CHAPTER VIII.

STATUS OF LEGITIMACY AND ADOPTION.

§ 97. Legitimacy and Adoption Instances of Double Status. We have seen that in the case of marriage, the status created is of a double or correlative character. The status of husband cannot exist without the status of wife also. So it is with a parent and an infant child. It so happens however that in these cases the duality of the status is generally immaterial, so long as the relation continues. No conflicts of the "proper law" will usually occur, because the domicil of the wife and of the infant child are in most cases identical with the domicil of the husband and parent, and hence the same law will in general govern the status of both.

No questions of the conflict of laws will be ordinarily likely to arise in regard to the relation of parent and child, both for the reason above given and for the further reason that the laws governing that relation are pretty much the same the world over. Occasionally, however, cases arise in which this simple relation must be subjected to the principles of private international law.1

Nor with respect to the marital relation and its incidents will the duality of the status of husband and wife in general play a prominent part, so long as the marriage remains intact, for the reason above given. It is only when the matrimonial union is sought to be dissolved by divorce, when the interests of husband and wife become antagonistic, that they acquire separate domicils, and the situs of their respective status become distinct. Then the duality of the status becomes embarrassing, as has been shown in the last chapter.

1 Instances of this kind have been already discussed. See ante, §§ 83, 96.

There are still other instances of double status, two of which at least deserve special attention. These are the status of legitimacy and of adoption. Whether one is the legitimate child of a person involves necessarily the status of the parent as well as that of the child. So it is also in the case of a legally adopted child. In these cases, it is not only the status of the child which is to be determined, but incidentally and necessarily that of the parent also. These instances of double status differ from the relation of husband and wife and from that of parent and child, in the important point that it is not necessarily the case, in legitimacy and adoption, that the domicil of the child and parent should be identical. This fact complicates the situation greatly. In such cases therefore, granting the general principle that the law of the legal situs or domicil of the parties governs their status, the question may still arise, the law of whose domicil? Shall it be the law of the domicil of the parents or one of them, or the law of the child's domicil? The status of all is in doubt. In investigating these questions, one or two general principles must be constantly borne in mind.

Both legitimacy and adoption are instances of permanent and universal status (as opposed to that which is merely temporary and local, as in the case of guardianship, etc.). It would be in the highest degree inconvenient if a status of this sort, once established, were liable to fluctuation and change with time, place, or circumstance.2 Hence, when these relations are once established by "the proper law," they remain in general fixed and unchangeable, into whatsoever countries the parties may wander, or wheresoever the question may arise, subject only (in rare cases) to the exceptions enumerated in the second chapter.

It is a corollary of this principle that it is the proper law at the time of the act or circumstance upon which is based the claim of legitimacy or adoption, that is to determine the status. For since the claim is based on the act or circumstance in ques

2 See Miller v. Miller, 91 N. Y. 315, 319, 43 Am. Rep. 669.

8 Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87; Miller v. Miller, 91 N. Y. 315, 319, 43 Am. Rep. 669; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Adams v. Adams, 154 Mass. 290, 293, 28 N. E. 260.

tion, and since, if such act or circumstance does by the proper law create the status, that status will be permanent and unchangeable, it must follow that the law at that time properly applicable must determine finally the effect of the act or circumstance upon the status of the persons concerned.1

The question still remains, what is the "proper law” in these cases? Is it the lex domicilii of the parents, of the child (supposing his domicil to be different from that of his parents or of either of them), or of both? If it is urged that the status of the parent is affected, and that the law of his domicil should govern, it might be replied that the child's status is as much, if not more, affected, and that therefore the law of his domicil should control. Very complicated questions sometimes arise in these

cases.

Child Born in Wedlock.

§ 98. Legitimacy Legitimacy may exist from birth, or it may arise subsequently from a supervenient cause. With respect to the legitimacy of a child born in lawful wedlock, of course no question will arise, since every system of law that recognizes marriage regards such a child as legitimate. Indeed one of the principal designs of the estate of matrimony is to secure certainty of parentage and the legitimacy of children.

