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Military Law Review

ILLEGITIMATE CHILDREN AND MILITARY BENEFITS

Spring, 1991

132 Mil. L. Rev. 5

Author

Major David B. Howlett *

Excerpt

I. INTRODUCTION

This article examines the constitutionality of military benefit statutes and regulations as they relate to illegitimate children. A child is legitimate if he or she is born or conceived in wedlock, or if the child's mother was married during pregnancy. 1 Throughout history, 2 societies have subjected illegitimate (or "nonmarital") children to a variety of disabilities. 3 In English common law, the illegitimate child was the child of nobody, or filius nullius. The child could not inherit; the parents had no right to custody; and the child could not assert any rights against either parent for support. 4

Consistent with English common law, early American law considered the illegitimate child to have no family. Reform began in the late nineteenth century, but progressed at different rates in each state. 5

Debates continue about the causes of illegitimacy. Researchers have proposed phenomena ranging from broken homes and bad neighborhoods to supposed psychological defects of the mothers. 6 Researchers have considered and rejected causes as diverse as relative wealth and comparative climate. 7 In some sense, illegitimacy has no specific cause, only effects. Its effects include higher mortality, lower IQ, and psychological problems. 8 Its formal cause is the legal regime that generates the distinction between legitimate and illegitimate children. The immediate causes of nonmarital children "are almost as multifarious as human motives and loves and hates." 9

Virtually all societies in the world today, whether primitive or modern, distinguish between illegitimate children and legitimate children and ...
 
 
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