The Codified Presumption of Legitimacy

The presumption of legitimacy as codified by Sir James Fitzjames Stephen was transplanted to Singapore through the enactment of the Evidence Ordinance in 1890. This provision has survived unaltered till the present date as Section 114 of the Singapore Evidence Act:

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

This provision raises a presumption that a person born during the continuance of a valid marriage or within a fixed duration after the marriage is dissolved but before his mother remarries is a legitimate child. Because such a condition is “conclusive proof”, the presumption of legitimacy may only be rebutted by showing that the parties to a valid marriage had “no access to each other at any time when [the person] could have been begotten.”

A Brief History of the Presumption of Legitimacy

The presumption of legitimacy as codified by Sir James Fitzjames Stephen has its roots in the English Common Law. The development of the presumption in English common law is necessary to make sense of Sir James Fitzjames Stephen’s intentions in drafting Section 112 of the Evidence Ordinance.

According to Sir Harris Nicholas’ A Treatise on the Law on Adulterine Bastardy, with a Report of the Banbury Case, and all Other Cases bearing on the Subject, the common misconception of the presumption of legitimacy in English common law is that it had its origins in Canon law. This is only half true. The fundamental principle of the common law and Roman Civil law is Pater est quem nuptire demonstrant – marriage is the proof of paternity. The Ecclesiastical Law considered the actual paternity of the child. Therefore, all evidence which related to that fact was admissible to disprove legitimacy under the Ecclesiastical Law.

In explaining how the common law courts rationalised legitimacy outside actual paternity, Sir Harris cited the treatise of Britton, which is supposed to have been compiled in the reign of King Henry the Third. According to Britton, the common law had always contemplated that a child who owed its existence to an adulterer could be the heir of his father. A child born of a married woman whose legal status was at variance with his actual paternity was designated ‘mulier’. A ‘mulier’ enjoyed all the municipal rights of legitimacy under common law even if he was a bastard under Spiritual law. Britton’s explanation for this position was tied to real property issues at the time. Although “[m]oral justice certainly renders it desirable that none but the real issue of the body of a man, begotten upon his wife, shall inherit his rank and lands … society merely requires that property shall have an owner and the bastard or supposititious child may be as competent to hold, and to perform all the duties annexed to it, as the true heir.”

The tension between the common law courts with the Spiritual courts and the application of the concept of ‘mulier’ was illustrated in a case which arose in the reign of King Edward III in 1365.  The case involved a sister denouncing her brother as a bastard with no right to be the heir of her father. The brother claimed to be a ‘mulier’ but the Bishop certified him as a bastard to the Justices of Assizes after it was found that his mother Katherine had lived in adultery with a Francis Sulyard when he was begotten. In the Court of Common Pleas, Sergeant Wichingham held:

“In this case, when special matter is pleaded to prove himself mulier, we ought to maintain the jurisdiction of this Court, instead of sending it to be tried by the Court Christian; for as he was born within espousals, albeit he was begotten by another man, still by our law he is mulier, and by the law of Holy Church he is a bastard; therefore we ought to determine it according to our wise laws, rather than send it to the Court Christian, where the laws are contrary.”

This demonstrates the unequivocal rejection of the Christian concept of legitimacy by the English Common Law. While it is beyond the scope of this article to pursue the step by step developments of the presumption of legitimacy over the centuries, it would suffice to prove that the presumption of legitimacy had its roots in social utility rather than actual paternity.

“No Access” and The Framer’s Intent

Section 114 of the Evidence Act was transplanted from the Indian Evidence Act which was in turn drafted by Sir James Fitzjames Stephen.  In the autumn of 1872, Sir James was approached by Lord Coleridge (the then Attorney General in England) to draw a similar code for England. Although the Bill drafted by Sir James was never passed by Parliament, Sir James wrote the proposed Bill into A Digest of the Law of Evidence which in his words were “drawn on the model of the Indian Evidence Act” and “intended to represent the existing law [in England] exactly as it stands”. In the Digest, Sir James laid out the presumption of legitimacy which he intended for England in Article 98:

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within such a time after the dissolution thereof and before the celebration of another valid marriage, that his mother’s husband could have been his father, is conclusive proof that he is the legitimate child of his mother’s husband, unless it can be shown either that his mother and her husband had no access to each other at any time when he could have been begotten, regard being had both to the date of the birth and to the physical condition of the husband, or that the circumstances of their access (if any) were such as to render it highly improbable that sexual intercourse took place between them when it occurred. [emphasis added]

Two observations should be made here. Firstly, if Sir James considered the probability of sexual intercourse occurring depending on the circumstances of the access between the parties, he could not have intended the word ‘access’ to mean actual sexual intercourse. Secondly, the use of the words ‘either’ and ‘or’ strongly implies that the two conditions proposed by Sir James to avoid a conclusive presumption of legitimacy should be read disjunctively. This means that Sir James did not intend the probability of sexual intercourse occurring to be within the meaning of ‘no access’. Bearing in mind that this formulation was intended to codify the common law in England at that time and that Sir James was drawing on the model of the Indian Evidence Act, it is highly likely that ‘no access’ in this Bill bears the same meaning as in Section 112 of the Indian Evidence Act.

