Spousal Veto and Annulment

Let’s unpack a couple of the issues from yesterday a bit more.

Matrimonial Causes Act 1973, Clause 12(h)

Just to remind you, this allows an annulment of a marriage if someone discovers their spouse has a gender recognition certificate (GRC) but didn’t tell them beforehand.

Shocked Woman

The Minister’s response yesterday was, basically, that such people needed to be able to get out of their marriage quickly.  Yesterday I pointed out that the issue wasn’t so much the “get out of marriage to trans person free” card, but rather the discrimination that would exist between trans people with GRCs and those without.  The clause would only apply to those who have GRCs – making a further disincentive to apply for one.

In the current context where trans people have been convicted for obtaining sex by deception on the simple grounds that they are trans, the Minister’s response continues this alarming trend.  Namely, that trans people must be open and disclose their history in a way that doesn’t apply to pretty much anyone else.

The parallels here are if someone (including, say, a trans person) got married to a widow or widower, or even a divorcee, but the spouse hadn’t told them about their previous marriage – or if the spouse was an ex-prisoner, or any one of a myriad other reasons.  Again “being trans” is singled out for specific treatment.  These other cases would have to rely on clause 12(c).

But, lets go further.  What would happen if clause 12(h) was invoked?  What evidence would the court have to rely on?

The petitioning spouse (the one who’s gone “you what???” and then, presumably in some state of shock, filed for annulment) would be saying that “this person didn’t tell me”, while the trans person would then be forced to say either they did or they didn’t.  But what proof would the trans person have that they did tell their now reluctant spouse?

Ultimately the only evidence would be a dated document signed by the petitioning spouse or a dated photograph of the (presumably shocked) spouse looking at the GRC.  In all other cases you are relying on word of mouth, and it becomes anyone’s guess as to which side the court will drop.

So it’s not only that the trans person will be forced to disclose but, in order for the trans person to be “safe”, that there has to be some level of documentary proof that the trans person did actually disclose.

Admittedly the same burden of proof could be alleged for clause 12(c) as well, but that’s a more general, not focused on trans people, clause.

“Spousal Veto”

Let’s remind ourselves of the issue, then of the Minister’s response in the House yesterday.

The Bill as currently drafted has, in Schedule 5, the following:

(6B) If the applicant is married, and the marriage is a protected marriage, an application under section 1(1) must also include—

(a) a statutory declaration of consent by the applicant’s spouse (if the spouse has made such a declaration), or

(b) a statutory declaration by the applicant that the applicant’s spouse has not made a statutory declaration of consent (if that is the case).

Then further on

The certificate is to be an interim gender recognition certificate if—

(a) the applicant is a party to a protected marriage and the applicant’s spouse does not consent to the marriage continuing after the issue of a full gender recognition certificate,

So, consent is determined by the applicant’s spouse making a statutory declaration of consent.  It cannot be assumed any other way.  If the spouse does not make the statutory declaration of consent then  only an interim GRC can be issued, and that has no real function other than as grounds to initiate divorce – if divorce hasn’t already been initiated in some other way.

Helen Grant

Yesterday Helen Grant said:

I understand that the amendments are intended to remove the so-called “spousal veto” in schedule 5. However, let me be clear that non-trans spouses will not be able to veto their spouses obtaining gender recognition.

I’m not entirely sure she gets it.  If the spouse doesn’t consent, the Bill (as currently drafted) does not allow for a full GRC to be issued.  A married trans person cannot obtain a full GRC without their spouse’s written consent.  This is a veto – it can’t be anything else.

I have to admit that I’m not entirely sure how to resolve the distinction between informing a spouse that gender recognition has been applied for, thereby giving the spouse a “get-out” if they then need it, and allowing the spouse to delay, potentially indefinitely, someone’s gender recognition.

The argument has appeared to be that the spouse needs to consent to a change in status of their marriage.  The government, while removing the distinction between same-sex and opposite-sex marriages with respect to pensions for trans people and their spouses, are wanting to retain it for this purpose – but I can’t see why.  Marriage is surely marriage.

At the point a GRC is applied for the trans person must have been living “in role” for at least two years and have documentary evidence to support that.  By that time, to all intents and purposes the marriage will be a “same-sex” one, for whatever difference that actually makes.  So I can’t really see what the spouse is objecting to – other than, potentially, “oh no, I’m married to someone the state has now registered as trans”.

