From 'bastard' to equal child: the law on children born outside marriage

What did 'illegitimacy' mean in English law?

In English law, illegitimacy was the legal condition of a child born to parents who were not married to each other, and it carried real effects on inheritance and family rights. Bastardy was not a formal status in the way that villeinage was, but it had legal consequences, and bastards generally could not inherit ^[5]. The word itself comes from Old French and Medieval Latin, and the source of the root is uncertain ^[5].

The medieval law was already technical. The Provisions of Merton of 1235, also called the Special Bastardy Act 1235, allowed bastardy to be proved by jury trial, except in real actions, instead of requiring a bishop's certificate ^[5]. The fact that bastardy needed its own rules of proof shows that the question had practical weight. One narrow exception to the bar on inheriting applied where an eldest son was born outside marriage and a second son was born after the parents married ^[5].

For centuries there was no remedy for the child. Until 1926 there was no possibility of legitimising a bastard after the event ^[5]. A child's status was fixed at birth, whatever the parents later did. That rigidity is the starting point for the reforms of the twentieth century, which moved in stages: first legitimation by later marriage, then inheritance rights, and finally a general rule of equal treatment.

The social side of the question is covered elsewhere on this site. The vocabulary of the subject is discussed in the words used for being born out of wedlock, and the human cost for mothers in the twentieth century is covered in forced adoption and unmarried mothers in the UK.

Timeline

1. 1235The Provisions of Merton (the Special Bastardy Act 1235) allow bastardy to be proved by jury trial instead of a bishop's certificate; bastards generally cannot inherit.
2. 1926The Legitimacy Act 1926 introduces legitimation by the parents' later marriage; until then there was no way of making a bastard legitimate after the event.
3. 1969The Family Law Reform Act 1969 allows a child born outside marriage to inherit on the intestacy of a parent.
4. 1986The Law Reform (Parent and Child) (Scotland) Act 1986 abolishes the status of illegitimacy in Scots law.
5. 1987The Family Law Reform Act 1987 states the general principle that relationships are read without regard to parents' marriage, and abolishes affiliation proceedings.
6. 202251.4% of births in England and Wales are registered outside marriage or civil partnership (51.3% in 2021, the first year above half) [7][11].

What did the Legitimacy Act 1926 change?

The Legitimacy Act 1926 made it possible for the first time for a child born outside marriage to become legitimate when the parents later married each other. The Act is described on legislation.gov.uk as an Act to amend the law relating to children born out of wedlock, and its first section is headed "Legitimation by subsequent marriage of parents" ^[4]. A later commentary states that before 1926 there was no possibility of legitimation after the event ^[5].

The reform was limited. It did not make unmarried parents equal to married ones, and it did not remove the label from children whose parents never married. The legal effect was that a child could move from one category to the other because of a later act of the parents. A child whose parents did not marry stayed in the old category, and the rules of inheritance and succession still depended on the category.

The 1926 Act also marked a change in outlook. For the first time a statute treated the child's position as something the law could repair, and it did so through the parents' marriage. The Act softened the consequences of birth outside marriage without removing the line between legitimate and illegitimate children.

The Family Law Reform Act 1969 took the next step. It allowed a child born outside marriage to inherit on the intestacy of a parent ^[5]. A child could now share in the estate of a mother or father who died without a will, although the child still lacked a general right to be treated as a member of the family for every legal purpose. Scotland moved on its own path, which is described below.

How did the Family Law Reform Act 1987 remove the distinction?

The Family Law Reform Act 1987 removed the distinction by providing that, unless a contrary intention appears, references to a relationship between two people are read without regard to whether their parents, or the parents of anyone through whom the relationship is traced, were ever married to each other ^[1]. This is the general principle in Part I of the Act, and it extends to England and Wales ^[1]. It applies to the Act itself and to later enactments and instruments, so it works as a rule of interpretation rather than a list of rights.

Section 1(2) deals with later legislation that refers to a person according to whether the parents were married to each other at the time of birth, and section 1(3) lists the people who are treated as legitimate for this purpose. They include persons treated as legitimate under the Legitimacy Act 1976 (among them legitimated persons), persons who have a parent under sections 42 or 43 of the Human Fertilisation and Embryology Act 2008, adopted persons under the Adoption and Children Act 2002, and anyone otherwise treated in law as legitimate ^[1].

The rest of the Act carried the principle into practice. Its headings show that Part II dealt with rights and duties of parents, including provisions on parents not married to each other, and with financial relief and maintenance agreements. Section 17 abolished affiliation proceedings, the old procedure by which a mother could seek a maintenance order against the father of her child outside marriage ^[2]. Part III dealt with property: section 18 with succession on intestacy and section 19 with dispositions of property ^[2].

Part IV and Part V added procedure. They covered declarations of parentage and scientific tests, and the registration of a father where the parents are not married, as well as re-registration ^[2]. These provisions are less well known than the principle in section 1, but they are what let a court or a registrar establish who a child's parents are without reference to marriage.

Section 19 shows how wills and trusts were brought into line. For dispositions made after the section came into force, and for wills and codicils made after that date, references to a relationship between two people are construed under section 1. Using the words "heir" or "heirs" does not by itself show a contrary intention ^[3]. The effect is that a gift to a person's children or grandchildren is read without regard to whether their parents were married, unless the document shows a different intention.

