A Father’s Sins
SIM JUNHUI (Juris Sub-Editor)
It has been said that the sins of the father are visited upon his children. Differently put, the child is punished for the acts or activities of his father. An example of the law apparently manifesting this philosophy of filial punishment may be found in the Inheritance (Family Provision) Act (Cap, 138, 1985 Rev. Ed. Sing.) [IFPA], relating, inter alia, to the maintenance of children after the death of a parent. According to the Court of Appeal, the Act punishes illegitimate children for their parents’ indiscretions by restricting maintenance upon the death of a parent to legitimate children.
The Court in AAG v. Estate of AAH, deceased, [2009] SGCA 56, was faced with an appellant seeking maintenance for her two illegitimate daughters from the estate of the Deceased—their natural father. The issue was whether “daughter” under s. 2, IFPA, included illegitimate daughters so that such persons could claim maintenance benefits after the parent’s death under s. 3(1)(b). Citing case law from England, from which Singapore derived the IFPA, and inferring Parliamentary intention from the Minister’s speech, the Court dismissed the appeal.
What was interesting was that the Court, in dismissing the appeal, called for the law to be changed and the scope of the Act to be extended to include illegitimate children of a deceased person. Referring to laws which already imposed a duty on parents to maintain their children, legitimate or otherwise, during their lifetime, the Court opined that the estate should continue to perform this duty after death. The Court agreed with Professor Leong Wai Kum’s convincing argument that to deny illegitimate children maintenance, which legitimate children would receive, after their parent’s death would be to “punish innocent [illegitimate] children”.
Assuming that, in bringing them into the world, parents do bear a responsibility to and must take care of all their children, for the law to allow parents not to take care of their illegitimate children after death may thus be construed as punishing such children. Such punishment may not necessarily be active punishment in the sense that something is taken from the child. However, it still is, or may be seen as, a passive form of punishment in that something which ought to be his is withheld from the child.
Additionally, the child is arguably innocent. Although the fruit of their improprieties, it is difficult to see the illegitimate child as playing a part, directly or even indirectly, in causing or inciting the infidelity in his parents’ marriages. How could something, which was not, do anything?
This argument appears to drive us to the conclusion that, in Singapore, we must, or at least should, change the law as soon as possible to extend the benefits of legitimacy to the illegitimate. But there are competing considerations which make this decision less easily made than one might think and which at least merit some mention.
In the course of urging change, the Court referred to the report of the Law Commission of England—Family Law: Report on Illegitimacy (Law Com No 118, 1982). The Law Commission could not deny that “a change in the law might indirectly foster a trend away from formal marriage”, and shared “the widely-held anxiety lest the institution of marriage be further eroded by blurring the legal distinction between marriage and other relationships.”
Notwithstanding these concerns, however, the Law Commission urged change in the law. Not doing so, they opined, would cause illegitimate children to continue to be subject to legal handicaps which were commonly regarded as “anomalous and unjustified”. Perhaps this common perception was due to the fact that, as the Court observed a learned author mention, “in England … there is a relatively high incidence of children born out of wedlock”. Not to change the law would adversely affect many in England.
However, as the Court noted, in Singapore, “the family within marriage [is] considered to be the only acceptable social grouping in which to raise children.” The common perception appears to be that illegitimacy, and not its disadvantages, is anomalous. Presumably then, few are born illegitimately; and retaining the law adversely affects few. The difference in conditions may accordingly merit a difference in policy, and may incline us to place greater weight on the importance of the conjugal institution than on the interests of our relatively small population of illegitimate children. One must be mindful that changing the law in the face of our local conditions, common perception and inclinations towards marriage would be far more radical than it was to change the law in England. To change the law in Singapore, then, would involve far greater social change than it did with England. Unlike in England, where the reverse may have been true, the advantages of extending maintenance to illegitimate children may not outweigh the disadvantages from an attack on the marital institution.
Moreover, although protecting all children, including the illegitimate, is a fine and laudable thought, one must consider the finitude of resources and assets. Given the limitations, giving to one must mean taking from another. Here, it may well mean taking from the legitimate child to give to the illegitimate. Ultimately, one must not forget that it is impossible for everyone to benefit. In some way, someone must suffer for someone else’s gain. Denying the illegitimate child maintenance may be unfair, but to accord it to him may ironically be to visit upon the legitimate child the sins of his father!
