Scottish peerages and legitimation

Lets say that that the yet unmarried Earl of Scouse in the peerage of
Scotland with a GB barony of Utopia has an illegitimate son, Kevin, with
Brenda Higgens. The child is of course non-titled. Later the Earl
marries Elizabeth Wellborn and they have a son, Joseph, commonly called
Lord Utopia. Liz dies and the Earl marries his childhood sweetheart,
Brenda Higgins, legitimatizing Kevin. Kevin is older than Joe. Would Joe
lose the courtesy title to Kevin, only to gain it back as a substantive
title when their father dies, or what would happen?

Gillian White...

Hmmmm. That's an interesting one. I would imagine that Joe would continue to
be known as Lord Utopia, as he would still be the heir apparent to this
title. There would be no point in allowing Kevin to 'borrow' a title that he
is never going to inherit.

Joseph McMillan...

I'm not so sure. According to statements in the House of Lords back in
1995, Scottish law has always accepted the right of legitimated sons to
succeed to peerages. Lord Kilmarnock, speaking in support of the
Legitimated Persons (Succession to Titles) Bill on March 8, said:

Gillian White...

Now I'm confused - can we make sure we're on the same hymn sheet here? :-)

Joe is the son legitimate from birth, and Kevin is the son legitimated by
subsequent marriage.

The title of Lord Utopia is in the peerage of Great Britain, which means it
descends only to heirs who are legitimate from the outset. This means Joe,
but not Kevin.

This is the relevant part of the article you quoted :

"Furthermore, we have the extraordinary anomaly that a person legitimated in
England by the subsequent marriage of his parents may inherit a Scottish
title but would be debarred from inheriting an English, Irish, British or
United Kingdom title in the same circumstances."

So Kevin can inherit the Scottish earldom but is debarred from the British
barony. If he could never become the substantive Lord Utopia, would he be
able to use it as a courtesy title?

Or am I missing something?

Graham Truesdale...

Does legitimatio per matrimonium subsequens make the child legitimate
'backdated' to their birth, or only as of the marriage? If the latter, Kevin
would be deemed to have been born legitimately when his parents the
Earl and Brenda marry, some years after Joe's birth. So Joe would still
be deemed the eldest legitimate son?

"[A] person legitimated by subsequent matrimony has exactly the same
rights and responsibilities as if he had been born legitimate, with the
outstanding exception in England, Wales and Northern Ireland, but not
in Scotland, of the inheritance of titles of honour. Indeed paragraph
4(2) of Schedule 1 of the Legitimacy Act 1976 expressly provides that
apart from Section 1, which deals with void marriages, 'nothing in this
Act shall affect the succession to any dignity or title of honour or
render any person capable of succeeding to or transmitting a right to
succeed to any such dignity or title'. In this, it simply follows
Section 10 of the Legitimacy Act 1926.

"This is in marked contrast to the situation in Scotland where it has
always been accepted under Scottish common law, subsequently codified
by the Legitimation (Scotland) Act 1968, that persons legitimated by
subsequent matrimony are eligible to succeed to Scottish titles and do
so succeed. Furthermore, we have the extraordinary anomaly that a
person legitimated in England by the subsequent marriage of his parents
may inherit a Scottish title but would be debarred from inheriting an
English, Irish, British or United Kingdom title in the same
circumstances."

Has there ever been an actual instance of this, where a peer's titles were
divided between legitimate and legitimated sons?

cj.buyers...

Not quite the same, but the Irish peerage of Baron Macdonald of Slate,
co. Antrim, and the Baronetcy of Nova Scotia, separated between the
descendants of two brothers for similar reasons. However, the mother
was the same, Louisa Maria La Cost, illegitimate daughter of HRH The
Duke of Gloucester and Lady Almeria Carpenter. She married Lieut-Gen.
Godfrey, 3rd Lord Macdonald, in 1803, after having two boys and a girl.

The eldest son was born in 1800, three years before his parents
married. The third brother, born in 1809, succeeded his father in the
Barony in 1832. However, the Court of Sessions in Scotland held in 1910
that the eldest son was legal heir to the Baronetcy and the
Chieftaincy, allowing his grandson to assume the title.

Let's make it more interesting. Say that Joseph loses the courtesy title
upon his half brother's legitimization. Joe had previously married and
divorced and his ex-wife is still called Lady Utopia. When Joe loses the
courtesy title, is his ex still called Lady Utopia?