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Published online by Cambridge University Press: 12 February 2016
It has been said that there are no illegitimate children but only illegitimate parents, a paradox which reflects the view that the iniquity of the fathers should not be visited upon the children, that the rights of children should not suffer deprivation because of the “sin” of their parents. So put, it presents a challenge to those many legal systems which discriminate against children born out of wedlock, treating them as illegitimate and denying them rights against their parents or, in some jurisdictions, against their fathers. For all that, we are now witnessing in a number of countries a process which is blurring and largely doing away with the traditional disqualifications and discrimination against illegitimate children. Not only does the violation of the rights of a child because his parents bore him out of wedlock appear to many of us to be immoral in itself, but we go on and urge that it is wholly unreasonable to release the “sinning” parent from his obligations and place the burden of bringing up his child on society at large.
This last view does not, however, give any moral or legal approbation to bringing children into the world out of wedlock but suggests rather that the protection of the institution of marriage and family should properly find expression in the status of the unmarried parents. The problems to which this understanding of the matter gives rise are the subject of the present analysis of the pertinent Israel legislation.
1 Baroness Summerskill, Hansard (H.L.) vol. 280, col. 710, cited in Cretney, S.M., Principles of Family Law (London, 1974) 309.Google Scholar
2 For a comparative survey, see Krause, H.D., Illegitimacy, Law and Social Policy (New York, 1971)Google Scholar; Saario, V.V., Study of Discrimination Against Persons Born Out of Wedlock (U.N., New York, 1967).Google Scholar
3 See Englard, I., Religious Law in the Israel Legal System (Jerusalem, 1975) 189.Google Scholar
4 Sec. 3(c), the Bill of the Succession Law, 1952 (emphasis added). The version of sec. 18 of the Bill of 1958 was “For the purposes of intestate succession it is immaterial whether or not the child was born in wedlock”.
5 This is the view of Tedeschi, G., “The Duty of Maintenance in Civil Law” (1975) 6 Mishpatim 242, 252.Google Scholar According to Z. Falk, a father does not inherit from a son born out of wedlock, whereas a mother does: Falk, Z., “The Legal Position of Children Born out of Wedlock” in Israeli Reports to the Ninth International Congress of Comparative Law (Jerusalem, 1974) 61, 64.Google Scholar
6 13 L.S.I. 73.
7 Sec. 1(a). So also the Succession Law, 1965, sec. 57(d) defines “child” for the purpose of maintenance out of the estate as including a child born out of wedlock. (19 L.S.I. 67).
8 This is the argument of Tedeschi, op. cit.
9 See Tedeschi, , Studies in Israel Private Law (Jerusalem, 1966) 236–37.Google Scholar
10 5 L.S.I. 171.
11 El-Zafdi v. Benjamin (1963) 17 P.D. 1419, 1425.
12 Tedeschi, op. cit. supra n. 5.
13 Family Law Amendment (Maintenance) Law, 1959, sec. 19(b).
14 A and B v. A.G. (1974) (II) 28 P.D. 169. On the rejection of the distinction between married and unmarried parents in this connection in the light of Jewish law, see per Kister J. at 170, 175.
15 Cf. Basson, J.A., “Notice to the Unwed Father and Termination of Parental Rights” (1975) 9 Fam. L. Q. 527.Google Scholar
16 For the interpretation of this concept, see Anon. v. A.G. (1976) (I) 30 P.D. 459.
17 16 L.S.I. 106.
18 Falk's view, op. cit. supra n. 5, is that in the case of married parents it was unnecessary to mention their capacity to agree on the future of their children, whereas such an agreement is essential between unmarried parents. This view cannot be accepted since in the case of reputed spouses no agreement is required, both parents having custody.
19 10 L.S.I. 95.
20 See Shifman, P., Doubtful Marriage in Israel Law (Jerusalem, 1975, in Hebrew) 151–52 and the sources there cited.Google Scholar
21 As Cohn J. put it in Shik v. Ministry of Interior (1971) (II) 25 P.D. 544, 550, “all that the legislature desired is that in this matter there should be no discrimination between children born in wedlock and children born out of wedlock if the mother was the reputed wife of the father”. Recognition of reputed spouses is, in his opinion, necessary in the interest and for the welfare of the children since a single family name is a clear external indication of the family connection.
22 (1956) 20 Divrei HaKnesset 2100, 2101 per Mr. Bar Yehuda, Minister of the Interior; Shik v. Minister of the Interior (1972) (II) 26 P.D. 33, 54.
