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Effect of Marriage on Legitimacy of Children

Whether parents are married at the time a child is born determines whether the child is considered “legitimate.” According to NY Dom Rel Law § 24, children who are born to married parents are presumed to be legitimate children. For purposes of this statute, “marriage” means both marriages solemnized in a religious or civil ceremony as well as common law marriages. However, for this provision of this statute to apply to a common law marriage, it must be valid under the law of the jurisdiction where such marriage takes place. If you have concerns over the status of your children, or any other questions related to a complex family related legal matter, contact an experienced New York family lawyer who has the knowledge and skill to protect your interests in a family dispute.

Marriage and the legitimacy of children

According to NY Dom Rel Law § 24, if the parents were married before the child was born, the child is considered a legitimate child of both of the parents. This is the case even if the marriage is void or voidable.

A marriage that is void is an illegal marriage. There are certain instances in which a marriage is illegal at its inception. Even though the parties may have applied for and received a marriage license and had the marriage solemnized as required, the marriage is void. Void marriages are incestuous marriages, bigamous marriages, and marriages solemnized by someone without the authority to do so.

A marriage that is voidable is a marriage that while legal, can be voided by annulment because there are questions as whether those who entered the marriage were competent to do so. Voidable marriages include marriage by someone who under the age of 18, by someone who was mentally incapacitated, by someone who was mentally ill, by someone who is unable to consummate the marriage, or if the marriage was entered not by force or fraud.

The presumption of legitimacy is significant as it impacts the father’s right to have access to the child, the father’s obligation to pay child support, and the child’s right to inherit. However, even if a child is born outside of marriage, there are procedures for establishing paternity. As a result, the child would have the right to inherit and the father would have the all the rights and obligations of fatherhood that a child born to married parents would have.

Related Statutory Provisions
  1. Marriage a civil contract: New York Domestic Relations Law, section 11
  2. Marriage licenses: New York Domestic Relations Law, section 13
  3. Effect of marriage on legitimacy of children: New York Domestic Relations Law, section 24
  4. Legitimacy of children: New York Domestic Relations Law, section 175
Domestic Relations Law, section 24: Effect of marriage on legitimacy of children

1. A child heretofore or hereafter born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage, or shall have consummated a common-law marriage where such marriage is recognized as valid, in the manner authorized by the law of the place where such marriage takes place, is the legitimate child of both birth parents notwithstanding that such marriage is void or voidable or has been or shall hereafter be annulled or judicially declared void.

2. Nothing herein contained shall be deemed to affect the construction of any will or other instrument executed before the time this act shall take effect or any right or interest in property or right of action vested or accrued before the time this act shall take effect, or to limit the operation of any judicial determination heretofore made containing express provision with respect to the legitimacy, maintenance or custody of any child, or to affect any adoption proceeding heretofore commenced, or limit the effect of any order or orders entered in such adoption proceeding.

Contact the Law Offices of Stephen Bilkis & Associates

New York laws and procedures related to marriage and divorce are complex. If you have concerns about the validity of your marriage, getting a divorce, child custody, or child support, it is important that you immediately contact an experienced New York family law lawyer. Contact the Law Offices of Stephen Bilkis & Associates at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We are here to help. We represent clients in the following locations: Nassau County, Queens, Suffolk County, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.

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