University of Zimbabwe, Faculty of Law , Family Law Lecture Series, 2020

Lecture 14 - Legitimacy &

Adoption

Presented by Dr. E. Rutsate in October, 2020

 Legitimacy

Having the Status of one Lawfully Begotten

 Key Constitutional Provisions
S19 - Best interests of the child paramount
S56 (3) – Equality & non-Discrimination > Right not to
be discriminated against on basis of being born in or out
of wedlock
(3) Every person has the right not to be treated in an
unfairly discriminatory manner on such grounds as their
nationality, race, colour, tribe, place of birth, ethnic or
social origin, language, class, religious belief, political
affiliation, opinion, custom, culture, sex, gender, marital
status, age, pregnancy, disability or economic or social
status, or whether they were born in or out of
wedlock.
Legitimacy under Gen. Law
Legitimate child - one who is conceived or born to
parents who are legally married to each other (born
inside wedlock)
Pater est quem nuptiae demonstrant - maxim already
discussed under paternity i.e. the man a woman is
married to is presumed to be the father of her children
born during union hence children conceived or born
during subsistence of marriage presumed to be
legitimate.
Illegitimate child – a child conceived and born to
parents not married to each other (born out of
wedlock)  
Legitimacy under Gen. Law (Cont’d)
Presumption of legitimacy rebutted in a similar
manner to how paternity is rebutted i.e. Sterility;
lack of access at relevant time etc.
Rebuttal of presumption makes child illegitimate
Only High Ct has power to enter an order declaring
illegitimacy & child has to be represented by a
curator ad litem to protect its interests (a legal
representative in Scots & Roman-Dutch Law
appointed by a court to represent, during legal
proceedings, the best interests of a person who lacks
the mental capacity to make decisions for
themselves.)
 Grounds for Decree of Nullity of Marriage
 S13 of Matrimonial Causes Act stating that;
 (1) In addition to any other ground on which a marriage is by law voidable,
a marriage shall be voidable on the ground—
 (a) that the marriage has not been consummated owing to the wilful refusal
of the defendant to consummate the marriage; or (b) that either party to the
marriage was at the time of the marriage mentally disordered or defective
within the meaning of the Mental Health Act [Chapter 15:06]: Provided
that, in the case specified in paragraph (b), an appropriate court shall not
grant a decree of nullity unless it is satisfied that— (i) the plaintiff was at
the time of the marriage ignorant of the facts alleged; and (ii) the
proceedings were instituted within a year from the date of marriage; and
(iii) marital intercourse with the consent of the plaintiff has not taken
place since the discovery by the plaintiff of the existence of the ground for
a decree.
 (2) Nothing in subsection (1) shall be construed as validating any marriage
which is by law void, but with respect to which a decree of nullity has not
been granted.
 Status of Children Post Divorce
In the event of a divorce, children
born of lawful union remain
legitimate.
Use of politically correct
language>>> born inside or outside
of marriage >> S2 of Birth & Deaths
Registration Act-
 Section 2 (2) of BDRA
(2) For the purposes of this Act, a person shall be
regarded as—
(a) born out of wedlock if his parents were not
married to each other at the time of his conception or
birth and have not subsequently married each other;
(b) born in wedlock if his parents were married to
each other at the time of his conception or birth, or
have subsequently married each other; and, for the
purpose of determining whether or not such a
person’s parents were or have been married to each
other, a putative or voidable marriage shall be
regarded as a valid marriage.
 Types of Illegitimate Children under
Gen. Law & Methods of Legitimation
1. Pre-marital Children (spurii)
2. Adulterine children
3. Incestuous children
4. Children born of a void marriage
5. Children born of a putative (purported)
marriage
6. Children born of an annulled marriage
Pre-marital Children (Spurii) - 1
 Historical facts: Spurii in Roman law refers to illegitimate children
born of a prostitute. Roman law made distinction between illegitimates
born of a concubine, and those born of a prostitute. The illegitimates
born of a concubine were styled naturales, and those born of a prostitute
were called spurii. The naturales were entitled to support from the father.
The spurii on the other hand had no legal rights of inheritance or to a
support. [Dickinson Appeal From Probate, 42 Conn. 491, 501-502
(Conn. 1875)].
Pre-marital Children (Spurii) - 2
Now a common phenomenon as more & more
people are choosing to co - habit before marriage &
proceed to have children
If parents subsequently marry, the children
become legitimate ( legitimatio per subsequens
matrimonium )
Legitimation is automatic & any incapacity the
children might have suffered falls away.
Pre-marital children can be legitimated by
adoption.
