Family

Marriage - 'wife' correctly registered as male at birth but thereafter living as female - declaration of validity of marriage to man refusedBellinger v Bellinger: CA ( Dame Elizabeth Butler-Sloss President, Lords Justice Thorpe and Robert Walker): 17 July 2001The petitioner, who had been registered at birth as male, was a transsexual female who had undergone gender reassignment treatment.

She married a man who supported her petition for a declaration that her marriage was valid at its inception and subsisting.The judge refused on the ground that the words 'male' and 'female' in section 11 of the Matrimonial Causes Act 1973 were to be determined by reference to biological criteria and that accordingly the petitioner was a biological male and therefore not a woman for the purposes of marriage.

The Attorney-General intervened.Laura Cox QC and Ashley Bayston (instructed by Clive Ardley, Law For All, Brentford) for the petitioner; Andrew Moylan QC and Timothy Amos (instructed by the Treasury Solicitor) for the Attorney-General.Held, dismissing the appeal (Lord Justice Thorpe dissenting), that the words 'male' and 'female' were not interpreted in the 1973 Act; that in the present state of medical knowledge there were no criteria that could be applied at birth other than the chromosomal, gonadal and genital factors identified in Corbett v Corbett [1971] P 83; that the question whether it would be consistent with public policy to recognise that a person should be treated for all purposes, including marriage, as a person of the opposite sex to that which he/she had been correctly assigned at birth was a question for Parliament; that the legal recognition of marriage was a matter of status for the court to decide; and that, accordingly, the status of the petitioner was male and she was not therefore a woman for the purposes of marriage.