Children born out of wedlock entitled to father's wealth

A section of society criticises clandestine lovers who spill the beans for allegedly embarrassing 'first' families in times of grief. Some of the affected women emerge with clandestine babies after the deaths of prominent personalities. Some who appear at funerals with babies born out of extra-marital affairs often demand acceptance to guarantee property inheritance. Does the law protect such children?

Nimu, Nairobi

The Law of Succession Act provides that children born following extra-marital affairs are heirs of their biological fathers. The Constitution also offers a fresh twist as Article 53 provides that a child's best interests are of paramount importance in every matter concerning the baby.

Consequently, cases of women in romantic relationships with wealthy married men wallowing in poverty after the death of their lovers are history. Mistresses who know their rights move to court with evidence of paternity and proving parental responsibility as that the departed paid for their monthly rent, child upkeep and financial maintenance.

It is mainly for property inheritance reasons that most of the mistresses move to court seeking orders to perform DNA tests to prove paternity with 'departed investors'. It is for similar reasons that women are increasingly filing paternity suits at the Children's Courts even when the biological fathers of their babies are still alive.

Moreover, refusing to undertake the paternity tests is not easy as judges and magistrates would issue orders directing that the DNA tests are in the best interest of the child. Most of the women who battle for the estate with the legal widow often file suits on behalf of the illegitimate children.

According to judicial precedents, courts often order that children born of extra-marital affairs have shares in the estate of their late biological father.

Legally, it does not matter whether the departed wrote a Will on how his property should be divided among the children of his legally wedded wife. The mother of his illegitimate biological children can move to court to contest the Will and seek orders for her children to be included as heirs.

The court will mainly require the mistress to prove beyond reasonable doubt that the deceased fathered the child. The law also provides that even a child in the womb has the right to inherit the property of his or her departed father! Therefore, mistresses who have shied away from demanding the property rights of their babies born out of wedlock are now regretting it.

-Harold Ayodo is an Advocate of The High Court of Kenya.