Adulterine Children (1)
Word speaks for itself>>derived from adultery
An adulterine child is one born out of adulterous
sexual intercourse i.e. Either of the parents was
married to someone else at time of conception.
Children deemed to be illegitimate.
However if child is born to a married woman, its
presumed to be legitimate due to the maxim pater est
quem nuptiae demonstrant
Only High Court seized with power to issue an order of
illegitimacy if it is proved that the woman’s husband at
law could not possibly be the father of child.
 Adulterine Children (2)
In terms of Section 14 of the General Law Amendment
Act Chapter 8:07, on “Legitimation of adulterine
Children,” an adulterine child can become legitimate in
following circumstances;
Where the father or mother of an illegitimate person was
married to a third person when the illegitimate person
was born, and the parents of the illegitimate person
marry or have married one another after the birth of that
person, the marriage shall render that person, if living,
legitimate from the date of that person’s birth.
Section also applies to children born of customary law
marriages
Adulterine Children (3)
Section 14 of GLA CAP 8:07 only applies if
one or both parents was married to a 3rd
party at the time of birth. That means a child
conceived when one or both parents are
married to someone else but born when its
parents are no longer married to a third
party is not covered by this section i.e. if
parents subsequently marry
Currently there has been no Zimbabwean
case on position under Roman Dutch Law.
 Incestuous Children (1)
Incestuous children are born to parents who cannot
marry each other due to close blood relationships.
Scientists are of view that children born as a result of
incestuous relationships are highly likely to be
physically and mentally challenged .
Contentious issue vis-à-vis legitimation since parents
by virtue of too close a degree of blood relationship
can never validly enter into a marriage.
No reason why such children cannot be legitimated
by adoption.
Incestuous Children (2)
What is considered as incest under Shona/Ndebele/
Kalanga/Tonga/Venda etc customary law?
How does one reconcile this with the issue of 1st & 2nd
cousins in terms of Section 75(1) of the Criminal Law
Code
Section 75(1) wording – “In this section, “first cousin”,
in relation to any person, means the child or any
descendant of the child of the uncle or aunt of such
person;
“second cousin”, in relation to any person, means the
child or any descendant of the child of the great-uncle
or great-aunt of such person.
 Prohibited Degrees of Relationship under S75(2) of
Criminal Law Code
S75(2) Where sexual intercourse takes place between
(a) a parent and his or her natural child, whether born in
or out of wedlock, or adopted child, whether the child is
under the age of eighteen years or not; or
(b) a step-parent and his or her step-child, whether the
step-child’s parent and step-parent are married under the
Marriage Act [Chapter 5:11] or the Customary Marriages
Act [Chapter 5:07], or are parties to an unregistered
customary law marriage, and whether or not the child
was over the age of eighteen years at the time of the
marriage;
 Prohibited Degrees of Relationship (2)
Or
(c) a brother and sister, whether of whole or half blood; or (d)
an uncle and his niece; or
(e) a grand-uncle and his grand-niece; or
(f) an aunt and her nephew; or
(g) a grand-aunt and her grand-nephew; or
(h) a grandparent and his or her grandchild; or
(i) subject to subsection (3), any person and his or her first or
second cousin; or
(j) any person and an ascendant or descendant of his or her
spouse or former spouse, whether the person and his or her
spouse or former spouse are or were married under the
Marriage Act [Chapter 5:11] or the Customary Marriages Act
[Chapter 5:07], or are or were parties to an unregistered
customary law marriage;
 Prohibited Degrees of Relationship (3)
or (k) any person and his or her ascendant or descendant
in any degree; or
(l) any person and a descendant of a brother or sister,
whether of whole or half blood; and either or both of the
parties know or realise that there is a real risk or
possibility that they are related to each other in any of the
foregoing degrees of relationship, either or both parties to
the intercourse, as the case may be shall be guilty of
sexual intercourse within a prohibited degree of
relationship and liable to a fine up to or exceeding level
fourteen or imprisonment for a period not exceeding five
years or both.
Defences (1)
S75(3) It shall be a defence to a charge of
sexual intercourse within a prohibited
degree of relationship as between first or
second cousins for the accused to prove;
(a) in the case of a person who is not a
member of a community governed by
customary law, that the cultural or religious
customs or traditions of the community to
which he or she belongs do not prohibit
marriage between first or second cousins; or
 Defences (2)
(b) in the case of a person who is a member of a
community governed by customary law, that the cultural
or religious customs or traditions of the particular
community to which he or she belongs do not prohibit
marriage between first or second cousins.
