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This week we talk about an issue that has got many people talking: Are children that are born outside marriage (usually referred to as children born out of wedlock) the same as children born in a marriage? The question is do these children enjoy the same rights and entitlements? Many people ask, “Can children born out of wedlock inherit from their fathers’ estate?”

Back in time they were called derogatory names such as “bastards”, “illegitimate” and this resulted in them suffering a lot of discrimination. In our local languages we refer to these children with all sorts of names which bastardises these children.

Under common law children born outside marriage suffered a lot of discrimination as they could not inherit from their fathers unless the fathers had written a will which provided for them.

This was very discriminatory and seemed to punish children born outside marriage for something that they had no control over. If any child could choose the circumstances under which they are born they would all choose to be born to married persons but this is not always the case.

The new Constitution however, gives a very clear dispensation as it clearly spells out that a child should not be discriminated against for the mere fact that they are born outside marriage.

Section 56(3) of the Constitution, in articulating the grounds of non-discrimination, specifically mentions that no person should be treated in an unfairly discriminatory manner on the ground of whether they were born in or out of wedlock.

This had always been the position of the previous constitution but people never paid heed as they left out children born outside marriage from benefiting from their fathers’ estates.

The High Court made a ruling in June 2015 where it clearly spelt out that children born out of wedlock have the same rights to their parents’ estate and property as those that are born in marriages.

This resulted in a large outcry as some married women felt that this provision disadvantaged them. Some were of the opinion that these children are benefiting from what they will have worked hard for with their spouses.

Some even stated that these children born out of wedlock should only benefit from their fathers when they are alive and when he dies they should not lay any claim.

There are so many women who feel that this is an unfair provision as women will not respect marriages and in the words of one woman “they will simply go around giving birth to children with married men knowing that all the children will benefit from their fathers”.

However, most of the complaints towards this position of the law focuses on the mothers of these children and not on the best interest of the child.

This is exactly the mischief that the law sought to address ie children regardless of whether they are born within a marriage or outside marriage should have their welfare adequately provided for.

This is so because children never choose their circumstances, they are just born therefore they cannot be punished for something they have no control over.

The Constitution, in section 19, notes that in any issues relating to a child, “the best interests of the child concerned are paramount”. In this instance it is important that the welfare of the child born outside marriage be catered for even beyond the father’s death.

The child still has needs regardless of the fact that the father would have passed on; they still need to eat, they still need to go to school, they still need to access good health, to have shelter and all the other necessities that any child would need.

This provision of the law is very progressive as it ensures the protection and promotion of children’s rights and it also lightens the burden on women who in most cases carry the heavy burden of having to raise children single handed.

This bolsters the tenet that when children are born both parents have an obligation to provide for their children regardless of the status of those children that is to say whether they are born in or outside marriage.

The law is very clear, children born outside marriages have an inherent right to benefit from their father’s estate so people should always look out for these children when coming up with a distribution plan in a deceased person’s estate.

Mothers and guardians of children born out of wedlock should ensure that these children benefit from their father’s estate as they are rightfully entitled to.

The law always seeks to provide for the vulnerable and in this instance children are adequately protected by the provisions of the law that shun discrimination and inequality.

• Written By: Tariro Tandi, Transformative Justice Manager: For feedback, questions and comments please feel free to email @[email protected] or to send a WhatsApp message on 0777 828 201 and we will definitely address them. Look out for the next article in this column next week and the Kwayedza every Thursday. Let’s discuss the law. For a 24 hour response to Gender Based Violence Issues, call our toll free number 08080131: hotlines 0776736873 /0782900900