LAWS OF EVE - Same-sex marriages are void ... even after a sex change
Published: Monday | March 16, 2009
In last week's article I set out the grounds on which the Supreme Court could grant a decree of nullity of a marriage. One such ground is that "the parties to the marriage were, at the time of the marriage, of the same sex".
One reader commented that the wording of that ground seemed curious and wondered whether it left open the possibility for transsexuals to argue that gender reassignment will enable them to marry persons who were of the same sex that they had prior to surgery.
Not the first time
This question is not being asked for the first time. In fact, almost 40 years ago, the English court had to address that very issue in the case of Corbett v Corbett (1970). According to the case report, A and C, both male, got married in September 1963. At the time of the marriage, C knew that A had been registered at birth as a male and had, in 1960, undergone a sex-change operation involving the removal of the testicles and most of the scrotum and the formation of an artificial vagina and had since lived as a woman.
In 1963, C petitioned for a declaration that the marriage was null and void and A filed an answer to that petition to argue that C should be prevented from alleging that the marriage was void.
The judge held that a marriage was essentially a relationship between a man and a woman, so the validity of the marriage depended on whether A was a woman or not. On the medical criteria, the judge found that A was biologically male from birth and was only psychologically a transsexual. The marriage was, therefore, void and the decree of nullity was granted.
As recently as 2003, the House of Lords was asked to take a different view of same-sex marriages because the law was lagging behind recent medical and social advances.
The case was Bellinger v Bellinger, B sought a declaration that the marriage was valid. B was born a male and underwent surgery which involved the removal of the testes and penis and, in the words of Johnson J, 'the creation of an orifice which can be described as an artificial vagina, but she was without a uterus or ovaries or any other biological characteristics of a woman' before marrying a man.
Despite strenuous arguments that the failure to recognise the marriage would amount to a violation of human rights, the House of Lords maintained the view that B's application was asking the Court to undertake legal reform, which is not within its purview. A person's sex is determined at birth and no form of surgery will alter that view in the eyes of the law.
Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon and Co. Send feedback and questions to firstname.lastname@example.org or Lifestyle@gleanerjm.com.