B (formerly known as M) -v- L
Neutral citation (2009) IEHC 623.
High Court
Judgment was delivered by Mr Justice Henry Abbott on July 17th, 2009.
Judgment
An application for nullity of marriage on the part of the wife of a male-to-female transsexual, which was heard as a preliminary matter before the hearing of a divorce application by the transsexual, was granted on the grounds that the wife would not have consented to the marriage had she been aware of the reality of her then husband’s sexual identity.
Background
The couple married in 1978. The applicant was at the time of the marriage a man but has since undergone sex-change treatment and is now regarded as a woman and referred to as such throughout the judgment.
The couple obtained a judicial separation in 1993 and the former husband initiated divorce proceedings in 2005, having undergone the treatment in the meantime.
The wife defended the divorce proceedings by seeking a declaration of nullity of the marriage on the grounds of inability to enter and sustain a marriage. The court ordered that this issue be dealt with first.
When the case came on for hearing in February 2009 the parties indicated that they had come to agreement on financial matters.
The court was asked to consider whether either party lacked the capacity to enter into and/or sustain a normal lifelong marriage; whether the wife gave a full, free and informed consent to a purported marriage; if the marriage was void or voidable; whether she had approbated the marriage by her conduct during it and the judicial separation proceedings; and whether she had delayed unreasonably in seeking an annulment.
Prof James Barrett of the Gender Identity Clinic in London was appointed as medical inspector of the parties. An earlier report from Prof Richard Green was helpful in relation to diagnosis, but did not address the issues of capacity to marry.
Decision
Having considered the medical evidence, Mr Justice Abbott stressed the need for previous referral letters and treating consultants reports in such cases. He accepted a diagnosis by the husband’s consultant that he was an “autogynephilic” transsexual.
He also accepted that the wife was not aware of her husband’s transsexual tendencies before the marriage. “From her background and life experience and preference, I have no doubt she would not have consented to marry a person even with . . . a low level of sexual preference and tendency, much less consent to marrying a gynephilic,” he said.
When she discovered her husband’s sexual preference, she coped in her own way, deciding not to have children.
Eventually the marriage ended in separation. It was only after this that the wife discovered a pamphlet from an organisation with which the husband had associated that catered for transsexuals.
It was clear the husband had hidden the true nature of his sexual identity from the wife. It was also only after the separation that the wife learned of the husband’s operation.
Mr Justice Abbott cited the jurisprudence on consent to marriage. The failure to reveal information relating to conduct, rather than the respondent’s inherent disposition and mental instability, did not constitute a ground for the marriage being invalid. There was a clear distinction between conduct on the one hand and incapacity and disability on the other.
He said that where the case involved a lack of consent on the part of the petitioner, the question of approbation did not arise.
He concluded that there was a lack of consent on the part of the petitioner wife because of the presence of gynephilic transvestism which was present throughout the marriage but was concealed before and after by the husband. The lack of consent rendered the marriage void rather than voidable.
He, therefore, answered the questions raised by replying “Yes” to the question as to whether the wife lacked the capacity to enter into and sustain a marriage to a person in the husband’s condition; to this extent the parties lacked the capacity to sustain a marriage with each other, and the wife did not give a full, free and informed consent to her purported marriage.
He said he did not find there was unreasonable delay in seeking an annulment.
The full judgment is on courts.ie.
Marie Baker SC, Siobhán Langford BL and Ross Aylward BL, instructed by McNulty Boylan, for the plaintiff; Gerry Durcan SC and Anne Kelly BL, instructed by Edward O’Mahony, for the defendant.
** In last week's Law Matters we published a judgment F -v- F. We have been informed that the order has been superseded in F -v- F No 2, which is not yet on courts.ie