do the best for my child before I go.

Edited June 15, 2006 by myWish

[Khutan]

Is the main issue the guardianship of your child ?

Personally, these days if a child is born out of wedlock has little social effect.

[Chang_paarp]

Thanks so much.

However, you haven't answer whether or not if my future husband (although I don't have any prospect) adopts my child will make him legitimate. If my child says ok, that is. But I guess from what you say, there is no chance that his status would change after being born.

Could you also kindly advise what are the consequences of being illegitimate in terms of legal and if possible social.

What would you do if this happened to you, would you marry to his father anyway just to show that you're married to the child's father? (I might have to beg him to do this)

I'm really desperate. I may not have long to live so just want to do the best for my child before I go.

As I said in my first paragraph, the child is illegitmate at birth. The concept of "illegitimate" has gone for many years. There is no social or legal stigma, as over 30% (closer to 50%) of children are born in Australia to parents that are not married. ie illegitimate. Adoption does not make a child legitimate. Also read what I said about adoption in my first reply.

The issue is whether the father has acknowledged the child as his. Is the father on the birth certificate? If like several of my ex-wifes nephews and nieces they have father unknown on the birth certificate, there is little legal recourse without a paternety suit. This involves DNA testing of both parents. The family court will then order the birth certificate changed if it proven that a new person is the father. I have seen this happen in the Family court.

If you want accurate answers please give an honest summation of the situation. Include where you are,

where child is and

where the father is and his nationality.

Who is listed on the birth cert.

[myWish]

Is the main issue the guardianship of your child ?

Personally, these days if a child is born out of wedlock has little social effect.

No. this is not about guardianship. I just want him to be normal as everyone else. But seems impossible now.

[myWish]

As I said in my first paragraph, the child is illegitmate at birth. The concept of "illegitimate" has gone for many years. There is no social or legal stigma, as over 30% (closer to 50%) of children are born in Australia to parents that are not married. ie illegitimate.

I don't think your stats is correct. From child care places to high school, he has been the only one child with unmarried mother.

The issue is whether the father has acknowledged the child as his. Is the father on the birth certificate?

If you want accurate answers please give an honest summation of the situation. Include where you are,

where child is and

where the father is and his nationality.

Who is listed on the birth cert.

I do not wish to identify my child, but believe me I am a bloody honest person.

We're living in Sydney, his father is Aussie and he is named as a father after I allowed doing DNA test before he was born. I do not wish to expose myself, thus exposing my son too, but I am not Australian (non-white). Now stop before you think that I wanted to stay in this country by allowing myself to get pregnant. It was because I was stupid and naïve coupled with his selfishness. I wasn’t young when I fell pregnant but I was lonely, had no one to talk to, and had hugh difficulties living in this country in the first few months. That’s how it started in the first place.

Anyway, cut the long story short, the father comes to see his son every now and then. The relationship is o.k. but not as good as it should be. So I guess my biggest concern is how I make him feel like he is as good as his friends. As I mentioned above, he has never had any friends whose mothers are single. They all have family with mum and dad and at least two siblings.

[GuestHouse]

I presume your child holds Australian Citizenship, if so he has the same rights as all other Australians. If there is any question regarding his citizenship, then I suggest you take legal advice on how to address helping him gain his Australian Citizenship.

I do not believe for one moment that your child will be discriminated against on the grounds that he is raised in a single parent family, the stigma you perceive is, I would suggest, just that, a personal perception.

You state that you believe you do not have long to live, and earlier have discussed your child’s father’s will. It seems, and forgive me if I am wrong, that your concern is the welfare of your child in the event of your death.

There is no one answer to that problem. If you are suffering illness/old age, then I would suggest you ask your doctor to arrange for you to speak to a councilor regarding your concerns. You may wish to discus the possibility of involving your child’s father in helping you address your child’s future, but accept that he may not wish to be involved or his involvement may be conditional of his own legitimate concerns and terms.