S75(4) In determining for the purposes of subsection (3)
whether or not a person is a member of a community,
(a) whose cultural or religious customs or traditions do
not prohibit marriage between first or second cousins, a
court shall have regard to the evidence of any person who,
in its opinion, is suitably qualified by reason of his or her
knowledge to give evidence as to the cultural or religious
customs or traditions of the community concerned; or
 Defences (3)
(b) governed by customary law, regard shall be had to all the
circumstances of the person’s life, including (i) whether or not the
natural parents of the person were married under the Customary
Marriages Act [Chapter 5:07] or were parties to an unregistered
customary law marriage; (ii) whether or not the person lives among
other members of such a community and is regarded by such other
members as belonging to that community, notwithstanding that the
person’s natural parents were not married to each other, or were
married exclusively under the Marriage Act [Chapter 5:11];
(iii) where the person does not live among members of such a
community, whether he or she has ties to such a community by reason
of his or her natural parents belonging to such a community.
*NB* S75(5)Competent charge for a relationship engaged in without
woman’s consent is rape & without man’s consent, aggravated
indecent assault
Void Marriages
Ordinarily speaking, a child born of a
void marriage is illegitimate.
However if one parent at the time of the
marriage had a bona fide belief that the
marriage was valid at the time of
conception, under Roman Dutch Law, the
court can be approached for a declaratory
order that the child is legitimate.
 Putative (Purported) Marriage
A putative marriage is one which is void ab initio but
one of the parents is bona fide in its legitimacy.
In an action to declare the putative marriage void, a
declaratory order is also sought to declare the
children legitimate.
SEE CHIRAWU ET AL –POSITION PAPER ON
UCLUS AND PUTATIVE MARRIAGES
Available at:
www.wlsazim.co.zw/wlsadocs/positionpaper.pdf
Accessed 3/16/2017
 Annulled Marriage
Children born of a voidable marriage under Roman Dutch
Law were legitimate during the period that marriage existed.
Upon annulment of parent's voidable marriage, such children
become illegitimate because the marriage is viewed as never
having existed.
Situation is covered by Section 14 of the Matrimonial Causes
Act on “Legitimacy of children of voidable marriages” which
provides that;
Where a decree of nullity is granted in respect of a voidable
marriage, any child who would have been the legitimate child
of the parties to the marriage if it had been dissolved instead
of being annulled, at the date of the decree, shall be deemed
to be their legitimate child notwithstanding the annulment.
A child can never be illegitimate in respect of its mother.
Legitimacy under Customary Law (1)
Need to note that there are two distinct concepts;
Parental rights and duties towards a child vis-à-vis custody,
maintenance and protection of child , right to receive roora
(amalobolo) or pay it.
Patrilineage - based on or tracing descent through the
paternal line as contrasted with maternal line (matrilineage)
Patrilineage entitles a child to succeed to the father's name
and genealogy
See : Shumba vs Shumba HB – 25-05
Children born of lawfully married persons are legitimate.
Husband has rights of guardianship, custody ,
maintenance( primarily ) .
 Legitimacy under Customary Law (2)
Historical Facts: Pre-marital children viewed as
illegitimate in relation to their father who had no
rights of custody or guardianship as these were vested
in the guardian of the mother but this has changed
due to LAMA & 2013 Constitution>>> S80(2)
Now the father has a duty to maintain children
Under customary law such children can be
legitimated by payment of chiredzwa/ amalobolo
omtwana . Upon acceptance of this money by the
woman's father/ guardian, the natural father then
acquires rights of guardianship and children become
legitimate under customary law.
Legitimacy under Customary Law (3)
Adulterine children - : They are presumed
to be children of the man their mother is
married to until the adulterer comes
forward and pays maputiro and
acknowledges the children as his.
Maputiro is some form of compensation
and if husband accepts, the adulterer
becomes entitled to the guardianship and
custody of the adulterine child. As earlier
indicated, Section 14 of the G.L.A. Act also
applies to customary law situations.
Artificial Insemination (In Vitro)
No Zimbabwean Cases
Homologous insemination: insemination with the
husband's semen.
Child legitimate because parents married.
 Heterologous insemination : by a donor
In V vs. R 1979 (3 ) SA 1006 - Child conceived by this
method held to be illegitimate
What about the Shona Customary law of “kupindira”
when a nephew or a young brother to a man who is
sterile has sexual intercourse with the wife as arranged
by the aunts???
