Does a sex change nullify a marriage?

Does a sex change nullify a marriage?

In December of 2018 Justice Austin of the Family Court refused an application to nullify a marriage. The marriage occurred between two individuals, one of whom at the time of marriage identified as a female the other identified as a male. Neither of the spouses were under any illusion as to who it was that they were marrying.

After the party’s second child was born, the Respondent revealed that they identified as a female. The Respondent and the Wife supported each other during the surgery for gender reassignment and the parties subsequently sought that their first union be nullified so that they could re-enter into marriage as a same sex couple.

There are limited avenues for a validly constituted marriage to be declared void.  One of those is a mistake as to the identity of the other party. In the case before Justice Austin the parties argued that the Applicant did not know the Respondent’s current female persona at the time of marriage. Justice Austin declined their application and said that the Respondent presented as a man at the time that they were married and that the subsequent gender change “did not expunge history”.

“The Applicant may not then have known the depth of the Respondent’s commitment to the female gender but that did not amount to a mistake of identity” and that “the Respondent was and remained the same wise, kind, loyal spouse she intended to marry. In fact her love for the Respondent makes her want to marry her again.”

The Judgment of Justice Austin is available to be viewed online here.

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Merridy Elphick