The parties had gone through a form of marriage, but the purported husband was many years later revealed to be a female to male transsexual. The marriage had been annulled. There was now an application for ancillary relief.
Held: Ancillary relief might be available to a trans-sexual whose marriage is annulled. The principle of public policy identified was not determinative, but on the facts, and in the light of Mr. J’s conduct, no court could properly have exercised its discretion to grant him ancillary relief.
CS Potter LJ: ‘By s 11(c) of the 1973 Act, a marriage is void if the parties are not respectively male and female. It is plain that the use of the word ‘marriage’ in such a case is no more than convenient shorthand for a purported ceremony of marriage. . . . For the purpose of determining whether a particular human being is of a particular sex, the criteria are biological: see Corbett v Corbett (orse Ashley) [1970] 2 All ER 33 at 48, [1971] P 83 at 106 and Rees v UK (1985) 7 EHRR 429 (App 9532/81), (1986) 9 EHRR 56 and Cossey v UK (1990) 13 EHRR 622. While it may be that the advance of medical science may lead to a shift in the criteria applied by the English courts, it is plain that at present, the position is that laid down in Corbett v Corbett and that, even in jurisdictions which have extended the criteria in the case of transsexuals, a ‘female to male’ transsexual is not generally regarded as having satisfied the criteria of masculinity unless endowed (by surgery or otherwise) with apparent male genitalia. In those circumstances it is also plain that the defendant was well advised not to defend the suit for nullity brought against him by the plaintiff.
However, although a marriage void for the reason that the two parties are of the same sex is not merely a void but a meretricious marriage which cannot give rise to anything remotely matrimonial in character, this has not historically prevented a party from seeking a decree of nullity in respect of it.’
Ward LJ (dissenting) took the view that the principle of public policy that no one should profit from their own wrong applied. He also commented on the fact that they had received fertility treatment together: ‘The apparent ease with which they were able to obtain this treatment without the truth being disclosed or discovered is, for me, one of the puzzling and, I feel bound to add, unsatisfactory features of the case.’ and
‘It is suggested that the Act has made a subtle but perhaps important change to the terminology. What governed Ormrod J’s decision in Corbett’s case, based as it was on ecclesiastical principles, was whether the parties were ‘ a man and a woman’. It may be – but I express no view about it – that the choice ‘male and female’ has left the way open for a future court, relying on the developments of medical knowledge, to place greater emphasis on gender than on sex in deciding whether a person is to be regarded as male or female. There is a body of very respectable academic opinion making that point: see, for example, Cretney and Masson Principles of Family Law, 5th ed (1990) pp 46-48; S Poulter ‘The Definition of marriage in English Law’ (1979) 42 M.L.R. 409, 421-425 and A. Bradney, ‘Transsexuals and the Law’ [1987] Fam. Law 350.’
Sir Brian Neill said: ‘It is not necessary for the purpose of this appeal to consider whether the decision of Ormrod J in Corbett v Corbett … requires re-examination in the light of modern medical advances and in the light of decisions in other jurisdictions, or whether it is distinguishable because the words used in section 11(c) of the Act of 1973 are ‘male’ and ‘female’ which, I suppose, it might be argued, indicate a test of gender rather than sex.’
Judges:
Ward and Potter LJJ and Sir Brian Neill
Citations:
Times 25-Nov-1996, [1998] Fam 103, [1997] 3 WLR 1287
Statutes:
Matrimonial Causes Act 1973 25(1)
Jurisdiction:
England and Wales
Citing:
Applied reluctantly – 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 by:
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
See Also – J v C and E (a Child) (Void Marriage: Status of Children) CA 15-May-2006
The parties had lived together as a married couple. They had had a child together by artificial insemination. It was then revealed that Mr J was a woman. The parties split up, and Mr J applied for an order for contact with the child.
Held: The . .
Cited – Bellinger v Bellinger CA 17-Jul-2001
Transgender Male may not marry as Female
Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 03 November 2022; Ref: scu.88963