 Case Law: Children Born In & Out of
Wedlock
Exparte Golden NO 1962(2) SA 360
Green vs Fitzgerald 1914 AD 88
Estate Heinmann and others vs Heinmann 199 AD 99
Hoffman and others vs Estate Mechau 1922 CPD 179
Exparte J 1958 93) SA 115
Lessing vs Lessing 1958 ( 3) SA 115
M vs M 1962 ( 2) SA 114
Douglas vs Meyers 1991 ( 2) ZLR 1
Cruth vs Manuel 1999 ( 1) ZLR 7
Adoption
Relevant Constitutional Provs
Section 19>>>Best interests of child
paramount
Section 56(3)>>>Equality & non-
discrimination on basis of being born in or
out of wedlock
Section 80(2)>>>Women & men have same
rights regarding custody & guardianship of
their children
 What is Adoption?
Roman Dutch Law did not recognise adoption
as a legal institution .
In Zim. issue of adoption dealt with under the
Children's Act Chapter 5:06 (Formerly the
Children's Protection and Adoption Act)
Most adoption issues are regulated by statute.
Any agreement to give custody and control of
a child which is not in accordance with the
adoption procedures is null and void and
cannot be enforced.
 What is Adoption? (Cont’d)
The action or fact of adopting or being adopted.
Adoption creates a legal relationship between the
adopted child and the parents.
The child moves permanently from one family to
another family.
In the process, all parental rights are legally transferred
to the new parents meaning adoptive parents have the
same rights and responsibilities as parents whose
children were naturally born to them.
Also means adopted children have all the emotional,
social, legal, and familial benefits of biological children.
All rights between the child and his/her lawful
(biological) parents are terminated. 
 What is Adoption (Cont’d)
Section 59(3)(1) allows a mother to consent to an
adoption of a child born outside marriage
 Seems to be contrary to 2013 Constitution
Also all reference to illegitimate child needs to be
removed
S 64 - Effect of adoption order e.g. (1) an adoption
order confers the surname of the adopter on the
adopted child.
(2) confers on adopted child right to inherit from
adopter as if the adopted person were the child of
the adopter born in lawful wedlock and were not the
child of any other person.
 Cont’d
Historical facts: Before the coming into effect of the
Children's Act - adopted child could get married to
the adopted parent if the child was over 18 years.
Now marriage between an adopted child and an
adoptive parent is prohibited but this does not affect
marriages entered into before the prohibition.
The children's court deals with adoption matters.
An adoption order can also be rescinded - Section 67
See also Section 72 >> effect of adoption on marital
relations
 Cont’d
S72 Effect of adoption on marriage
(1) With effect from the date of commencement of
the Children’s Protection and Adoption
Amendment Act, 2001, no marriage shall be
contracted between an adopter and a person
adopted by him.
(2) For the avoidance of doubt, subsection (1) shall
not affect the validity of a marriage contracted
before it was amended
 Adoption in an African setting
Quote from the late Jennifer Okumu-Wengi (Uganda) in the article,
“Searching for a Child centred Adoption Process: The Law & Practice in
Uganda”
Adoption presents legal, social, cultural & economic problems both at
conceptual & practical levels. This is firstly because adoption regulation like
all areas of personal & social legislation entails a point of convergence &
divergence between received colonial law & the diversity of African
customary law. Secondly, religious, cultural, social & statutory changes
affect adoption in the formal institutions & its traditional practices. While a
no. of court decisions provide useful decisional law & practice on adoption,
there is little documented research on the experiences of adoption by the
individuals concerned or the recognized adoption institutions. Empirical
data on the conception, occurrence & practice of adoption under customary
law & practices is also lacking. The literature available on the subject is
largely normative analysis of the formal legal framework...”
from the book “Law, Culture, Tradition & Children’s Rights in Eastern &
Southern Africa” edited by Welshman Ncube (1998) p225
 Case Law on Adoption
CASES ON ADOPTION
Van Der Weshuizen vs Van Wky & another 1952 ( 2)
SA 119
In Re Mcleod 1972 ( 2) SA 383
Dhanabhakium vs Subramanian and another 1943
AD 160
Sibiya vs Commisssioner for the Child
Welfare(Bantu) 1967 ( 4) SA 347
PROTECTION OF CHILDREN
In Re ET an others 1992 ( 1) ZLR 300
In Re Eight Juveniles 1998 (1) ZLR 362
In Re J and another 1998 ( 1) ZLR 209
Botswana & SA Case Law
See Botswana Case on Adoption
GK VS BOK AND OTHERS – Declared
unconstitutional the provision which stated that
consent of the father of a child born out of
wedlock is not required.
SA Case on Adoption–
Fraser vs Children’s Court and Others CCT 31/96
similar position as Botswana