Law Report: Transsexual's matrimonial claim is barred

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J v S-T (formerly J); Court of Appeal (Lord Justice Neill, Lord Justice Ward, Lord Justice Potter) 21 November 1996

On an application for financial relief following the annulment of a marriage the court was entitled, in exercising its discretion in accordance with section 25 of the Matrimonial Causes Act 1973, to take account of the fact that the applicant had practised a grave deception on the other party at the time of the marriage and ought as a matter of public policy to be refused relief.

The Court of Appeal dismissed an appeal by the defendant, a female-to-male transsexual, against a preliminary ruling of Mr Justice Hollis on 25 January 1996 that the defendant be debarred from pursuing a claim for ancillary relief against the plaintiff, following the annulment of their marriage.

The defendant was born a girl in 1946 but from the age of 14 adopted a male identity. In 1972, aged 26, he began a course of testosterone treatment and the following year underwent a bilateral mastectomy, but he never underwent the further recommended surgical procedure of phalloplasty for the construction of a penis.

The defendant met the plaintiff in 1977. She was 19 and sexually inexperienced. They began a sexual relationship in which the defendant was able to engage using a false penis. They began to live together and went through a ceremony of marriage. Using artificial insemination, the plaintiff gave birth to a son in 1987, and a daughter in 1992.

The relationship deteriorated and in 1994 the plaintiff petitioned for divorce. She was subsequently informed, and shown a birth certificate proving, that the defendant had been born a girl. The plaintiff, who was aware of peculiarities in the defendant's physique and that he had used an artificial penis, but believed this was simply because he was not very well endowed, was deeply shocked, having apparently been quite unaware of the defendant's true gender throughout the time they were married.

The plaintiff applied for and was granted a decree of nullity. It was in connection with those proceedings that the defendant, whose contact with the children had been terminated, applied for ancillary relief by way of periodical payments, a lump sum and a property adjustment order in respect of the matrimonial home.

Ben Emmerson (Tyndallwoods) for the defendant; Suzanne Coates (Thomas Eggar Verral Bowles) for the plaintiff.

Lord Justice Neill said there was sufficient evidence to justify the judge's conclusion that the defendant knowingly made a false declaration when getting married that there was no hindrance to the marriage, and had therefore committed the offence of perjury.

The court's power to grant ancillary relief on the grant of a decree of divorce or nullity, under sections 22 to 24 of the Matrimonial Causes Act 1973, was discretionary. In exercising it, the court was required by section 25(2)(g) to have regard to "the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it".

In this case the judge decided that the defendant was barred in limine from pursuing his application. He took into account that the defendant had committed a serious crime against the plaintiffs, and applied the principal of public policy explained in Whiston v Whiston [1995] 2 FLR 268 (in which it was held that since bigamy undermined the fundamental notions of marriage, a bigamist should be barred from claiming ancillary relief).

This court was bound by the decision in Whiston, but it was not necessary to treat it as laying down an inflexible rule that, even where the court was exercising a discretionary jurisdiction to grant ancillary relief, the fact that the marriage was contracted in circumstances involving the commission of a serious crime debarred the guilty party in limine from making a claim.

But it was legitimate to take account of principles of public policy as a guide to the exercise of the court's discretion under the 1973 Act. The fact that the applicant had been guilty of a serious crime and had practised grave deception on the other party to the marriage were clearly relevant circumstances, which in this case fully justified refusing relief.