Page:An introduction to Roman-Dutch law.djvu/69

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Birth, Sex, Legitimacy
or divorce the presumption of legitimacy is only rebuttable by proof of impotence or non-access.[1] Indeed legitimacy is presumed whenever a child is born during the subsistence of marriage, even though it be born on the very day on which the marriage is celebrated.[2] Pater is est quem nuptiae demonstrant. This is in accordance with the maxim ‘pater is est quern nuptiae demonstrant’.[3] But if the husband can prove sexual relations before marriage unknown to him followed by pregnancy and not condoned by cohabitation subsequent to his discovery of them, he is entitled to have the marriage declared null and void.[4] The uncorroborated evidence of a married woman is not permitted to bastardize her own child.[5] To prevent difficult questions as to paternity, the Dutch Law, following the Civil Law,[6] prohibited remarriage within a certain time after a first husband's death.[7] Annus luctus. This was called the widow's ‘annus luctus’; but in Holland the period of mourning (treur-tijd) varied in different places, with a preference for a term of six months.[8] In the Roman Law re-marriage within the year of mourning entailed penal consequences.[9] This was not the case in the Dutch Law,[10] and in the Colonies

    twelfth month inclusive in a case where the lady's character was thought to be beyond reproach. Voet, loc. cit.; Sande, Decis. Fris. 4. 8. 10. In Ceylon the limit of time is two hundred and eighty days after the dissolution of marriage, the mother remaining unmarried. Evidence Ordinance, No. 14 of 1895, sec. 112.

  1. The presumption in favour of legitimacy may be rebutted by ‘clear and satisfactory evidence’. Fitzgerald v. Green [1911] E. D. L. at p. 462.
  2. Gr. 1. 12. 3; Van Leeuwen, 1. 7. 2; Cens. For. 1. 1. 3. 5; Voet, 1. 6. 5 and 7; V. d. K. Th. 169.
  3. (Paulus) Dig. 2. 4. 5; Voet, 1. 6. 6; Richter v. Wagenaar (1829), 1 Menz. 262.
  4. Voet, 24. 2. 15; Horak v. Horak (1860) 3 Searle 389. It is not so in English law. Moss v. Moss [1897] P. 263.
  5. Schorer ad Gr. 1. 12. 3; Voet, 1. 6. 7.
  6. Cod. 5. 9. 2 (Gratian, Valentmian, and Theodosius, a.d. 381).
  7. Gr. 1. 5. 3, and Schorer's note. Van Leeuwen (1. 14. 14) says that a widow must wait six months after the death of her former husband, unless in the interval she has been delivered of a child.
  8. Fockema Andreae, Bijdragen, vol. i, p. 167; V. d. K. Th. 67.
  9. Cod. 6. 9. 2.
  10. Cens. For. 1. 1. 13. 27; Groenewegen, de leg. abr. Cod. ad loc; Bynkershoek, Quaestiones Juris Privati, lib. II, cap. iv; V. d. K. Th. 68.