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Does a child of illegitimate birth have the same rights as a child of legitimate birth?

  • Time:2020-05-19
  • counter:102

In accordance with the Marriage Law of the PRC, a child of illegitimate birth shall have the same rights as a child of legitimate birth.

For the purpose of the Marriage Law, a child of illegitimate birth refers to a child born by a man and a woman who are not married to each other, such as a child born by an unmarried man and an unmarried woman, and a child born by a married man/woman and an unmarried woman/man.

Since the Marriage Law of 1950, China has been recognizing the legal status of children of illegitimate birth and providing them with corresponding legal protection. From the perspective of the provisions of the Marriage Laws of 1950, 1980 and 2001 on children of illegitimate birth, the basic position of China's legislation on equal protection for children of illegitimate birth is very clear, and all of them explicitly stipulates, "Any child of illegitimate birth shall be entitled to the same rights as a child of legitimate birth, which shall not be impaired or discriminated against." In terms of the specific protection for children of illegitimate birth under the Marriage Laws, it can be seen that the legislative protection for children has been constantly strengthened. According to Article 15 of the Marriage Law (1950), "If the biological father of a child of illegitimate birth is proved by his/her biological mother or any other evidence, the biological father shall bear all or part of the necessary living and education costs of the child until the child reaches the age of eighteen. With the consent of the biological mother, the biological father may also claim custody of the child for upbringing. After the birth mother marries another person, if the new husband is willing to bear all or part of the living and education expenses of the woman's original child, the burden of the child's father may be reduced or exempted as appropriate. According to Article 19.2 of the Marriage Law (1980), the biological father of a child of illegitimate birth shall bear all or part of the necessary living and education costs of the child until the child is able to live an independent life. According to Article 25.2 of the Marriage Law (2001), The biological father or the biological mother who does not rear directly his or her child of illegitimate birth shall bear the child's living and educational costs until the child is able to live an independent life. Compared with the Marriage Laws of 1950 and 1980, The current Marriage Law has the following characteristics in terms of the specific protection for children of illegitimate birth: (1) In terms of the party to bear the duty of upbringing, the current Marriage Law emphasizes the duty of upbringing of not only the father but also the mother; (2) In terms of the content of the duty of upbringing, the words restricting "living and education costs" are deleted, such as "necessary", "part or all", so as to make the content of the duty of upbringing clearer and more definite; (3) In terms of the duration of the duty of upbringing, the provision of the Marriage Law of 1980 is inherited, which states that the biological parents shall bear the child's living and educational costs until the child is able to live an independent life rather than simply limiting the duration to the child's age of eighteen.

As for the specific rights and interests of children of illegitimate birth in the kinship, The statement under the Marriage Law that "Any child of illegitimate birth shall be entitled to the same rights as a child of legitimate birth" may be interpreted as follows: Any child of illegitimate birth shall be entitled to any and all the rights which a child of legitimate birth has according to law. The provisions of the Marriage Law in respect of the parents' duty of upbringing of their children, mutual inheritance between parents and children, grandparents' duty of upbringing of their grandchildren, grandchildren's duty of maintenance of their grandparents, elder brothers' or sisters' duty of upbringing their younger brothers or sisters, etc., shall also apply to children of illegitimate birth. The Inheritance Law of the PRC also explicitly stipulates the right to inheritance of children of illegitimate birth. According to Article 10 of the Inheritance Law, in the inheritance relationship, children include children of both legitimate and illegitimate birth, and brothers or sisters include not only brothers or sisters with the same parents but also brothers or sisters with only the same father or mother.

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