Children Outside the Register

At the burial, the boy stands with the family.

He is fifteen. He carries a photograph at the front, which is a position given to a son. He is introduced to visitors by the father’s surname, which he has used on every school document since nursery. His father’s brothers embrace him. Nobody in the compound treats his presence as a question, because for fifteen years it has not been one.

Eleven weeks later there is a meeting about the property, and he is not invited to it. When his mother asks why, she is told — not unkindly, and by a man who wept at the graveside — that the family has taken advice, and that the position is complicated.

The advice is wrong. It has been wrong in Nigeria for more than a decade. But being wrong is not the same as being harmless, and the burden of demonstrating that it is wrong now falls on a fifteen-year-old with no money, through his mother, against the people who buried his father.

(A constructed illustration. The pattern is ordinary; the persons are not real.)

A child’s right does not depend on his parents’ ceremony. His proof does.

The Constitution provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. It is one sentence, and it did more to Nigerian succession than any statute of the last fifty years.

The Supreme Court applied it in Ukeje v Ukeje (2014) to strike down a customary rule that excluded a female child from her deceased father’s estate, holding the custom void for conflict with the Constitution. The same court has struck down customary rules disinheriting widows, as in Anekwe v Nweke (2014). The Court of Appeal had earlier condemned a custom that passed a man’s property to a male relation over his own daughters in Mojekwu v Mojekwu (1997), and although the Supreme Court on appeal in that line counselled restraint about condemning a custom in sweeping terms where the issue had not been fully joined, the principle itself was put beyond argument in Ukeje.

The effect is to remove an entire category of argument. A rule of custom that says this child does not inherit because his parents were not married, or because she is a daughter, is not weighed against the Constitution and found less weighty. It is void. It does not operate. A court applying it is applying nothing.

What that provision did was change the question. Before it, the contested question was whether this kind of child inherits. After it, that question is closed, and the only contested question left is whether this is the child — which is not a question of law at all. It is a question of evidence, and it is fought on completely different ground.

One consequence is terminological and causes constant confusion. The word “legitimate” survives in the older statutes, in probate practice and in the vocabulary of families, and it still carries its historical meaning — born within a marriage. What it no longer carries, in a father’s estate, is a consequence. A child may be described as illegitimate in the ordinary speech of the compound and inherit exactly as his half-brother does. The word has been drained of its effect while remaining in circulation, and people continue to be advised on the strength of a label that no longer decides anything.

Most families in the position described in the cold open are still arguing the closed question, which is why so much of the argument is beside the point and so little of it is spent where the case is actually decided.

A child arrives at an estate in one of five positions. They differ not in entitlement but in what must be shown, and the distance between the easiest and the hardest is very wide.

Because Parentage Two carries most of the cases, it is worth being precise about what acknowledgment requires and what it does not.

It requires an act by the father, not a belief held by the mother or a reputation held in the community. The community’s view is evidence of the act; it is not the act. This distinction decides matters.

It requires that the act occurred during his lifetime. Nothing done after death acknowledges anything. The family cannot acknowledge on his behalf, and their willingness to do so — or their refusal — is evidence of what he did, not a substitute for it.

It does not require a document headed as one. There is no form. The strongest acknowledgment evidence is almost always incidental: he wrote the child’s name and his own on a form for another purpose entirely, and that form has been sitting in a school office for nine years.

And it does not require the mother’s status to be resolved. A child may be acknowledged where no marriage existed, where the marriage was void, and where the mother has no claim of her own at all. The two questions are independent, which is why the sibling on unrecognised partners treats the child’s route as belonging to the child rather than to the mother.

The practical instruction that follows is unglamorous and worth more than any argument: what a father can do in one afternoon — sign a document that names the child as his, and lodge it where it will still be found in twenty years — removes an entire category of litigation from his children’s future.

The provision is strong. It is not a solvent, and four limits should be understood by anyone relying on it.

It removed the disability; it did not remove the burden of proof. A right that must be established by evidence is worth exactly as much as the evidence available to establish it, and a claimant with a good right and no documents is in a worse position than a claimant with a weak right and a file.

It did not shorten the process. The child in Parentage Three has the same right as the child in Parentage One and will reach it years later, through a contested proceeding, funded by somebody. Where there is no one to fund it, the right is not enforced, and an unenforced right leaves the estate distributed as though it did not exist.

It did not reach every system alike. Where the parties are governed by Islamic personal law, succession follows that system’s own rules on paternity and entitlement, and the analysis in this essay does not describe it. That system is not a variant of customary law and is not treated as one here; it is set out in the sub-pillar above and stated there as it is.

And it did not create assets. A child’s entitlement is a share of what exists. Where an estate is consumed by administration, by the delay itself, or by relations dealing with property before the position is settled, a vindicated right can arrive at an empty estate. The essay on the widow’s position takes up the same problem from the other side.

The right is settled. The proof is not. Estates are decided by the second one.

Every difficulty in this essay is a difficulty of intestacy. It arises because the law is asked, after the death, to work out who the children are. An instrument answers that question in advance, by name, and the whole of Act Two collapses.

A will names beneficiaries. A named beneficiary does not have to be legitimate, acknowledged, adopted or biologically anyone’s; he has to be identified. The will reaches only what the testator could dispose of, and it is published on probate, which in a household of the kind described here means the disclosure happens all at once and in public.

A trust does the same work without probate and with more control. It can hold property for children who are minors, appoint who administers it, set the ages at which capital passes, and provide for a child whose parentage the family disputes without requiring the dispute to be resolved first. Sibling 09 of this cluster takes the instrument apart, and the seven-step architecture in the set-up cluster is the build.

Where the provision is specifically for schooling — which is what most fathers actually have in mind — the education trust essay in the family governance cluster sets out how it is structured, and why funding education without producing dependence is a drafting problem rather than a moral one.

The letter of wishes carries what none of the instruments can: who these children are, in his own words, written while he can still be asked about it. In a matter turning on acknowledgment, a document in which a father names his children is not merely explanatory. It is evidence.

And where a status can be perfected, perfect it. Register the birth. Complete the adoption rather than leaving it as an arrangement. Put the surname on the record and keep the record. None of it is expensive; all of it is postponed for the same reason — that doing it requires saying out loud what the household has agreed not to discuss.

The law no longer asks whether he was born inside a marriage. It asks who his father was — and only his father could have answered.