O'Sullivan Davies Lawyers

Following the 2004 amendments to the Marriage Act 1961 (Cth) (‘the Act’) Australia defines a ‘marriage’ as a voluntary union between a man and a woman to the exclusion of all others.

This begs the question, are marriages involving a transgender person valid? It’s an important question to ask and one that’s increasingly relevant where a transgender person wants to either get married, or, was legally married and has since transitioned.

Marriage validity: Pre-wedding gender reassignment surgery?

In 2003 the Australian Full Family Court upheld the validity of Kevin and Jennifer’s marriage in Attorney- General (Cth) v ‘Kevin and Jennifer’ (‘Re Kevin’) (2003) 172 FLR 300.

Kevin had undergone gender reassignment surgery before he was married and for the purposes of the marriage he was found to be a ‘man’. Their Honours’ stated the terms ‘man’ and ‘women’ in the Act should be given their “contemporary ordinary everyday meaning” which includes post-operative transsexuals who have undergone irreversible surgical procedures (323, 355, 363- 364). They concluded that for the purposes of marriage a person’s gender is determined at the date of marriage and not at birth, and left open the question of whether a person who has yet to undertake a surgical procedure, should be regarded as a member of their psychological gender (378, 382).

The Full Court confirmed that alongside Kevin’s reassignment surgery, he was considered a ‘man’ for reasons as follows (376):

  • He always perceived himself to be a male;

  • Those who knew him perceived him as having male characteristics since he was a child;

  • At the time of his marriage, his appearance, characteristics and behaviour were perceived by his family, friends and fellow employees as a man;

  • He was accepted as a man for a number of social and legal purposes;

  • His marriage as a man was accepted in full knowledge of his circumstances by his family, friends and work colleagues.

It should be highlighted that Kevin’s marriage was valid since he believed he was a man who was marrying a woman. This would likely not have been the case for the purposes of the Act if Kevin did not identify with either gender. Notably gender identification is increasingly relevant given the recent High Court confirmation in New South Wales Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11; (2014) 250 CLR 490 (‘NSW Registrar’) (204-206) that a person may be recorded on the Register of Births, Deaths and Marriages as ‘non-specific’ rather than male or female.

Marriage validity: Post-wedding gender reassignment surgery?

As is outlined above it is the date of marriage, and gender identification at that date, that is relevant to a marriage’s validity. What this means is that if on the day of the wedding there is a man and a women entering into a union to the exclusion of all others then the marriage will be valid.

It should be highlighted that both Jennifer and Kevin in Re Kevin believed they were in a valid marriage. The Act provides that a marriage will be void if there is not real consent by either of the parties for reasons including one party was mistaken as to the other’s identity. Although it has not been commented on by the Court’s persons entering into a marriage should be aware that it is arguable that where gender reassignment has taken place after the parties marriage there no real consent by either or both parties, and there could be grounds for a a declaration that the marriage is void.

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O'Sullivan Davies Lawyers
Level 27,  197 St Georges Tce
Perth WA 6000

Phone : +61 8 9426 4711

Fax : +61 8 9426 4722

info@osullivandavies.com.au

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