Are marriages involving a transgender person valid?
The current Australian position in relation to marriage is that it must be a union between a man and a woman as stated in the Marriage Act 1961 (Cth) (the Act), but how does the law treat marriages that involve a transgender person? Are the marriages valid? It’s an important question to ask and one that is worth exploring.
The current Australian position
The question of the validity of a marriage involving a person who underwent a transition was considered by the Full Court of the Family Court in the matter of Re Kevin FLC 93-127.
The Full Court rejected the approach adopted in the English decision of Corbett v Corbett (orse. Ashley) in particular the notion that one of the purposes of marriage is that of procreation. The Full Court in Re Kevin stated (at 78,143):
“[W]e reject the argument that one of the principal purposes of marriage is procreation. Many people procreate outside of marriage and many people who are married neither procreate, nor contemplate doing so.”
Additionally, the Full Court also held the term ‘man’ in the Act should be afforded its “contemporary ordinary everyday meaning” (at 78,139).
Ultimately, the Court upheld the validity of Kevin’s marriage and should be regarded as a man for the purposes of marriage as defined in the Act due to some of the following reasons (at 78,170):
Kevin had always perceived himself to be a male;
Kevin was perceived by those who knew him to have had male characteristics since he was a young child;
Kevin undertook sex reassignment surgery;
at the time of marriage, Kevin’s appearance, characteristics and behaviour was perceived as a man by his family, friends and fellow employees;
Kevin was accepted as a man for a number of social and legal purposes;
Kevin’s marriage as a man was accepted in full knowledge of his circumstances by his family, friends and work colleagues.
It should be highlighted, that the Full Court left open the question of whether a person who has yet to undertake a surgical procedure, should be regarded as a member of their psychological gender.