Children of the Marriage
| Published date | 01 January 1951 |
| Date | 01 January 1951 |
| DOI | 10.1177/002201835101500109 |
| Subject Matter | Article |
Children
of
the
Marriage
JUSTI CES have powers under s. 5 of
the
Summary
Jurisdiction (Married Women) Act 1895
and
s. 2 of
the
Licensing Act 1902
to
make
an
order
in
respect of
the
legal custody of
"any
children of
the
marriage"
and
under
the
Married Women (Maintenance) Act 1920 s. 1 as amended
by
the
Married Women (Maintenance) Act 1949 s. 1(1) to
make aprovision for
the
maintenance of each such child.
The literal interpretation of
the
phrase "children of
the
marriage" is precise
and
unambiguous
and
simply means
children born
to
the
parties after their marriage
to
one
another.
In
two cases Parliament has, however, altered
the
status
of a child.
Under
the
Legitimacy Act 1926 an illegitimate child
may
be legitimated
by
the
subsequent marriage of
the
parents. Following various High Court decisions
it
was
up
to 1945 held
that
unless
and
until aformal declaration
of legitimacy as prescribed
by
s.2. of
the
Act of 1926 (now
s.17 of
the
Matrimonial Causes Act 1950)
had
been obtained
alegitimated child was
not
a"child of
the
marriage"
within
the
meaning of
the
Summary Jurisdiction (Separ-
ation &Maintenance) Acts 1895
to
1925. These decisions
were disapproved in C. v. C. 111
J.P.
442 where a child
legitimated
by
marriage was held to be a "child of
the
marriage" although there
had
been no formal declaration
of legitimacy. Lord Merriman
at
p. 445 said, "Provided
that
the
other conditions are fulfilled,
it
is
the
subsequent
marriage of his parents which renders
the
child legitimate
by
virtue of
the
Legitimacy Act 1926,
and
it
is
that
same
marriage of those parents which is
the
subject of
the
proceedings in which
the
custody order is sought to be
made.
In
our opinion, s.193 of
the
Supreme Court of
Judicature
(Consolidation) Act, 1925, gives
the
court
jurisdiction in such a case,
and
a decree of legitimacy under
s.188 of
the
Judicature Act, 1925, is
not
acondition
103
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