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Marriage between woman and trans man is void

Gender Recognition Certificate had not been obtained at date of ceremony

The High Court has held that a marriage between a woman and a trans man is void because both parties were legally female at the time of the ceremony.

In P (Transgender Applicant for Declaration of Valid Marriage) [2019] EWHC 3105 (Fam), Mr Justice Cobb heard an application for a declaration, pursuant to section 55(1)(a) of the Family Law Act 1986 ("the FLA 1986"), that the marriage conducted on St Valentine's Day in 2009, between AP and JP, is valid.

In 1990, when 34 years of age, the applicant (referred to as 'AP') underwent gender re-assignment surgery, transitioning from female to male.  He had lived as a male for nearly 19 years at the point when he married JP who is a woman, and who was born a woman.  At the time of the marriage in 2009, AP had not obtained a Gender Recognition Certificate (a 'GRC'), and his birth certificate had not been changed. His birth certificate showed him still as a female.

Having analysed the law and applied it to the facts of the case, Cobb J reached the following conclusions:

i) In the absence of a GRC, under domestic law, AP's legal sex is and always has been female;
ii) As such, domestic law regards the marriage entered into by AP and JP in 2009 as having been contracted by two legal women;
iii) At the relevant time, a marriage between two persons of the same sex was void at its inception and the Court does not have the power to make the declaration sought under the FLA 1986;
iv) The coming into force of the Marriage (Same Sex Couples) Act 2013 did not alter that position, as it does not have retrospective effect;
v) The position in domestic law is not altered by anything in the jurisprudence of the ECtHR or the CJEU.

Cobb J noted that section 55 of the FLA 1986 does not confer a power to make a declaration that a marriage was void at its inception (see section 58(5)(a)): in such cases the court may issue a decree of nullity (see section 58(6)). Whilst a decree of nullity is declaratory only, and cannot effect any change in the parties' status, Cobb J said that there may be some advantages in the parties obtaining a decree: (i) it provides the parties with certainty, (ii) it is a judgment in rem, so that no-one may subsequently allege that the marriage is valid, and (iii) it empowers the court to make certain ancillary orders.  It will be open to the parties now to apply for an order declaring their marriage a nullity; AP and JP have indicated at the hearing before me their intention to do so.

Cobb J added:

"75. There is a potential impediment to this route.  Having found that the marriage entered into between AP and JP is indeed void, if (as appears likely), AP and JP wish to apply for a decree of nullity, section 11 now (as amended by the MSSCA 2013) does not appear to empower the court to issue such a decree. Neither the MCA 1973, nor the MSSCA 2013, makes transitional provision for same sex couples who married prior to its implementation.

76. If the outline analysis ... above is correct, this may raise issues under Articles 8 and/or Article 14 of the ECHR. If so, then the Court will need to consider whether section 11 of the MCA 1973 can be read compatibility with the ECHR pursuant to section 3 of the HRA 1998 and, if not, whether a declaration of incompatibility needs to be issued under section 4 of the HRA 1998.

77. If that situation arises, I will be likely to invite further submissions from the Advocate to the Court and give notice to the relevant Secretary of State pursuant to section 5 of the HRA 1998, and rule 29.5 and Practice Direction 29A of the Family Procedure Rules 2010."

For the judgment, click here.