W v W (Nullity)
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Court | Family Division |
Marriage – Nullity – Incapacity of wife – Sex of wife indeterminate at birth – Wife registered as male at birth – Wife undergoing sex-change operation before marriage – Whether wife ‘woman’ for purposes of marriage – Matrimonial Causes Act 1973, s 11(c).
The respondent was born of indeterminate sex but was registered with a boy’s name and as a boy at her father’s request. Throughout her childhood she behaved and dressed like a girl. During puberty she had noticeable breasts and a female body shape. Testosterone injections administered against her wishes to make her body more masculine and stop her breasts growing failed to have any significant effect. From her late teenage years the respondent dressed and lived as a woman. In her thirties the respondent began treatment with oral oestrogen and later had gender reassignment surgery. Her first marriage to a man (X) was brought to an end by a decree of nullity on the grounds that the parties were not respectively female and male at the time of the marriage. The respondent then married the applicant, W. Within three years of marriage the respondent issued a petition for divorce from W, while W sought a decree of nullity on the grounds that at the date of the marriage he and the respondent were not male and female respectively, pursuant to s 11(c) of the Matrimonial Causes Act 1973. He did not, however, seek to avoid the marriage on the ground of non-consummation. The respondent contended that she was female at the time of the marriage ceremony, and did not rely, in support of this contention, on the results of modern research into the aetiology or causation of transsexualism. It was common ground that W was a male.
Held – In cases where the court was called upon to decide whether a person was male or female for the purposes of marriage, both physical and psychological factors fell to be taken into account. The physical factors were chromosomal, gonadal, genital and hormonal, as well as secondary sexual characteristics such as distribution of hair and breast development, and if these factors were congruent the biological test laid down in Corbett v Corbett [1971] P 83 would be satisfied. When, however, the genital criteria were ambiguous and it could not be said that they were approaching male or female, it would be wrong, notwithstanding the importance accorded to those criteria in that biological test, to determine a person’s sex by a decision as to which side of the male/female line the genital criteria fell. Moreover, the capacity of a person to consummate a marriage as a male or a female was a factor, although not a decisive factor, in considering whether that person was a male or a female for the purposes of marriage; and the court had regard to the effect, or the potential effect, of surgery. In the instant case, the medical evidence was that the respondent’s chromosomal
and gonadal sex was male, but that the genitalia were ambiguous and the respondent’s bodily habitus and gender orientation were female. Thus the Corbett biological test was not satisfied and the most convenient description of her gender was one of physical inter-sex. With regard to the ability to consummate marriage, there was no evidence that the respondent had been unable to consummate her marriage as a female but without surgery she would have been unable to consummate marriage in either a female role or a male role. It followed that, having regard to the factors in the biological test, the medical evidence and the fact that the respondent was able to consummate her marriage to W, she was a female for the purposes of that marriage. Accordingly, the petition would be dismissed.
Per curiam. On the true construction of the 1973 Act, greater emphasis can be placed on gender rather than sex, and greater emphasis can be placed on the financial, civil, contractual and general living arrangements of marriage rather than on the point that it is a relationship based on sex. Furthermore, since the wording of s 11(c) was included in the knowledge of the fact that there are tragic cases in which there may be doubt as to whether a person is male or female, it was the view and intention of Parliament that everyone is either male or female for the purposes of marriage and the section was intended in part to deal with those cases.
Cases referred to in judgmentAiredale NHS Trust v Bland[1994] 1 FCR 485, [1993] AC 789, [1993] 1 All ER 821, [1993] 2 WLR 316, [1993] 1 FLR 1026, CA and HL.
Corbett v Corbett (orse Ashley) [1971] P 83, [1970] 2 All ER 33, [1970] 2 WLR 1306.
Cossey v UK[1993] 2 FCR 97, (1990) 13 EHRR 622, [1991] 2 FLR 492, ECt HR.
DE v A-G (falsely calling herself DE) (1845) 1 Rob Eccl 279, 163 ER 1039.
Dennis v Dennis (Spillett cited) [1955] P 153, [1955] 2 All ER 51, [1955] 2 WLR 817, CA.
Hayward v Hayward (orse Prestwood) [1961] P 152, [1961] 1 All ER 236, [1961] 2 WLR 993.
Imperial Tobacco Ltd v A-G [1981] AC 718, [1980] 1 All ER 866, [1980] 2 WLR 466, HL.
M v M [1991] NZ FLR 337, NZ Fam Ct.
Mahadervan v Mahadervan [1964] P 233, [1962] 3 All ER 1108, [1963] 2 WLR 271.
Rees v UK[1993] 2 FCR 49, (1986) 9 EHRR 56, [1987] 2 FLR 111, ECt HR.
SY v SY (orse W) [1963] P 37; sub nom S v S (orse W) (No 2) [1962] 3 All ER 55, [1962] 3 WLR 526, CA.
Sapsford v Sapsford and Furtado [1954] P 394, [1954] 2 All ER 373, [1954] 3 WLR 34.