Are any differences left today?

A few differences remain, mainly around hereditary titles and the acquisition of parental responsibility by fathers. Neither is a matter of the child's own status, but both show that the law has not been rewritten at every point.

On titles, section 19(4) of the 1987 Act provides that where property devolves along with a dignity or title of honour, the section does not sever the property from it, and the property devolves in all respects as if the section had not been enacted ^[3]. In practice the rules of inheritance for hereditary titles were left as they were. A child whose parents were not married therefore does not benefit from the 1987 reforms in relation to such a title.

On parental responsibility, the birth mother has it automatically, and a father or second female parent may have it automatically, depending on the circumstances. Married partners, or civil partners, of the birth mother usually have it from the child's birth, and a biological father who marries or forms a civil partnership with the birth mother later gains it at that point ^[9]. Unmarried parents can acquire it by jointly registering the birth with the mother; otherwise an unmarried parent can apply for it ^[9]. The registration route applies to births registered on or after 1 December 2003 in England and Wales, 4 May 2006 in Scotland and 15 April 2002 in Northern Ireland ^[10]. The rules differ for same-sex couples and in cases of fertility treatment or surrogacy ^[9]. The GOV.UK page does not describe differences between the nations of the UK.

Scotland has gone further than England in its terminology. Section 1 of the Law Reform (Parent and Child) (Scotland) Act 1986 is headed "Abolition of status of illegitimacy." It provides that a person whose status is governed by Scots law cannot be illegitimate, and that the marital status of a person's parents is disregarded when determining that person's legal status or relationships. Actions for declarator of legitimacy, legitimation or illegitimacy are no longer competent ^[6]. The section was substantially amended by the Family Law (Scotland) Act 2006 with effect from 4 May 2006 ^[6].

For England and Wales, the wording is more cautious. The Act speaks of parents who "were not married to each other" rather than naming a status, so the statutory language no longer relies on the label itself ^[1]. The position in Northern Ireland was not checked for this article.

How common are births outside marriage now?

More than half of all births in England and Wales are now registered outside marriage or civil partnership. In 2022 the figure was 51.4%, against 48.6% inside a marriage or civil partnership, and the Office for National Statistics noted that more births were registered outside than inside ^[7]. The share had first passed one half in 2021, when 51.3% of live births were registered to women who were not married or in a civil partnership ^[11]. Of those births outside marriage or civil partnership, 69.3% were joint registrations by parents living at the same address ^[7]. The ONS release was dated 17 May 2024, and the page now carries a notice that it has been discontinued and superseded by the Births in England and Wales series ^[7].

The most recent ONS summary page opened for this article reports 594,677 live births in England and Wales in 2024, a rise of 3,605, or 0.6%, from 591,072 in 2023, and the first increase since 2021 ^[8]. That page, released on 1 July 2025, does not give the share of births outside marriage or civil partnership, so this article does not quote a 2023 or 2024 percentage. Readers who need the latest figure should check the ONS Births in England and Wales tables.

These numbers change the meaning of the question. When the law first allowed legitimation in 1926, children born outside marriage were a minority and the rule marked a deviation. Today a majority of children start life with parents who are not married to each other, and many of those parents live together. The detailed trend, including cohabitation and attitudes, is covered in the article on births outside marriage in the UK.

The statistics also explain why the legal debate has moved. Joint registration by the parents is one of the routes by which an unmarried father acquires parental responsibility ^[9]. The remaining legal questions for families outside marriage concern money and property on separation, which are discussed in the article on reform of cohabitation law.

Frequently asked questions

Does an unmarried father have parental responsibility?

Not automatically, but he can acquire it. A birth mother has parental responsibility automatically. An unmarried father can obtain it by jointly registering the birth with the mother (for births registered on or after 1 December 2003 in England and Wales), by applying for it, or by later marrying the mother or forming a civil partnership with her.

Can a child born outside marriage inherit from both parents?

Yes. Since the Family Law Reform Act 1969 a child born outside marriage can inherit on the intestacy of a parent, and section 1 of the Family Law Reform Act 1987 requires family relationships to be read without regard to whether the parents were married. Section 18 of the 1987 Act deals specifically with succession on intestacy.

Are hereditary titles still restricted to children of married parents?

In general, yes. Section 19(4) of the 1987 Act says that property that devolves with a title of honour continues to devolve as if the section had not been enacted, so the 1987 reforms did not alter the rules on titles. The wider rules on succession to titles were not checked for this article.

Is the word 'illegitimate' still used in UK law?

Rarely. The Family Law Reform Act 1987 speaks of parents who were or were not married to each other, and Scots law has abolished the status of illegitimacy altogether by the Law Reform (Parent and Child) (Scotland) Act 1986. The Legitimacy Act 1976 still refers to legitimated persons in the 1987 Act's exceptions.

Did Scotland abolish illegitimacy separately?

Yes. Section 1 of the Law Reform (Parent and Child) (Scotland) Act 1986 provides that a person whose status is governed by Scots law cannot be illegitimate. The section was substantially amended with effect from 4 May 2006 by the Family Law (Scotland) Act 2006.

Does the law treat the mother and father differently?

Yes, on parental responsibility. A birth mother has it automatically, while a father who is not married to the mother, and not in a civil partnership with her, must usually register the birth jointly with her or apply for it. Married fathers usually have it from birth.