In the British Virgin Islands, the Legitimacy Act, (a piece of legislation which has the effect of maintaining the discrimination against children born out of wedlock) is still in force.
The Act has as its basis, the recognition that (i) all persons born within a marriage are legitimate; and (ii) all persons who were not born within a marriage but whose parents subsequently married each other are legitimate.
On the other hand, the Act maintains the differentiation of the illegitimate child (a child born outside of marriage) from those mentioned in (i) and (ii) above and excludes them from the provisions of the Act. The most crucial consequence of the Act is that the illegitimate child is disregarded as it concerns inheritance of interests in real estate or personal property in the estate of his or her father if the father dies intestate (i.e. without making a will).
Consistently, the father is also disqualified from inheriting real estate or personal property from an illegitimate child, if that child dies without making a will. For the avoidance of doubt, the establishment of paternity is irrelevant for these purposes. Moreover, the illegitimate child will only inherit from the estate of his or her mother where the mother dies intestate if there are no legitimate siblings. If there are legitimate siblings, the illegitimate child will inherit nothing.
The Act was introduced in the BVI in 1929. It also had a home in many Caribbean countries and the United Kingdom (from whence it came when the English settled and colonised these Caribbean islands). However, the United Kingdom and many Caribbean countries repealed this legislation long ago on the basis that it was discriminatory to a certain class of persons and was therefore unconstitutional.
The Legitimacy Act was replaced in these countries with Status of Children legislation, which equalised the rights of children (whether born within a marriage or not) to inherit on the intestacy (dying without leaving a will) of either parent and vice versa, provided certain conditions were met.
With over 60% of the BVI population born out of wedlock, some vexed questions which have been posed are:
(a) Should the BVI consider repealing the Legitimacy Act?
(b) Should the law continue to automatically disqualify children who are recognised by their fathers during his life time from inheriting from his estate if the father dies without making a will?
(c) Should men be compelled by the courts to pay child support for children who are not recognised as their children for the purposes of inheritance?
(d) Should the establishment of paternity matter?
(e) Is the continuing in force of the Legitimacy Act an infringement on the right not to be discriminated against?
(f) How does Article 2 of the UN Convention on the Rights of a Child factor into this issue?
This topic will be the subject of a Town Hall meeting on December 1st 2009 at 5:30 p.m. at the High Court, House of Assembly Building. All are welcome to attend. The Town Hall meeting is being organised by the BVI Bar Association as a part of its efforts to sensitise the BVI public on legal issues affecting the society and to encourage public dialog on such issues.
Come and share your view. Do you think that the distinction between legitimate and illegitimate children is highly outdated in these modern times and entirely out of step with the current social conditions? Or, do you believe we should maintain the superior rights of children born within a marriage, to promote the sanctity of that institution. We believe that this will result in a very lively discussion regarding the status of illegitimate children and their rights to inheritance.
The BVI Bar Association was established in 1976. The current President is Tana´ania Small Davis. For further information please contact Mrs. Ayana Hull-Brathwaite at 852-3000.
