Cohabitation Without Marriage Pitfalls (Illegitimate Children)

The Ministry of Social and Family Development (MSF) has recognised the family as a basic building block of our society and has encouraged families to have children within marriages by providing benefits such as the Baby Bonus cash gift, housing benefits, and tax reliefs.

But what happens if a child is born out of outside of marriage? This article sheds light on the legal rights that illegitimate children have and does not have, and what could be done to legitimise the relationship between the parent and an illegitimate child.

The law in this area is complex, and it is highly advisable to have a family lawyer attend to your legal questions.

Common Law Rule of Legitimate Status

Under the common law rule of legitimate status, a child’s relationship with his or her parents is legitimate only if the child is born during the existence of a valid marriage between them.

Legal Rights Not Compromised

The status of legitimacy, however, has become less significant today than it would have been under the common law, as statutory provisions have attenuated the effect of not complying with the common law substantive rule. This can be seen as follows: -

• Maintenance from Living Parent and Persons who have Accepted Child Under Section 68 of the Women’s Charter, a parent is liable to be ordered by a Court to provide reasonable maintenance for his or her dependant, regardless of the child’s legitimacy status. As such, a single parent can make an application for child maintenance from the other biological parent.

  Under Section 70 of the Women’s Charter, the secondary responsibility of a person who has accepted the child as a member of her family is also assessed regardless of the child’s legitimacy status.

• Guardianship and Custody In general, the law of guardianship and custody which regulates the Court’s ability to make orders regarding the upbringing of the child does not distinguish whether or not children and their relationships with their parents are legitimate or not.
• Child Development Account (CDA) BenefitsChildren of unwed parents born from 1 September 2016, are eligible for CDA benefits which support unmarried parents’ efforts to care for their child.

Rights Compromised

It is important to note, however, that there are still some residual differentiations in legal regulation between legitimate and illegitimate relationships which have not been accounted for by statutory provisions. These are briefly listed below:-

• Intestate Succession The main disadvantage to a child whose relationship with his or her parents is not legitimate comes from the law of succession. Section 7 Rule 3 and Section 3 of the Intestate Succession Act excludes a child whose relationship with his or her parents is not legitimate, from succeeding to his or her parent’s intestate estate.

  Section 10(1) of the Legitimacy Act states that a child whose relationship with his or her parents is not legitimate succeeds only to her mother’s intestate estate only if his or her mother does not also leave a surviving child with whom her relationship is legitimate.

  As such, to overcome the above discrimination, a parent who wishes his or her child whose relationship is not legitimate to succeed in the estate may do so by a provision in a valid Will. The bequest should identify the child who is not legitimate by name to avoid confusion of the interpretation of the Will (eg. if the Will states “child”, issues may arise as to whether or not this was intended to include legitimate and illegitimate children).

• Maintenance from Parent’s Estate Section 3(1) of the Inheritance (Family Provision) Act defines the dependants entitled to make an application for maintenance from the estate, and the said provision has not been amended to include a child whose relationship with his or her parents is illegitimate. This has been interpreted and confirmed by the Court of Appeal in AAG v Estate of AAH, deceased [2010] 1 SLR 769.
• Registration of Surname at Birth Section 10(1) of the Registration of Births and Deaths Act states that any surname of a child to be entered in respect of the registration of the birth of the child shall be that of the father of the child, but where the child is illegitimate and the father is not an informant of the birth, the surname if any, shall be that of the mother of the child.
• Citizenship of the Child In regard to a child born in Singapore, Section 121 of the Constitution and Section 15(1) of the Third Schedule states that a child born in Singapore whose relationship with his or her parents is not legitimate, will not acquire citizenship by birth if only her father is a citizen of Singapore.
• Housing Benefits In accordance with the HDB Public Scheme, a biological parent is not able to form a family nucleus with an illegitimate child for the purposes of purchasing an HDB flat in Singapore, even if the unwed parent adopts his or her child. Parents can attempt to apply for an HDB flat under the Singles Scheme, or appeal to HDB to allow unwed parents under 35 years old to purchase a flat. Additionally, parents may now be able to get benefits from the Assistance Scheme for Second-Timers, gain access to Housing Subsidies, or get accommodation in the interim under the Provisional Housing Scheme, or apply for public rental flats. It is noted that the Housing and Development Board exercises flexibility on a case-by-case basis to assist households with their specific housing needs.
• Tax Relief Unwed mothers do not enjoy the same tax reliefs as married mothers who are provided with respect of children born within marriage.

What Can be Done to Legitimise the Relationship with Your Child

a. Legitimisation by Subsequent Marriage of Parents

Section 3 of the Legitimacy Act provides for legitimation by subsequent marriages: -

• Section 3(1) of the Legitimacy Act requires that the father or mother of the illegitimate person be domiciled in Singapore at the time of the marriage of the parents subsequent to his or her birth. There is a presumption that a person who is a citizen of Singapore to be domiciled in Singapore unless otherwise proven.
• Section 3(2) of the Legitimacy Act states that the parents’ subsequent marriage must have been either registered under the: Christian Marriage Ordinance (repealed), Civil Marriage Ordinance (repealed), or Women’s Charter.

Rights of Legitimated Persons under the Legitimacy Act

Section 5 of the Legitimacy Act states that a legitimated person, and his spouse and children will be entitled to take any interest in the estate of an intestate dying after the date of legitimation, and under any disposition coming into operation after the date of legitimation. It is noted that this interest is subject to the rank of the children of any person regarding seniority.

b. Adoption

Under the Adoption of Children Act, it is possible to remove the label of illegitimacy by adopting your biological child. The child will then be a legitimate child as if born in marriage.

Section 5(a) of the Adoption of Child Act requires the consent of any parent to the adoption. The “parent” includes the parent in an illegitimate relationship with the chid. An adoption order requires consent of every person or body who is a parent or guardian of the infant. Under Section 4(4) of the Adoption of Child Act, the Court will only dispense with consent if a person has (a) abandoned, neglected, persistently ill-treated the infant, or cannot be found, (b) is unfit by reason of any physical and mental incapacity to have care and control of the infant, or (c) the Court thinks that the person’s consent ought to be dispensed with.

While this grants your child legitimacy, it is noted that in practice, it does not entitle one to housing benefits and Baby Bonus cash grants, which are tied to the parent’s marital status.

Conclusion
The law in this area is complex. If you require legal advice regarding the matter, our dedicated team of an experienced divorce lawyers are able to assist you with your legal troubles.