That I would suggest is a matter of discussion for which you may need help. Certainly if your health/age is at the root of this issue then I would urge you to seek the help you need to have these discussions before you consider marrying your son’s father.

Marrying your son's father, or indeed anyone for that matter, as a means of resolving your own concerns strikes me as the kind of decision made through immaturity of which you spoke earlier. Moreover, it very likely will not achieve the ends you desire.

Edited June 16, 2006 by GuestHouse

[myWish]

Thanks Guesthouse, we don’t have citizenship problem. We’re here legally. I guess you might be right, it’s my perception that he would suffer some kinds of stigma. After watching several documentaries including movies, some people do say something bad and hurtful about being born out of wedlock. This has been in my mind for quite some time but had no one to turn to.

Ahem, I’m not that old. Remember my son is only sixteen. I wasn’t get pregnant at fifty years old! I can still turn heads – after dark though. I’m just not in good health and yes, I have grave concern what would happen to my son when I’ve gone. If that happens after he finishes uni studies, that would be more relieve. His father doesn’t value education so I fear that without me he would not be able to go to uni. There is no one I can discuss with; I don’t have my family here, only me and the boy.

I now know that there is nothing I can do to change his status so the thought of marrying anyone is off. Thanks guys.

[Dragonman]

I notice that there are many Oz in this forum. Just hope to get some advice about Australain Family Law.

I have a child born outside marriage, he's 16 years old now. The father of my child is now a widow about 3 years now. He has one adopted girl and IVF girl born to his late wife.

My question is if I marry the father of my child, would that make him a legitimate or not? And if I marry to someone else, and if he adopts my child, would that make him a legitimate child or not? Is my child has a better right to his father's will than an adopted child?

A child born out of wedlock is "illegimate" at the time of birth, no acts of the parents later will change this. Your use of the word "legitimate" here is an antiquated concept.

This is not correct. There are Legitimation Acts going back to the 19th century in many Australian States! On marriage to the childs father it is possible to apply for legitimation. Seems a bit desperate to marry someone to have a legitimate child however. Let me know the State you reside in and I may be able to provide further information.

The Family Law Act 1975 would prescribe any child you had out of wedlock as a "child of marriage", if you marry the father.

[myWish]

Oh! Is that so? We're living in NSW.

Looking forward to your reply.

Edited June 16, 2006 by myWish

[Chang_paarp]

As I said in my first paragraph, the child is illegitmate at birth. The concept of "illegitimate" has gone for many years. There is no social or legal stigma, as over 30% (closer to 50%) of children are born in Australia to parents that are not married. ie illegitimate.

I don't think your stats is correct. From child care places to high school, he has been the only one child with unmarried mother.

The issue is whether the father has acknowledged the child as his. Is the father on the birth certificate?

If you want accurate answers please give an honest summation of the situation. Include where you are,

where child is and

where the father is and his nationality.

Who is listed on the birth cert.

I do not wish to identify my child, but believe me I am a bloody honest person.

We're living in Sydney, his father is Aussie and he is named as a father after I allowed doing DNA test before he was born. I do not wish to expose myself, thus exposing my son too, but I am not Australian (non-white). Now stop before you think that I wanted to stay in this country by allowing myself to get pregnant. It was because I was stupid and naïve coupled with his selfishness. I wasn’t young when I fell pregnant but I was lonely, had no one to talk to, and had hugh difficulties living in this country in the first few months. That’s how it started in the first place.

Anyway, cut the long story short, the father comes to see his son every now and then. The relationship is o.k. but not as good as it should be. So I guess my biggest concern is how I make him feel like he is as good as his friends. As I mentioned above, he has never had any friends whose mothers are single. They all have family with mum and dad and at least two siblings.

I was not looking to identify you. I was trying to build a picture of your situation.

