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A case on legitimacy in 2019

I suspect that the vast majority of the population would think that the whole idea of a child being ‘illegitimate’ had long since been consigned to the dustbin of history. Surely, we are no longer concerned with such an archaic concept that discriminates against a child simply because his or her parents were not married when they were born? Well, it seems that we are still concerned with such things, according to a recent High Court case.

OK, the case actually turned on the construction of a clause in a trust deed, but still the issue in the case arose out of the fact that one of the great grandchildren of the Settlor (i.e. the person who set up the trust) was born ‘out of wedlock’ (even using that expression feels wrong!).

The case was PQ & Another v RS & Others, decided by Chief Master Marsh in the Chancery Division of the High Court on the 4th of July. It concerned a trust set up in 1968 for the benefit of the Settlor’s children and remoter issue (i.e. their descendants) and their respective spouses, widows and widowers. We are told that the assets of the settlement are substantial, having a current value in excess of £80 million.

The trustees of the trust were given power under it “to pay or apply all or any part” of that capital “to or for the benefit of all or any one or more exclusively of the others or other of the Beneficiaries in such manner and to such extent and in such shares and proportions and upon such terms and conditions … and generally in such manner in respects as the Trustees may in their absolute discretion think fit”. The term “the Beneficiaries” was defined to include the child or children and remoter issue of the Settlor then alive, or who shall be born during the lifetime of the trust.

The Settlor had two grandchildren. One of those had no children, but the other had three, one of whom was illegitimate, having been born one month before her parents married. The question was whether she is a beneficiary under the trust, being one of the children of the grandchildren of the Settlor. The trust deed made no mention of illegitimate children, and therefore reliance had to be placed upon the common law rules of construction, which say that a child is legitimate only if they are “born or conceived in wedlock”. Accordingly, this great-grandchild was illegitimate, and therefore could be excluded from the benefit of the trust, simply because she was not born a month later. Yes, dear reader, in 2019 the concept of legitimacy is still relevant.

To cut a longer story short, the matter was resolved by Chief Master Marsh, who concluded that the trustees had the power under the trust deed to vary the trust so as to include the great-granddaughter in the class of “beneficiaries”, which was the course of action that all parties, including both of the grandchildren and the great-granddaughter’s two sisters, wanted to follow (there was also evidence that the Settlor, who had died, also wished her to benefit).

So there we are, a 2019 case concerning the issue of legitimacy. I should point out, however, that such cases are likely to become less and less frequent, as the concept of legitimacy is actually being consigned to history, albeit gradually. In 1969, just one year after this trust was set up, the law was changed to provide property rights for illegitimate children, by introducing a presumption that any reference to a child of a person in a ‘disposition’ (such as a trust deed) was to be construed as including a reference to any illegitimate child of that person. Unfortunately, however, that rule only applied to dispositions entered into after the rule came into effect on the 1st of January 1970, and therefore was not relevant to this case.

There is one other point of interest in the case, which indicates that there is still unfortunately a stigma attached to being illegitimate. The parent of the great-granddaughter asked that the case remain confidential, as they were concerned about her becoming aware that she was illegitimate. The Chief Master agreed to this request.

You can read the full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. JamesB says:

    Illegitimacy remains one of the very few areas where a father has any rights (at all). I.e. they can refuse to give the child their surname, thus reducing their (the child’s) support entitlement and objecting to the way in which they are being excluded from the child’s life.

    The establishment have it they (Hutton 2008) believe (rightly) that a child having his or her father’s surname will make the father more likely to pay child support when asked. The establishment are also right that it does reflect the diminishing of the father’s role and respect paid to him the increase in children not having their father’s surname.

    It is a fair term. People who seek to get rid of it do so as they do not regard marriage as the traditional type, i.e. between a man and a woman, until death do part, to the exclusion of all others, no man put asunder, to raise children. All fair enough, except if you write your own prenups then should be penalised for breaking marriage vows. Seems you don’t agree with any of this John and you want a free for all, which would be more lawyers fees I suppose.

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