Which is why I’ve been campaigning for the whole issue of spousal consent to be completely removed.  By all means, have a statutory declaration from the trans person whether they are married or not, and either a statutory declaration from the spouse that they are happy with the application or another statutory declaration from the trans person of the last known contact details for their spouse.  The latter stat dec would simply allow the spouse to be informed of the application (which was actually the initial point).  If, at some point, either of the stat decs was found to be fraudulent then the GRC could be removed on the basis of incorrect information being supplied.

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11 comments

  1. Jennifer Hollis · · Reply

    Personally, I support the spousal veto. I accept that the partner applying for a GRC will have been living ‘in role’ for at least two years prior to his or her application, however, the effect of a GRC is to change her/his gender legally. I can well envision a situation where a spouse, whilst tolerating her/his partner’s transition, does not wish to be married (for e.g. reasons of faith) to a person who is legally of the same gender. IME most married partners of trans persons never envisioned the situation in which, often many years on, they find themselves. That the marriage survived transition is remarkable in itself and, in the circumstances, I don’t think it unreasonable that the non transitioning partner should not have a say in whether their husband/wife change this fundamental term of the original contractual arrangement.

    1. Julian Huppert:
      Under current provisions, their partner would have to agree to allow them to get that certificate. Therefore, if I am married to somebody and wish to transition and change my gender, they get to veto whether that is fully legally recognised. Why should that be? A relationship might have terminally broken down for some reason, in which case it is possibly heading towards divorce, but that may not be so. The couple might not wish to go through that, yet one person is allowed to say to the other, “You may not do this; you may not legally change your gender fully. You will have to force through a divorce, which can take a very long time.” We should try to avoid the spousal veto.

      Mike Freer:
      Does my hon. Friend agree it is bizarre that a man or woman who is transitioning can have surgery and change their name but cannot have a gender realignment certificate without spousal approval?

      Julian Huppert:
      I find it very bizarre. There are a number of anomalies in the whole process because of how it is set up, but a gender recognition certificate may be applied for only two years after someone has transitioned into the acquired gender full time, so there has already been quite a long time to try to sort out other issues. Amendments 13 and 14 would simply end the spousal veto, so that people who transition do not have to rely on their spouses to give approval. Some spouses will not give permission for that to happen.

      1. Jennifer Hollis · ·

        Julian, Mike, a person is free to transition and have GRS (at least, in theory) it is a matter for them, their needs, their conscience, their circumstances and their psychiatrist. However, do you consider it reasonable that a wife/husband should find the contractual terms of their original marriage changed without having had any say in the matter? At least, where there is consent, the proposals remove the current absolute requirement for divorce. Where spousal consent is not forthcoming and having a GRC is not negotiable, it’s open to the applicant to initiate a divorce.

  2. What is the practical effect? Distinguish a “marriage” from a “relationship”- there could be either or both. In a relationship, the cis partner can give an ultimatum: if you do that I will leave. Or s/he can consent. In a marriage, either gender recognition or the refusal to consent to gender recognition would be “unreasonable behaviour” to allow a divorce. If the relationship is over, the question is only, does the trans or cis partner have to seek the divorce?

    If you are married (whether or not separated) you have obligations to your spouse.

    s12(h) of MCA inserted by the GRA 2004 seems reasonable in context- inability to consummate, communicable venereal disease, pregnant by another party. In opposite sex marriage there is the normal chance of having children. Unknowingly marrying a trans person makes that impossible. Perhaps there should be no annulment on any such ground, but given that there is, non-disclosure of a GRC seems to fit in the list the law allows. I don’t think we should have to disclose trans status if we pick someone up in a bar, but should if we are going to cohabit.

    The result of the MSSC Bill will be that a marriage can subsist after a GRC is issued. I think that is a step forward.

    1. In reverse order, the issue with the Matrimonial Causes Act is not that it discriminates against trans people (which it does) but rather that it discriminates only against those trans people who have a GRC. If you don’t go for a GRC, then you can never be subjected to section 12(h), even if you don’t disclose your gender history.

      For the spousal veto, the issue is not the best case, but the worst case. When I mentioned this to a couple of cis people today, one came straight back with his divorce took four years because his ex-wife just dragged her heels over every detail, and changed her mind every time it was possible to do so. Someone elsewhere has stated a divorce went on for over six years. Are we really saying that it’s acceptable for someone to forego gender recognition for that length of time simply because their ex is being horrid?

