The Status of Children
In the past, the ‘legitimacy’ or ‘illegitimacy’ of a child determined many aspects of how the law dealt with them. Although the concept has now become outdated and largely irrelevant, the Marriage Act 1961 still contains provisions relating to the legitimation of children by virtue of the marriage of their parents and whether a child’s parents were married when they were born can still make a difference in some limited legal situations. This article examines the laws surrounding the status of children and the consequences of whether the parents of a child were married or not.
Status of children legislation
Each state and territory, with the exception of the ACT, has passed status of children legislation. This legislation establishes that all children are of equal status regardless of whether their parents are married. It sets up a number of parentage presumptions arising from marriage or cohabitation and procedures for establishing parentage. The status of children legislation is listed below:
- Status of Children Act 1978 in Queensland
- Status of Children Act 1996 in New South Wales
- Status of Children Act 1974 in Victoria
- Status of Children Act 1978 in the Northern Territory
- Status of Children Act 1974 in Tasmania
- Family Relationships Act 1975 (SA) in South Australia
The Western Australian Wills Act 1970 also contains provisions that state that a child’s entitlements are to be determined regardless of whether their parents were married to each other.
The above legislation does not abolish the concepts of legitimacy and illegitimacy, but it renders them irrelevant for many purposes.
In the past, ex-nuptial children were the recipients of social stigma as well as having fewer legal rights, particularly in the areas of custody and property. In the ACT, ex-nuptial children are still treated differently in some areas of law as the ACT does not have a status of children act. In other jurisdictions, there is now no legal difference in the treatment of nuptial and ex-nuptial children for many purposes.
When does the status of children matter?
Whether a child is nuptial or ex-nuptial is still relevant for the purposes of consent to adoption and the registration of names. In Queensland, Tasmania and Western Australia, the consent of a child’s father to the adoption of the child is not required if the father was not married to the mother when the child was born and has not later married her unless the father is also a guardian for the child under a court order or under state or territory law. It is unclear whether a father who has the care of a child would be regarded a s a guardian for this purpose. In the ACT, the adoption of an ex-nuptial child requires only the consent of the mother or other guardian. In the NT and South Australia, the consent of the father is required if his paternity has been formally acknowledged. The same applies in Victoria, with the addition of other situations where the father has custody of the child or responsibility for their maintenance. In New South Wales, the father of an ex-nuptial child must be informed of the child’s proposed adoption although he has no right to consent or refuse to consent to the adoption. This gives the father the opportunity to apply for custody, or to adopt, the child. In NSW, the father of a child who is the de facto partner of the mother must consent to the child’s adoption.
The name of the father of an ex-nuptial child is generally not entered onto the child’s birth certificate unless both the mother and the father request this.
The status of a child does not make a difference to the child’s entitlement to inherit from either of their parents or to how they are dealt with in the family law system.
Legitimation under the Marriage Act
The Marriage Act provides that a child whose parents were not married at the time of its birth but have subsequently married each other is the legitimate child of those parents. It also provides that a child of a marriage that is void is a legitimate child if at the time of the marriage either of the parties believed on reasonable grounds that the marriage was valid.
Section 92 of the Act allows a person to apply to a court for an order declaring the person to be the legitimate child of their parents or that a person or their parent, child, ancestor or descendant is or was a legitimate person. The court has the discretion to make the order.
As many Aboriginal couples are married traditionally and not in a way that is recognised under Australian law, many Aboriginal children are excluded from the definition of ‘legitimate’ children. However, the Northern Territory’s Status of Children Act specifies, at section 3, that marriage includes a traditional marriage between an Aboriginal man and woman that is recognised by the community to which they belong. In this way, Aboriginal children are recognised as ‘legitimate’ in the NT if their parents are traditionally married, even if their marriage is not recognised under Australian law.
The consequence of this is that the father of a child who was traditionally married to the mother would not be required to give his consent to the adoption of the child unless he was also a guardian of the child or de facto partner of the mother. The Australian Law Reform Commission has recommended that the law be changed so that Aboriginal father who are traditionally married have the same rights as other fathers.
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