Gender Recognition

Under the Gender Recognition Act 2004, a person who has gender dysphoria, and has lived as a transsexual for at least two years and intends to do so until death enables him or her to apply for a gender recognition certificate from the gender recognition panel. This allows legal recognition of the applicant’s new gender, and therefore the holder of the gender recognition certificate is entitled to a new birth certificate, to marry a person of the opposite sex, and also seek a Decree of nullity in respect of an existing marriage on the grounds that it is voidable under S12 (g)1, provided such an application is made within six months of the issue of an interim gender recognition certificate. The new gender will not however affect the applicant’s status as a parent of existing children.

S12 (g)2 provides ‘a marriage celebrated after 31 July, 1971 shall be voidable on the following grounds only, that is to say – that an interim gender recognition certificate under the gender recognition act 2004 has, after the time of the marriage, been issued to either party to the marriage’.

Parties can therefore bring a marriage to an end by issuing a nullity petition under the above section.

The rule generally, is that the petitioner must apply for the Decree within three years of the date of the marriage. This however does not apply to non-consummation cases nor to cases based on any interim gender recognition certificate, and, in any event the court also has discretion to extend the time limit. (Goodwin –v- United Kingdom [2002] and Bellinger –v- Bellinger [2003])

The parties to a suit for nullity are entitled to apply for all those orders in relation to children, property and finance as are available on divorce. In this particular case children born to parents who subsequently obtained the Decree of nullity are automatically legitimate if the parents’ marriage is voidable, because the marriage existed up to the time of the Decree.

In the event that the parties have wills a voidable marriage revokes a previous will. Under s22-24 (a-d) 5 the parties can apply for a range of orders within nullity proceedings.

Section 22 – Maintenance pending suit. A party is able to apply for this. The court may make an order for maintenance pending suit, that is to say an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with a date of the determination of the suit, as the court thinks reasonable.

Section 23 – Financial Provision Orders. On the granting of a Decree of nullity of marriage, the court may make any one or more of the following orders;

  • An order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order;
  • An order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical payments, for such term, as may be so specified;
  • An order that either party to the marriage shall pay to the other such lump sum or sums as maybe specified;

Section 24 – Property Adjustment Orders. A party can apply for an order under this section where on the grant of a Decree of nullity the court may make any one or more of the following orders:

  • An order that a party to the marriage shall transfer to the other party….. Property to which the first mentioned party is entitled;
  • An order that a settlement of such property

Section 24A – Orders for Sale.

Orders for sale of property are available when the court makes an order under section 23 or 24 secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making an order or  anytime thereafter, or may make a further order for the sale of such property as may be specified in the order.

Section 24B - C – Pension Sharing Orders and Pension Lump Sum Orders. Under this provision the court is able to make one or more pension sharing orders in relation to the marriage and the court has power under section 23 to order one party to pay a lump sum to the other party includes, where the benefits which the party with pension rights has or is likely to have under a pension arrangement include any lump sum payable in respect of his death. However these powers cannot be exercised if in relation to a pension arrangement there is either a pension sharing order in relation to the marriage, or it has been the subject of pension sharing between the parties to the marriage.

The Court will consider all the criteria as set out in S25 MCA in determining what is a fair and reasonable division of the matrimonial assets.

Lovell Chohan Solicitors have Family Law, Family Law advanced and Resolution accredited family lawyers who can advise and assist you in this respect.