      In addition, there are several other contracts that an individual is part of – marriage is only one – an important one, but only one. Let’s take another contract – that with your pension company. Your pension company may well lose out financially if you gain gender recognition. So, given the contract argument that the government is relying on, why isn’t it then mandatory for your pensions company to also give formal approval.

      The fundamental issue is that it’s handing a veto over someone’s human rights to another person who may well be hostile to that individual. That, to me, is a major problem.

      1. Not quite. Same sex marriage remains a subtly different creature from opposite sex marriage. If a trans woman has transitioned before marriage, but not obtained a GRC, even if she attends the registry office in a long white dress she will be recorded as a male on the marriage certificate. She could not possibly fail to disclose before the marriage, and would not be right to try.

        I don’t think gender should have any legal significance or be legally noticed- for most people it is obvious what gender they are, and for those it is not, it does not matter- but I doubt that will happen.

      2. Gender isn’t recorded on the marriage certificate. My understanding is that this will not change.

      3. The “Condition” column on the certificate serves the purpose of indicating gender: Spinster/Bachelor, Divorcee/Divorced, Widow/Widower, etc.. You hadn’t noticed that?

        The bill also dictates that legal males shall be termed husbands, and legal females wives.

        It seems likely that separate registers will also be used to indicate the type of marriage, and where a switch due to gender recognition is involved – with serious privacy implications.

        It is distressing that these, and problems with the GRA – huge shortcomings with which have prevented many being able to obtain legal recognition, or marry at all, but seem unknown to those taking the lead on this – are being handled by people whose main concern seems to be restoration of previous marriages, or obtaining compensation for loss of those marriages, to the exclusion of those with relevant expertise. I imagine the civil servants are rather grateful for that. Indeed I wonder if they engineered it.

      4. Well, treated as male, anyway, or else how would the differences in marriage- adultery, consummation, etc- apply?

  3. Sunbird · · Reply

    I have a GRC but don’t object to 12(h) of MCA 1973. The wording isn’t perfect but it is necessary.

    Consider the case of somebody A marrying a man B. Upon going to bed the first time to consummate the marriage, the A discovers either that B has had metoidoplasty and doesn’t have what she considers phallus, or has had phalloplasty and she feels uncomfortable (physically or emotionally with a phallus with a pump. B may claim consummation on technical legal grounds but A may not feel that the consummation was what s/he expected. Clause 12(h) provides for voidability in those circumstances. The only alternative would be to add something about surgically constructed neo-vaginas or neo-penises and that might be worse.

    12(h) in any event is hedged with two important restrictions. Firstly, it is time-limited to 3 years. That perhaps should be 6 months and that is the change which should have been sought. Anyway, the second restriction is that the judge is to refuse the application to void if it would be unfair on the individual with a GRC. If, as you claim, voiding the marriage would be a) discriminatory or b) contrary the the human rights of the GRC holder, then under European law the judge must then refuse the application. That is how English law works. The statute has broad provisions and reasonableness is then interjected by judges.

    So, once European law is layered on, there can be no discrimination on grounds of gender reassignment.

    Next you suggest that 12(h) discriminates against a GRC holder compared with somebody who has transitioned but doesn’t hold a GRC. The comparison is inapt I suggest. In order to marry, birth certificates are needed and, if that doesn’t show the gender the prospective spouse was expecting, s/he is forewarned to investigate further and to postpone or cancel the marriage. Stealth is only possible at the point of marriage either with a GRC, or by concealment of a birth certificate in the wrong gender. In the latter case, 12(c) of MCA 1973 would probably apply. So for a stealthy GRC holder 12(h) would apply, for a stealthy non-GRC holder 12(C) would apply. Quite which sub-section applies is neither here no there and I would say there is no difference at all between holding a GRC or not holding one, contrary to your own conclusion.

  4. Sunbird · · Reply

    A spouse cannot block award of a GRC, only delay it until the marriage has been dissolved. There is nothing to stop somebody applying for an Interim GRC and using that to void the marriage using 12(g) of the Matrimonial Clauses Act. That is hard to block. So all an obstructive spouse can do is to delay award of a full GRC during the course of the marriage.

    Returning to 12(h), I think you are also wrong about the burden of proof. You suggest that the “trans person” (an inaccurate term in this context as somebody with a GRC ceases to be trans – read GRA carefully). In 13(3) the judge has to be satisfied that the person seeking to void the marriage was ignorant that his/her partner held a GRC.

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