The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in court, but the plaintiff said that his wife had known the true position. He now appealed an order refusing him ancillary relief. The marriage was annulled.
Held: The majority of the court refused to dismiss the applicant’s ancillary relief claim on the public policy ground. ‘Although the power given to the Court under Section 25 of the Matrimonial Causes Act l973 gives the court the broadest discretion ‘in deciding whether to exercise its powers… and, if so, in what manner’, we must, if we are strictly to answer the question posed in the preliminary issue, decide whether or not this claim is debarred on grounds that it is contrary to public policy.
It seems to me that the answer to the question whether the claim is tainted with turpitude depends not on whether the person against whom the claim is made will suffer disadvantage; but rather on whether there is a discernible public interest which will be damaged by the court’s sanctioning the prosecution of the claim. ‘ The court considered the nature of marriage and whether the claimants actions had done so much to undermine it as to disallow an action.
Citations:
[1996] EWCA Civ 1016, [1998] Fam 103, [1998] 1 All ER 431
Links:
Statutes:
Perjury Act 1911 3, Matrimonial Causes Act 1973
Jurisdiction:
England and Wales
Citing:
Distinguished – Whiston v Whiston CA 8-May-1995
A bigamist is unable to claim ancillary relief in the second marriage; would be against public policy. Since bigamy was a serious crime which undermined fundamental notions of monogamous marriage, the Court would not as a matter of public policy . .
Cited – Regina v Tan CA 1983
Tan and others were accused of keeping a disorderly house having advertised: ‘Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble . .
Cited – Corbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .
Cited – Rees v The United Kingdom ECHR 17-Oct-1986
The applicant had been born and registered as a female, but later came to receive treatment and to live as a male. He complained that the respondent had failed to amend his birth certificate.
Held: The court accepted that, by failing to confer . .
Cited – Cossey v The United Kingdom ECHR 27-Sep-1990
A male to female transsexual who had undergone full gender reassignment surgery wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary . .
Cited – Bateman v Bateman 1898
An Ecclesiastical Court has power to order payment of alimony pending suit. . .
Cited – Dunbar (otherwise White) v Dunbar 1909
In a case alleging non-consummation of a marriage, the court discussed the purpose of the 1907 Act: ‘The object of that Act, so far as nullity suits are concerned, was to remedy a defect that previously existed. In some cases of nullity, for . .
Cited – Ramsey v Ramsey (otherwise Beer) 1913
The parties had contracted a bigamous mariage, though each in fact believed it not to be so. As to the court’s powers to order maintenance under the 1907 Act: ‘It is quite clear that the Matrimonial Causes Act 1907 gives me power to grant . .
Cited – Gardiner (otherwise Phillips) v Gardiner 1920
A petition for nullity of a marriage was based upon an allegation of incapacity: ‘Every case of this kind must be decided on its own facts, and an appeal for permanent maintenance after a decree of nullity is not an appeal to a set of fixed . .
Cited – Talbot v Talbot 1967
A marriage had been celebrated, but in fact both parties were women.
Held: The marriage was annulled: ‘there was plainly no marriage and pronounced a decree nisi (of nullity) saying that the decree could be made absolute forthwith.’ . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – P v S and Cornwall County Council ECJ 30-Apr-1996
An employee at an educational establishment told management that he intended to undergo gender reassignment. He was given notice of dismissal.
Held: The scope of the Directive was not confined to discrimination based on the fact that a person . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Gray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
Cited – Re Hall 1914
Hamilton LJ said: ‘The (suggested) distinction (between murder and manslaughter) seems to me to encourage what, I am sure, would be very noxious – a sentimental speculation as to the motives and degree of moral guilt of a person who has been . .
Cited – Hardy v Motor Insurers’ Bureau CA 1964
The court was asked whether insurance pursuant to the Road Traffic Act 1960 would provide valid cover for the benefit of a third party injured by deliberately criminal conduct on the part of the driver.
Held: Diplock LJ said: ‘The rule of law . .
Cited – Cleaver v Mutual Reserve Fund Life Association CA 1892
The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a . .
Cited – Re H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Puttick CA 1981
The applicant, then Astrid Proll, fled bail in Germany when awaiting trial on terrorist charges, entered England and under a false name, and married Mr Puttick. She resisted extradition saying that under the 1948 Act she was now a British National. . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Regina v Registrar General, ex parte Smith CA 1991
The applicant was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive . .
Cited – Euro-Diam Ltd v Bathurst CA 1990
The illegality defence was invoked in response to a claim on a property insurance.
Held: The court noted the extension of the concept of ex turpi causa non oritur actio: ‘It applies if in all the circumstances it would be an affront to the . .
Cited – In re Royce (Deceased) 1985
The court considerd an application under the 1975 Act where the claimant had been convicted of the manslaughter of her husband with a finding of diminished responsibility, and was the sole beneficiary under his will. The Forfeiture Act 1982 was not . .
Cited – Pearce v Brooks 1866
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as . .
Cited – Beresford v Royal Insurance Co Ltd CA 1937
Major Beresford had shot himself. The court considered the applicability of the forfeiture rule in a case involving a suicide: ‘suicide when sane is by English law a felony. This has been so from very early times. The law is thus succinctly stated . .
Cited – Lindo, By Her Guardian v Belisario 5-Jun-1795
(Consistory Court of London) Sir William Scott considered the notion of marriage: ‘The opinions which have divided the world, or writers at least, on this subject, are, generally, two. It is held by some persons that marriage is a contract merely . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Vervaeke v Smith CA 1981
The issue was whether a Belgian decree pronouncing void a marriage celebrated in England should be recognised here. The parties had entered into the marriage with no intention of ever living together. Relying on its notion of public policy, the . .
Cited – Egerton v Earl of Brownlow HL 1853
The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called . .
Cited – Spiers v Hunt 1908
The marriage tie and the married state was held to be so fundamental that it was morally wrong and against public policy to become engaged whilst still married. . .
Cited – The Ampthill Peerage Case HL 1977
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial.
Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: ‘The law knows, . .
Cited – Blunt v Blunt 1943
Viscount Simon considered the variety of options available to a court faced with an allegation of adultery: ‘I would add a fifth (consideration) of a more general character, which must, indeed, be regarded as of primary importance, namely, the . .
Cited – Hyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .
Cited – Kelly (orse Hyams) v Kelly 1932
Lord Merrivale P said: ‘In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage law could be played . .
Cited – In re Giles Deceased 1972
A woman had killed her husband, but been convicted of manslaughter rather than murder on grounds of diminished responsibility. A hospital order was made under the Mental Health Act 1959. It was argued that in these circumstances the forfeiture rule . .
Cited – Kassim v Kassim 1962
In the case of a marriage void for bigamy the court had no jurisdiction to withold a decree of nullity. . .
Cited – Fender v St. John-Mildmay 1937
The general rule against becoming engaged whilst still married does not apply when a decree nisi has been pronounced. However, Lord Atkin said: ‘There is real substance in the objection that such a promise tends to produce conduct which violates the . .
Cited by:
Cited – Sudershan Kumar Rampal v Surendra Rampal CA 19-Jul-2001
The parties were divorced, but when the husband applied for ancillary relief, the wife petitioned for nullity on the basis that the marriage was bigamous. The husband countered that she had known that his first marriage had only ended after this . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 03 November 2022; Ref: scu.140883