In attempting to decipher Sir James Fitzjames Stephen’s motivations in codifying section 112 of the Evidence Ordinance, we should look to the leading English case on the presumption of legitimacy at that time – Banbury Peerage. This case involved a series of questions put to the Judges by the House of Lords in the case of the Banbury claim of peerage. According to the case of Banbury Peerage, there are actually two presumptions under English common law in the nineteenth century. Firstly, the Lord Chief Justice of the Common Pleas delivered the unanimous opinion of the Judges of the Common Pleas that:

“in every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until that presumption is encountered by such evidence as proves, to the satisfaction of those who are to decide the question, that such sexual intercourse did not take place at any time, when, by such intercourse, the husband could, according to the laws of nature, be the father of such child.”

This constituted the first presumption under English Common law. Where a child is born in the continuance of a valid marriage and there was access between the wife and husband, they would be presumed to have had sexual intercourse. This is a rebuttable presumption since evidence that sexual intercourse did not take place would rebut this presumption. Secondly, it was held that:

“after proof given of such access of the husband and wife, by which, according to the laws of nature, he might be the father of a child (by which we understand proof of sexual intercourse between them) no evidence can be received except it tend to falsify the proof that such intercourse had taken place”

The second limb is an irrebuttable presumption in favour of a child’s legitimacy where the husband and wife had sexual intercourse when the child could have been begotten. Turning to Section 112 of the Evidence Ordinance, it is obvious that Sir James Fitzjames Stephen bypassed the significance of sexual intercourse occurring between the parties to a valid marriage. He drew a direct link between the conditions giving rise to the first rebuttable presumption to the result of the second irrebuttable presumption thereby bringing the presumption of legitimacy back to its pre-Banbury roots. We may only speculate why Sir James did this but the work of Sir Harris suggest that there might have been an academic movement in England following the Banbury Peerage case which resented the deviation from the original common law position.

WX v. WW – Distinguishing Legitimacy from Actual Paternity

The Singapore courts have largely avoided addressing the issues of Section 114 of the Evidence Act by deciding the case on another basis. Their hand was eventually forced in an amusing manner when the Singapore High Court decided the case of WX v. WW. The case involves a woman (“WW”) who had a boyfriend (“H”) whom she was intimate with. WW then met the appellant (“WX”) and had sexual intercourse with both H and WX individually. H accompanied WW to the pregnancy test where he immediately proposed marriage in the belief that WW was pregnant with his child. H and WW then got married and WW gave birth to the child on the 21 January 2006. Subsequently, H procured a DNA test and found out that he was not the biological father of the child. This led H to nullify the marriage. WW then sought child maintenance from WX while WX tried to rely on Section 114 of the Evidence Act to show that H was the biological father of the child (This would mean that WX could not be the biological father of the child).

In the Singapore High Court, Justice Lee Seiu Kin held that WX could not rely on Section 114 of the Evidence Act to confer paternity on H. Against the weight of precedent and leading academic opinions on the subject, Justice Lee Seiu Kin turned to a legal dictionary which defined ‘legitimacy’ as “a status … of belonging to a class in society the members of which are regarded as having been begotten in lawful matrimony by the men whom the law regards as their fathers.” In support of his holding, Justice Lee Seiu Kin explained that “[f]urther evidence that the intention in s 114 of the Act is the conferment of legitimacy as a matter of policy rather than biological reality is the fact that the presumption arises even in circumstances where some person other than the husband is likely to be the biological father.” Concluding that Section 114 of the Evidence Act “only applies to confer legitimacy in the circumstances set out in the provision, and not to rebut or invalidate evidence that a man is the biological father of a child”, the Singapore High Court held that WX could not rely on the provision to invalidate evidence that he is the biological father to the child. WX had to maintain the child even though he had married another woman.

Conclusion: Returning Legitimacy to its Pre-Banbury Roots

In distinguishing legitimacy from actual paternity, the Singapore High Court in WX v. WW has arguably construed Section 114 of the Evidence Act consistently with the framer’s intent. The logical conclusion of distinguishing legitimacy from actual paternity is that the child in WX v. WW would now have two fathers – The child is the legitimate child of H and the biological son of WX. Therefore, WW could potentially claim maintenance from both H and WX. The case of WX v. WW has gone on appeal to the Singapore Court of Appeal because the interpretation of Section 114 of the Evidence Act pertains to a point of public interest. It is suggested that this decision will not be overruled. WX v. WW has already been followed by the High Court decision of AAE v. AAF. Finally, given that  legislation in Singapore still discriminates between legitimate children and illegitimate children, WX v. WW would be a welcomed development amongst Singaporeans who believe that “illegitimate” children should not be legally disadvantaged in any way.