The High Court dismissed an application by a transgender man seeking a decree of nullity in respect of his 2009 marriage so that he could remarry his wife with a view to reconciling pension entitlements.
Background:
AP was a fully transitioned trans man at the time he married his partner JP, a woman, in 2009 although he did not have a Gender Recognition Certificate (GRC). This meant that, in law, both parties to the marriage were female. At the time, same-sex marriage was not legally recognised in the UK. Accordingly, their marriage, as held by Cobb J in AP v JP [2019] was void. His GRC was issued in 2022 and AP validly remarried JP in 2024 on the 15th anniversary of their original wedding.
The main question, in this case, relates to whether the introduction of the Marriage (Same-Sex Couples) Act 2013, which repealed Section 11(c) MCA 1973, left a lacuna in the law for transgender individuals who married a person of the opposite sex, prior to same-sex marriage being legalised.
Decision:
The problem is that, since the enactment of the Marriage (Same-Sex Couples) Act 2013, couples can no longer use a recourse in nullity but, at the same time, their marriage is void in law. The applicant sought either a declaration of incompatibility with the European Convention of Human Rights (ECHR), or for Section 11 MCA to be “read down” to include recourse to nullity for transgender individuals in this unusual situation.
Regarding the victim status, Cobb J noted that there was no proper basis to conclude that AP was a victim of any unlawful act under the ECHR. The fact that AP and JP were able to get married without having a decree of nullity plays an important role. He went on “There is no proper basis for 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.”
The Court was also not convinced that they could read down Section 11 MCA 1973 to include recourse to nullity for transgender individuals. Section 3 of the Human Rights Act 1998 only requires the judges to give effect ‘so far as it is possible to do so’, which was not possible in this instance.
Implications:
This case highlights that transgender couples who married without a GRC before the entry into force of the Marriage (Same-Sex Couples) Act 2013 are, in fact, not legally married. As such, they do not need to apply for a decree of nullity as their initial marriage will be legally void. The best advice in those cases is to (re)marry so that the partners will be entitled to all the rights, including pension entitlements. This judgement is an interesting read as it contains a detailed analysis of the law on ‘victim’ status.