It is a fact of life that in the Caribbean a great number of children are born out of wedlock. In the past, such children were looked down upon and generally regarded as somehow possessing an inferior status to legitimate children born to married parents. This unfortunate attitude was long reflected in the position which the law took in respect of the inheritance of property by such persons. While legitimate children were able to freely inherit property from their parents, and more specifically their fathers, the law refused to accord similar rights to illegitimate children.

A stark example of the difficulties and injustice created could be seen in the different position of children born to a man before and after his marriage. If he died intestate only the children of his marriage were entitled to claim on his intestacy. This meant that if he died and left no will, half of his property went to his wife for life, and the other half was divided between his legitimate children. The “outside” children got nothing.

A radical change in the law in Anguilla was brought about by the Law Reform (Illegitimacy) Act which was enacted in 1982. This Act sought to equalise the status of legitimate and illegitimate children in many areas. In one or two Caribbean countries, similar legislation is still being resisted today on the grounds that the recognition of such illegitimate children would be a threat to the morals of the society and would lead to a breakdown of family values.

Some people shudder at the thought of an “outside” child being entitled to an equal piece of the pie as the “inside” children. However, while one would not condone any relaxation in the moral standards which have long kept our Caribbean societies afloat, this is clearly a practical and very real problem which requires an equally pragmatic solution. Any such fears and prejudices must be balanced against the injustice done to children who through no fault of their own find themselves barred from benefiting from their father’s estate. The law’s traditional attitude directly avoided the root cause of the problem, and sought to smother the symptoms by turning a blind eye and adopting an ostrich-like approach to the situation.

The Act provides that where either parent of an illegitimate child dies intestate (ie, without having made a will) an illegitimate child is entitled to inherit any of his property in the same way as if he had been born legitimate. In addition, where an illegitimate child dies intestate, either parent who survives is entitled to inherit his property as if he was born legitimate.

The Act also clarifies the position where a person leaves a will. Any reference to his “children” in the will now means both his legitimate and illegitimate children, unless a contrary intention is shown.

These new provisions make the issue of the paternity of a child a very important one. It is now essential for a person, whether legitimate or illegitimate, to be able to legally show that a person is his father in order to be entitled to inherit his property. The Act makes this easier in two ways:

(a) Where the name of an illegitimate child’s father does not appear in the Register of Births next to the child’s name, the Register can be amended to insert the father’s name. This is done by way of a written application, supported by a notarised declaration signed by the person acknowledging himself to be the father and by the mother.

(b) In civil proceedings, if it becomes necessary to determine who is the father of a person, any party may ask the Court to order that blood tests be done for this purpose. Blood samples can only be taken with the consent of the person concerned.
These are important reforms which have helped to address the previous imbalance in the different treatment of children. They are indeed a good example of the sort of progressive action which we as a society must never be fearful of taking.

Please note that this article is for general information only and should not be applied to any particular set of facts or circumstances without seeking legal advice.
Alex Richardson is Managing Partner of the law firm Alex Richardson & Associates, P O Box 371, The Babrow Building, The Valley, Anguilla, Tel: 264 498 4224, Fax: 264 498 4220, email: arichardson@anguillanet.com. He is also Managing Director of Paragon Corporate Services Ltd.

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