English High Court judge dismisses application for decree of nullity of 2009 marriage of transgender man without GRC

About this case:

• Citation:
  [2024] EWHC 1197 (Fam)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Mr Justice Cobb

Applicant AP, whose application was supported by his wife and first respondent JP, argued that current UK marriage law was incompatible with his ECHR rights. In 2019, the same High Court judge that heard the present application held that AP’s marriage to JP was void. The Secretary of State for Justice, as second respondent, argued that a decree was not necessary in this case.

The application was heard by Mr Justice Cobb. Charles Hale KC, Michael Edwards, and Tom Tabori appeared for the applicant. The first respondent was present but not represented, while Tom Cross appeared for the Secretary of State for Justice and Sarah Hannett KC appeared as Advocate to the Court.

Status not affected

The applicant, aged 68 at the time of making the application, underwent gender reassignment surgery in 1990 when he was 34. He was provided with a letter from his GP confirming his gender reassignment on 9 July 1990. On 14 February 2009, he married JP, who was born female, but at the time of the marriage he had not obtained a Gender Recognition Certificate and his birth certificate still showed him as female.

In 2017 AP contacted the Department for Work and Pensions to enquire about his pension entitlement. He was advised that, despite having a letter from his GP, if he wanted his marriage to be recognised as lawful, he would have to either obtain a declaration of validity or ‘re-marry’ JP again once he was legally recognised as male. A GRC recognising the applicant’s legal sex as male was issued in 2022, and he married JP validly in 2024 on the 15th anniversary of their original wedding.

It was agreed by the parties that the court had no jurisdiction under section 11 of the Matrimonial Causes Act 1973 to grant a decree of nullity in respect of the 2009 marriage. However, it was submitted for the applicant that, to comply with Articles 1, 8, 12, and 14 ECHR, a transitional provision ought to be read into the 1973 Act to allow for a right to apply for a decree of nullity of a marriage celebrated before 13 March 2014, when same-sex marriage became legal in England and Wales, in which the parties were not respectively male and female.

For the Secretary of State it was submitted that AP’s status would not be affected by whether decree was granted or not, as his 2009 marriage was already void. He could not be said to be a victim per section 7 of the Human Rights Act 1998, nor could be claim victim status on the basis that there may be others affected by the repeal of section 11(c) of the 1973 Act. The arguments of the Advocate of the Court aligned with those of the Secretary of State.

No legal impediment

In his decision, Cobb J began by saying: “The fateful communication from the Department for Work and Pensions in 2017, which exposed the invalidity of the 2009 marriage, understandably caused AP and JP considerable confusion and upset. The revelation has in turn triggered two legally complex sets of consecutive court proceedings over many years. I have no doubt whatsoever that AP’s desire for clarity and certainty in respect of his marital status is important to him and to JP, as it is indeed important for the State.”

On whether AP could claim victim status, he said: “As it turns out AP and JP have been able to marry without having in their hands a decree of nullity; there was no legal impediment to them doing so, and there is no evidence that the 2024 marriage will not be universally recognised. Now that they are married, they have all the rights available to each other under Part II of the MCA 1973. There is therefore no proper basis on which I can conclude that AP is a ‘direct’ victim of any alleged unlawful act under the ECHR.”

He added: “There is no proper basis me to treat him as a ‘victim’ on behalf of other transgender people who married before [13 March 2014] without a Gender Recognition Certificate. The ECHR does not allow complaints in abstracto alleging a violation of the convention, nor does it allow actio popularis for the interpretation of ECHR rights. I accept Mr Cross’ argument that AP cannot show that he is now (or arguably ever was) a member of a class of people who risk being directly affected by the omission of section 11(c) MCA 1973.”

Cobb J concluded: “Section 3 HRA 1998 provides that primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights, but only ‘so far as it is possible to do so’. It is in my judgment not ‘possible’ for me to re-write section 11 MCA 1973 to include the words which Mr Hale advances; this would have the effect of re-inserting (albeit in a modestly adapted and more limited form) a statutory provision which was specifically repealed.”

The application was therefore dismissed.