Section 21 of The Divorce Act, 1869
Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.
Summary
- This rule protects the inheritance rights of children born before their parents' marriage is annulled.
- It applies if the annulment happens because one parent was already married, but the newer marriage was made in good faith believing the former spouse was dead.
- It also applies if the annulment happens because one of the spouses was insane.
- The court must specify these children in the annulment decree itself.
- These children get the right to inherit from the parent who was legally capable of getting married, just like legitimate children would.
Practical examples
FAQ
1. What happens to the children if an annulment is granted?
If the annulment is due to a good faith belief a prior spouse was dead, or due to insanity, children begotten before the decree are treated like legitimate children for inheritance purposes.
2. Which parent's property do these children inherit?
They are entitled to succeed to the estate of the parent who was legally competent to contract the marriage.
3. Do all annulments protect the children this way?
No, the text specifies this protection only for annulments based on insanity or a former spouse living (when the new marriage was made in good faith).
4. What must the judge do for the children to be protected?
The children begotten before the decree must be specifically listed in the decree itself.
Test yourself
Q1.Under Section 21 of The Divorce Act, 1869, which parent's estate are the specified children entitled to succeed to?
Q2.Under Section 21 of The Divorce Act, 1869, what condition must be met for children to inherit when a marriage is annulled due to a former spouse being alive?
Q3.Under Section 21 of The Divorce Act, 1869, which of the following is a stated ground of annulment that triggers this protection for children?
Q4.If a marriage is annulled for reasons described in Section 19 of The Divorce Act, 1869, what specific procedural step must occur under Section 21 of The Divorce Act, 1869 to protect the children's inheritance?