Disclaimer: This is not a legal advice. It is for education
As a society, we often structure families around marriage. But real life is messier. Children are born before marriage, during marriage to different partners, or in relationships outside any formal union. In Nigeria, that reality has triggered bitter disputes especially when a parent dies without a will and property is at stake. This short article seeks to educate Nigerians born out of wedlock on their rights over their father’s properties.
The core question here is “Do children born out of wedlock have the same right to inherit as children born within marriage? “Under current Nigerian laws, the answer is YES.
What “born out of wedlock” means:
A child is born out of wedlock when the parents were not validly married under Nigerian law at the time of birth. That includes children from pre-marital relationships, extra-marital affairs, or a second “marriage” that the law does not recognize. The two types of marriage in Nigeria are marriage under the act (Matrimonial Causes Ac Cap. M7, Law of the Federation ,2004) which is monogamous or any other marriages not under the Act which can be monogamous or polygamous.
The Marriage Act vs Customary marriage matters
A marriage under the Marriage Act is monogamous. Section 35 of the Act bars a person married under the Act from contracting any other valid marriage under customary/religious law while the marriage subsists. Any such second marriage is void. Section 47 of the Act makes it a criminal offence punishable by up to 5 years imprisonment. A good example is if a man married under the Act, then later married traditionally while the first marriage still existed, if Both unions had children and the man dies intestate the question is if the children from the two marriages can inherit from the man’s properties. The answer is yes. The marriage to the second woman is void but the children are legal. There is nothing like ILLEGAL CHILD again in Nigerian Law. Every child born to a man in Nigeria is legitimate so long as there is proof that the man fathered the child.
Nigerian laws now reject discrimination based on birth status.
1999 Constitution, Section 42(2): “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.” That provision directly outlaws any custom or practice that denies inheritance because a child was born outside marriage. The Supreme Court of Nigeria affirmed it in Ukeje v. Ukeje (2014) LPELR-22724(SC): The Supreme Court declared unconstitutional the Igbo customary law that barred female children from inheriting their father’s estate. The Court held that any custom conflicting with Section 42(2) of the Constitution is void. The same logic applies to children born out of wedlock.
The court also in Mgbodu v Mgbodu (2018) LPELR-43770(CA) stated that “No child came into the world by himself or herself. So why should such a child be put at a disadvantage because of the conduct of a randy father and a promiscuous mother?” See also: masers A. Younan & Sons v. Lawal & Ors (1961) LPELR-25073(SC).
_Bamgboshe v. Daniel (14 W.A.C.A. 111), Alake v. Pratt (15 W.A.C.A. 20
Other International laws that support this which has been domesticated in Nigeria are:
- Universal Declaration of Human Rights, Art. 1 & 17: All humans are born free and equal in dignity and rights. Everyone has the right to own property and shall not be arbitrarily deprived of it
2: African Charter on Human and Peoples’ Rights, Art. 3(1) & 14: Every person is equal before the law. The right to property is guaranteed.
However, for these laws to be activated, Paternity must be established. This can be express by the parent having publicly acknowledged the child or impliedly through conduct, maintenance, school fees, giving the child his name, etc. Note also that in some cases where a father while alive refuses to acknowledge paternity of the child or children, the child can approach the high court of the state if he/she is over 18 years while the mother or guardian can do same if the child is under 18, to ask the court for determination of paternity/ identity of the child. The court can order for DNA test. Courts in Nigeria now order DNA/paternity tests under the Evidence Act 2011, Section 68. The Supreme Court has affirmed DNA as a credible means of determining paternity in Ukeje v Ukeje (2014) 11 NWLA pt 1418 p 384. If the man refuses to submit to DNA, the court cannot force him but will draw an “adverse inference and assume he’s the father of the child in question.
See: Mba v. State (2015) LPELR-40790(SC),
Nwafia v Ububa (2020) LPELR – 51292 ( CA).
The court can also look at other evidences like Photos, messages, witness testimony, school fees receipts, gifts, how the man introduced the child, etc. See: Olaniran v fatimoh (1986) NWLR pt 27 p 198, Agbai v Okogbue (1991) 7 NWLR pt 204 p 391. In these cases, the fathers denied paternity but court looked at what has happened and held they are the fathers.
Once the child/children paternity is established while the father is alive, the child’s rights to maintenance Under the Child Rights Act 2003, Section 14 can be activated. The child can also bear the father’s name while the child’s right to inheritance is guaranteed.
PROPERTYGROOM therefore advises men and women who have children outside the wedlock to write their WILL to accommodate all the children. Ensure you are properly guided to avoid your voice from the grave being challenged.
Be bold enough to acknowledge your paternity while you are alive. Experience shows that most parents fear to do this in other to protect their marriages.
For the persons born out of wedlock, assert your rights as the law has given you full protection. If the person involved is a child, the mother or guardian can activate this right. It is better to do that while the man is alive.
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