Sheffield and Horsham v UK[1998] 3 FCR 141, (1998) 27 EHRR 163, [1998] 2 FLR 928, ECt HR.
ST v J (transsexual: void marriage) [1997] 1 FCR 349; sub nom S-T (formerly J) v J [1999] Fam 103; sub nom S-T (formerly J) v J [1998] 1 All ER 431, [1997] 3 WLR 1287; sub nom J v S-T (formerly J) (transssexual: ancillary relief) [1997] 1 FLR 402, CA.
Vervaeke (formerly Messina) v Smith [1983] 1 AC 145, [1982] 2 All ER 144, [1982] 2 WLR 855, HL.
W (orse K) v W [1967] 3 All ER 178n, [1967] 1 WLR 1554.
Wicken v Wicken[1999] 1 FCR 109, [1999] Fam 224, [1999] 2 WLR 1166, [1999] 1 FLR 293.
ApplicationThe applicant sought a decree of nullity in respect of his marriage in 1998 to the respondent on the grounds that at the date of the marriage he and the respondent were not male and female respectively. The facts are set out in the judgment.
Suzannah Cotterill (instructed by Buss Murton) for the husband.
Martin Ward (instructed by Bonneton de Sarlat) for the wife.
Cur adv vult
10 October 2000. The following judgment was delivered.
CHARLES J. IntroductionThe applicant seeks a decree of nullity in respect of his marriage to the respondent on the grounds that at the date of the marriage he and the respondent were not male and female respectively. It is common ground that the applicant is and was male. The issue before me is therefore whether the respondent was, or was not, a female at the date of the marriage ceremony (see s 11(c) Matrimonial Causes Act 1973 and Corbett v Corbett (orse Ashley) [1971] P 83 at 106, [1970] 2 All ER 33 at 48). In this judgment I refer to the report of Corbett v Corbett (and others) in the All England Reports because these were the reports cited to me. So far as I am aware there is no material difference between these reports and others of the same cases.
I heard argument and evidence in private but I am delivering this judgment in public. In doing so I have identified the parties by letter. The letter I have used does not correspond to their names.
The respondent maintains that at the time of the marriage ceremony she was female (I shall use the male or female pronoun as seems appropriate in the relevant context).
Corbett v Corbett set a biological test for determining a person’s sex for the purposes of marriage. The test is that the determining factors or criteria are biological and if the gonadal, chromosomal and genital tests are congruent that determines the person’s sex. I deal with this case in far greater detail later in this judgment.
In broad outline and notwithstanding statements in later cases that the biological test set out in Corbett v Corbett might now merit reconsideration in the
light of medical and legal developments that have taken place since it was decided, neither side invited me to take this approach on the facts of this case.
The approach of the respondent through counsel was that this was not a case where the biological test set and applied in Corbett v Corbett was satisfied or provided the answer and therefore there was no need for me to refuse to follow it. It was submitted that this case was within the category of case that Ormrod J ([1971] P 83 at 106, [1970] 2 All ER 33 at 48–49) in Corbett v Corbett said must be left until it comes for decision. It was, therefore, argued that it was open to me to apply a different and extended test to the biological test set and applied in Corbett v Corbett, which involved a person who satisfied that test.
The position of the applicant was that the biological test set out in Corbett v Corbett could and should be applied in this case and that when this was done it founded the conclusion that the respondent was not a female at the time of the marriage.
Unless I explain that this is not the case when I refer to ‘marriage’ in this judgment I do so in the sense explained by Potter LJ in his judgment in ST v J (transsexual: void marriage) [1997] 1 FCR 349 at 393; sub nom S-T (formerly J) v J [1999] Fam 103 at 146, where he says:
Background‘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.’
I shall set this out by way of a chronology which contains findings of fact (and many facts which were not in dispute).
1947 The respondent was born in the North of England.
1947 The respondent was registered with a boy’s name and as a boy.
The respondent says (and I accept) that she was told by her mother before her death that because she was born of indeterminate sex the doctor asked her parents whether they wanted the respondent...
To continue reading
Request your trial
-
Bellinger v Bellinger
...83, 27 EHRR 163, [1998] 2 FLR 928, ECt HR. Van Oosterwijck v Belgium (1980) 3 EHRR 557, [1980] ECHR 7654/76, ECt HR. W v W (nullity) [2000] 3 FCR 748; sub nom W v W (physical inter-sex) [2001] Fam 111, [2001] 2 WLR 674, [2001] 1 FLR AppealWith the leave of the Court of Appeal, the petitione......
-
Bellinger v Bellinger
...case; chromosomal, gonadal and genital. Accordingly, the petition would be dismissed. Corbett v Corbett [1970] P 83 applied, W v W[2000] 3 FCR 748 distinguished. Cases referred to in decisionA-G v Otahuhu Family Court [1995] 1 NZLR 603, NZ HC. Corbett v Corbett [1971] P 83, [1970] 2 All ER ......