Article II: Concerning the Legitimacy of Children

262. • I. Notion.

a) Legitimacy is the juridical condition of children whose birth is conformable to the prescriptions of the laws.

Legitimacy is distinguished in the ecclesiastical forum and in the civil forum. For someone can be held legitimate by the Church and illegitimate by the civil authority, and vice versa.

Here we shall treat only of legitimacy in the ecclesiastical forum.

b) Legitimation is an act of the law or of the prince, i.e., of the Roman Pontiff, by which an illegitimate child obtains the rights of a legitimate one, either wholly or in part.

263. • II. What things are required for legitimacy of birth.

"Children conceived or born from a valid or putative matrimony are legitimate, unless, on account of solemn religious profession or sacred order received by the parents, the use of matrimony previously contracted was prohibited at the time of conception." (Can. 1144.)

a) Not only those who were conceived from a valid or putative matrimony, but also those who were conceived before matrimony and born after the valid or putative matrimony of the parents, are legitimate by full right.

b) An exception is given which is very rarely verified. For if from two spouses joined by valid matrimony, even consummated, each or either has pronounced solemn vows, or the husband has legitimately received sacred orders, if afterwards, notwithstanding the vow or sacred Order, they have had carnal intercourse, the child born from such intercourse will be illegitimate.

264. • III. Proof of legitimacy.

a) "The father is he whom just nuptials demonstrate, unless the contrary is proved by evident arguments." (Can. 1115.)

1. A child born of a legitimate wife is held by the law as the child of the husband, if the husband does not reject paternity.

2. Even if the husband refuses to acknowledge the child as his own, or the wife confesses adultery, a child of this kind is held as legitimate by the Church until the contrary is proved by evident arguments, as is, e.g., the continuous absence of the husband from the tenth month to the completed sixth month before the birth of the child.

b) Nevertheless the aforesaid presumption has no place, so that the husband can reject paternity, if the child is born before six months from the day of the celebrated matrimony or after ten months from the day of dissolved conjugal life. (Can. 1115, § 2.) In this case the burden of proving legitimacy falls upon the child.

The reason is that scarcely any offspring is born before 180 or after 300 days from conception. If the child is born before six months, he cannot be the husband's except from fornication; if after ten months from the day of dissolved conjugal life, he cannot be the husband's except on the hypothesis of gestation contrary to the laws of nature, or of sexual intercourse between separated spouses. Now such hypotheses cannot be presumed. And therefore then legitimacy is not presumed and must be proved, unless the husband acquiesces by silence.¹

¹ Vermeersch-Creusen, cited work, t. II, n. 420.

265. • IV. Diverse modes of illegitimacy.

Illegitimate children are distinguished into:

1. natural children, namely those who have been born from simple fornication.

2. spurious children, namely those who have been born from adultery, sacrilege, i.e., from a person bound by a solemn or solemnized vow, or from incest.

266. • V. Legitimation of children.

Legitimacy is conferred in a twofold way: either by the law itself which declares legitimation annexed to some fact, or by a rescript of the Supreme Pontiff.

a) Legitimation is had by the fact itself:

1. "Through the subsequent matrimony of the parents, whether true or putative, whether newly contracted or convalidated, even non-consummated." (Can. 1116.)

1. But this condition is required: that "the parents were capable of contracting matrimony between themselves at the time of conception, or pregnancy, or birth." (Ibid.) But if in none of those times, namely conception, gestation, or birth, the parents were free from a diriment impediment, subsequent matrimony does not confer legitimacy.

2. "Children legitimated through subsequent matrimony, as far as canonical effects are concerned, are in all things equated to legitimate children, unless something else has been expressly provided." (Can. 1117.)

But the law excludes those thus legitimated only from the office of Cardinal, Bishop, Abbot nullius, or Prelate nullius. (Can. 232, § 2, 1°; Can. 331, § 1, 1°; Can. 320, § 2.)

2. Through solemn profession in a religious Order.

But legitimation of this kind is altogether partial, because it only removes the irregularity for orders which comes from illegitimacy. An illegitimate person solemnly professed can receive sacred orders, but he does not become suitable for the office of major superior (can. 504), or a fortiori of cardinal, bishop, or abbot or prelate nullius. (Canons cited above, § 2.)

3. Through sanation in the root of the matrimony.

Those who become legitimate from the sanation of matrimony in the root seem to be fully assimilated to legitimate persons, since by a fiction of law they are considered as legitimate from the beginning, and therefore, contrary to those legitimated through subsequent matrimony, able to become Cardinals and Bishops.²

² Vermeersch-Creusen, cited work, t. II, n. 455, 4.

4. Through dispensation from the impediments of matrimony, granted from ordinary power or delegated by a general indult. Adulterous or sacrilegious offspring, however, are excepted from legitimation. (Can. 1051.)

b) Legitimation can be conceded by rescript of the Supreme Pontiff or of the Congregations which are organs of his supreme power.

Then the extension of the grace conceded is to be measured from the tenor of the rescript.