[...] examines the history of the presumption of legitimacy and current case development in Singapore. Junhui argues for the Singapore position that illegitimate children should not inherit anything if their [...]
The law can be changed to give illegitimate children their inheritance rights without signalling disrespect to the institution of marriage. The intention behind the court’s reasoning and any proposed legislative reform to that effect is to accord greater protection to all children, both legitimate and illegitimate and should not be used as an indicator on the propriety of the institution of marriage in raising a family.
Society can certainly disapprove the trend of “non-married” unions, for example through selective discrimination in tax exemptions etc. but not at the expense of the innocent parties involved, i.e. the children born out of wedlock. These children are powerless to affect the legal arrangement of their parents union at the time of their conception and should not be punished through the simple accident of birth.
If we accept that illegitimate children should not be denied inheritance rights, then taking some benefits away from the legitimate heirs to give to the illegitimate children is justified. If all children should inherit from their parents, then the legitimate heir was never entitled to receive that extra lot of inheritance in the first place. He does not deserve anything extra due to the happy coincidence of legal circumstances over which he has absolutely no control over.
Even if it is accepted that awarding inheritance rights to illegitimate heirs affects the institution of marriage in a negative fashion, I would argue that protecting the rights of people impacted by legal and factual circumstances for which they have no control over and which they are not to blame is more important than defending the symbolic value behind marriage, government policy notwithstanding. Equality before the law is guaranteed by the constitution and quantitative cost benefit qualifications should not be used to justify such arbitrary legal discrimination.
If you give illigitimate children a share of what is rightfully due the legitimate, you will encourage the breakdown of marriage as an institution. Don’t pattern Singapore after countries like the UK or USA, who are in the midst of moral devastation. Just ask any native of those countries and they’d caution against following their footsteps.
It may have been the sin of the father and his mistress (yet remember that adultery should not be condoned), but the legitimate child and the suffering spouse should not be further humiliated, insulted and hurt by taking what would rightfully be theirs and giving a chunk to the illigitimate child. To further reward a husband’s infidelity, after his demise, is ridiculous.
Anyway, if a man wanted to, he could pen a will. I think the Muslims have it right. Only the legitimate family should be cared for and seen as heirs. After all, in practically all religions, adultery wuld not be rewarded, for doing so would encourage women to bear illigitimate children- for there would be no stigma in trying to steal a married man. They’d even gain financial security whilst he is alive- and inherit after his death!
@Mira,
I am child born out of a wedlock and reading what you said hurt me. It is as though I am not my father’s child and that I may not receive his inheritance, because I, in the eyes of the law should not even have been given life…
@Illegit Child, My husband had few inappropriate affairs with females, and he hurted me deeply too; not just by his words, but by his repeated actions too! He promised not to repeat, yet did it again and again. To the extent that I had to go for blood tests to ensure I did not contract any disease from him. Now I stayed “away” from him. It would be unfair to my children if any of his illegitimate ones come knocking my door for his inheritance (if there is any). Hurting us during his lifetime is bad enough; hurting us once again after his death is uncalled for!
I am a child born out of a wedlock and all I want is not my father’s wealth but to see him again once more. Would that be unfair at all to the ‘legal’ family? He hurt his real family in producing us, and so the revenge from the ‘legal’ family is directed to the ‘illegal’ family. Who is the victim again here?
After reading, there are rooms of thoughts. If today the father bears a illegitimate child with the mistress. Then choose to divorce the legal wife and married the mistress. Then the illegitimate child will become legal ? In this case, should I say it will be the father’s duty to decide if to provide the status required to get the rightful claims he would Like to give to his child in the first place? Does that makes the legal wife and children from the first marriage any better in any case ? Or via versa .. ? Having the law written this way .. How much it will help from the fact which has Been done ? And how much it helps to cut down divorce rate ? Was it really necessary to differ the status of the child who is innocent in the first place ? So law was pass to make the necessary actions required to undo the status ,was it?
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