Re "illegitmate" children or "exnupial" as it is listed in the following quote from here on the ABS web site, you will see that my figures are within the range;

In 2004 there were 172,500 nuptial births in Australia, representing 67.8% of all births decreasing from 74.4% in 1994. Victoria had the highest proportion of nuptial births of all states and territories (73.2%), followed by the ACT (72.2%) and NSW (71.5%). The proportion of exnuptial births was greatest in the Northern Territory (64.3%) followed by Tasmania (46.3%).

If you think your son had so few friends with parents that are not married, you are probably in for a surprise. There are many couples who live together, raise families and have happy lives that are not married to each other. If you look into the figures you will find about 20% of the population never marry in Australia.

Also given that the effective divorce rate is over 30% dropping from a peak of over 50% in about 1978 folowing the introduction of the Family Law Act, I would be very surprised if you son has never had friends from single parent families. It is common in all stratas of society.

I stand corrected over the Legitimisation Acts, I will defer to greater knowlage.

Your concerns in for your son are only going to create stress for you and him, they will have little impact on his life in modern society. If, as you say, you have health concerns of your own, you should be putting your energy towards your own well being and maintaining a positive attitude.

Take care.

[myWish]

Thanks, CP.

But if it's normal, why women who fall pregnant have to get married before the child is born, if they can?

But thanks anyway. I hope evryone's opinion is right, no stigmatise attached.

[Dragonman]

Oh! Is that so? We're living in NSW.

Looking forward to your reply.

Legitimation is available in New South Wales under the New South Wales Legitimation Act 1902, as amended by the Commonwealth Marriage Act 1961. This amendment allowed children to be legitimated even if there was a legal impediment to marriage at time of birth. Basically you may back date the legitimacy to date of birth any time after the marriage. The necessary literature and forms may be obtained from your local Registrar of Births, Deaths & Marriages.

Good Luck.

[myWish]

Thanks, Dragonman. I'll find more info to make sure it can be done before I beg him to do it. Thanks, you saved my life.

[Chang_paarp]

Thanks, CP.

But if it's normal, why women who fall pregnant have to get married before the child is born, if they can?

But thanks anyway. I hope evryone's opinion is right, no stigmatise attached.

This is only in 1950's movies. It had some social fact untill the 1970's but is rarely practiced in most liberal western cultures. There are some cultures that have this stigma but not Australia. Usually the stigma falls on the woman as being "of loose morals" . It did not prevent Leonarda Da Vinci becoming a very prominant person in his time.

Here is a list of well known illegitimate people from Wickipedia ;

Leone Battista Alberti

Jean le Rond d'Alembert

Layne Beachley

Sarah Bernhardt

Cesare Borgia

Lucrezia Borgia

Fidel Castro

50 Cent

Eric Clapton

Edward Gordon Craig

Eamon de Valera

Jean de Dunois

Desiderius Erasmus

Magda Goebbels

Alec Guinness

Alexander Hamilton

Keir Hardie

John Hatt

Alois Hitler (Adolf Hitler's father)

Eartha Kitt

T.E. Lawrence

Violette Leduc

Leonardo da Vinci

Anni-Frid Lyngstad

Ramsay MacDonald

Imelda Marcos

Eva Perón

Shaka

James Smithson

Henry Morton Stanley

William the Conqueror

[myWish]

Thanks CP for your info. I'm convinced. And you're right, those terms are not used anymore (see below).

Anyway, I've received a response from the department and wish to post it here for references.

And I wish to thank everyone here who give me guidance and advice.

Here is the response:

We will consider an application to include the subsequent marriage details being added to the child's birth record.

Please return of the original Birth certificate together with

a written amendment request to add the marriage details

copies of at least 3 forms of ID from yourself or the father

a copy of your marriage certificate

payment for a new certificate

Information regarding the correction of certificates can be obtained from www.bdm.nsw.gov.au/amend/amend.htm

I wish to advise that the terms

legitimate,

legitimacy and

legitimation

are not used in the Births, Deaths and Marriages Registration Act 1995 No 62 (see definitions) .