The only question apt to occur here is with regard to the validity of the marriage, and the effect of its invalidity upon the legitimacy of the issue.1

At common law, if the marriage is void per se or declared void by a competent court, the issue is bastardized. But in many States, statutes have been passed abating the rigor of the common law in this respect, and declaring the issue of such marriages legitimate. It is important to ascertain what effect such statutes will have upon the status of the children of void or voidable marriages, when the question arises in a foreign State.

♦ See Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87.

1 The proper law governing the validity of marriage has been already dealt with, both with respect to the capacity to marry (ante, §§ 73 et seq.), and with regard to the formal and substantial validity of the marriage contract. Ante, §§ 77, 78. See Greenhow v. James, 80 Va. 636; Adams v. Adams, 154 Mass. 290, 292, 28 N. E. 260.

The general rule being that the law of the domicil regulates the status, if the father, mother, and child are all domiciled at the time of the child's birth in the same State, the law of that State will fix the status. It is the law of the domicil at the time of the child's birth which controls, for the claim of his legitimacy is based upon the circumstance of his birth in wedlock (though unlawful).

A much more difficult question might arise, if the mother's domicil is different from that of the father at the time of the child's birth, should there be a conflict in the laws of the two domicils upon this point. The first question would be as to the child's domicil in such case. Will it follow the domicil of the

2

father or that of the mother? To hold that it takes the father's domicil would be to assume that it is a legitimate child, the very point in dispute. It would seem that the child's domicil must be held to follow that of the mother, until it is decided by the proper law to be legitimate.

The next question is, what is the proper law to determine whether the child be legitimate? The child is legally domiciled with its mother, and the State of their domicil will control their status, while the status of the father, as being a legal or only a putative father, must be regulated by the law of his domicil. No law of one State affecting the status of those domiciled there can run into another State and affect the status of the latter's citizens. The embarrassment of the situation is easily recognized. There are no authorities to guide us upon the point, and any conclusions drawn must be largely speculative.

The true solution would seem to depend upon the locality of the forum and the nature of the particular question involved. If the case arises in the father's domicil, the courts of his domicil will probably follow their own law in passing upon the status, especially if it is the relation the child bears to the father which is in controversy. If the mother's domicil is the forum, its courts also will probably follow the domestic law, especially if

2 If a marriage is void per se, or avoided ab initio by a competent court, it might well happen that the woman's domicil at the date of the child's birth is distinct from the man's, if they actually reside in different States. See ante,

Should the ques

the child's relation to the mother is in issue. tion come up in the courts of a third State where none of the parties are domiciled, it is probable, upon principles mentioned in the succeeding sections, that the courts, out of tenderness to the child, will recognize his legitimacy, adopting the law of the father's domicil or that of the mother and child, according as one or the other advances this benevolent purpose.*

§ 99. Subsequent Legitimation

- Intermarriage of Parents of Infant Bastard. The laws of different States vary touching the subsequent legitimation of bastards. At common law no supervenient act could legitimate one not born in wedlock. But the civil or Roman law permitted it, and now in most of the States of this Union such legitimation is allowed by statute. Even amongst those States which permit it, however, differences exist with respect to the mode of accomplishing it. By the municipal law of some States a subsequent intermarriage of the parents standing alone will effect this result; in other States, the father's acknowledgment alone suffices; and in others there must be both an intermarriage and an acknowledgment by the father.

In all cases where the intermarriage of the parents precedes or accompanies the alleged legitimation of an infant bastard, there is no difficulty in ascertaining the domicil of the parties. For as soon as the father marries the mother, his domicil becomes hers also, and the domicil of the infant bastard changes with hers and also becomes that of the husband.1 Whether the intermarriage alone or the intermarriage followed by acknowledgment is necessary to legitimate the issue, the result is the all the domicils coincide and are identical with that of the father. We have already seen that "the proper law" to determine legitimation is the law of the domicil of the parties at the time of the act upon which is based the claim of legitimacy.2 In this case this act is the intermarriage of the parents (or the

same;

For the principles applicable to cases of this sort the reader is referred to the discussion, post, § 100.

1 See ante, § 42. If the bastard is an adult, his domicil is of course unaf. fected by the intermarriage of his parents.

• Ante, § 97.