Anullment of Marriage

2012 ZONE A

2.  Roger married Alison one year ago; however Alison was actually born a man.  Alison had gender reassignment surgery three years ago during which an artificial vagina was constructed.  However, Alison has only just informed him of this fact as Roger had expressed the desire to start trying for a baby.  Roger is furious with Alison and has demanded an immediate divorce.    Roger is especially angry because he only married Alison because of the amount of pressure he was put under both by her and their mutual friends.  Roger and Alison had been seeing each other for a while and Alison had presented him with an ultimatum.  

Alison is quite upset by Roger’s reaction; she feels that he could be more supportive given that she has had to put up with his inability to maintain an erection since the beginning of their relationship.  Alison feels that that is the real reason the relationship has broken down as they have not actually been able to consummate their marriage.  She had asked him to see a doctor about his problem after hearing that medical treatment was available that could help.  Roger, however, has always refused to do so.  Alison now wishes to end the marriage.   Advise both Roger and Alison on what basis they could individually bring this marriage to an end.

     Before we go into discussion and consider whether the marriage is valid and would it be ended by either party, we have to focus on if there Is a valid marriage in the first place so that a divorce could be granted. If there were absence of grounds for valid marriage then there need to be seen whether the marriage is void or voidable.

The classic definition of marriage in English law is that of Lord Penzance in Hyde v Hyde. There were four limbs that was set for a marriage to be valid and from the fact itself we can conclude there is no valid marriage as one of the important ground is missing in the relationship between Alison and Roger that it must be heterosexual. This principle could be refered to the case of Corbett v Corbett where the court stated that a person’s biological sex is determined at birth and cannot be altered by subsequent surgical intervention. Thus, Roger can rely on the fact that although Alison was a woman when the marriage occurred still it would not be considered as a valid marriage. Since there is no valid marriage thus there is no existence of marriage at all thus, there is no need to seek for a divorce.

Yet, Alison can counter argue stating that there is a valid marriage relying on the Gender Recognition Act 2004 following the case of Bellinger v Bellinger. Thus, applying to the fact, Alison has to fulfill s9(1) where it was stated that she must have a gender recognition certificate in which her gender becomes for al purposes the acquired gender. Thus, as long as Alison lived in the acquired gender throughout the period of two years ending with the date on which the applications is made and she intends to live in the acquired gender until death then she will be the wife of Roger and there is a valid marriage as per R(AB) v Secretary of State of Justice. Yet, on the fact there is no mention of Alison having applied for a certificate thus if she have failed to do so then she could not rely on this and consider herself as a woman as her situation will be taken as per the case of Corbett. But still it should be Alison who should have told George about her past gender transaction which she failed thus this will be a voidable marriage in past. Now with Marriage(Same Sex Couples Act) 2013 s 1(1) marriage of same sex couples is lawful.

On the other hand, Gorge could argue on the ground s12(1)(c) that there was no valid consent on his part when the wedding took place due to mistake or duress. If, he wanted to rely on mistake, it must be shown that he had mistake as to the identity or ceremony. Applying case of Talbot v Talbot the present case can be differentiated as it was a mistake as to identity but in this case it is not as George wanted to marry with Alison and there is only a mistake to attribute and not to identity.

As for duress it need to be understood that, the Justices could take any approach they want thus, it is important to discuss all the approach that have been considered before concluding. In Scott v Sebright, which was older approach in which a man trick woman to take his debt and he told the woman that he would only pay if she marries him. After she denied, the man again trick the woman and brought her to register office, then threaten her that he would shoot if she does not consent to marry him. In this case, Butt J raises the question whether she was in fear, not whether it was reasonable entertained. Whether she was in fear. The petition was granted as she was in fear. He would not have a chance to deny the marriage.

The stricter approach was taken in Szechter v szechter, whether there was an immediate danger to life, limbs or liberty? Applying to the facts, obviously George does not need to fear for his life, limb or liberty as there was nothing threatening him this far. Drawing an analogy to the case of Singh v Singh, George’s petition would be rejected and his claim would fail.

The one approach which is preferred today that might help George to deny the marriage would be the approach in Hirani v Hirani. Court of Appeal held that the test for duress should focus on the effect of the threat rather than the nature of the threat was such as to destroy the reality of the consent and to overbare the will of the individual.