P (Transgender Applicant for Declaration of Valid Marriage)

A person without a Gender Recognition Certificate must be treated under domestic law as having their birth sex. A marriage entered into before gender recognition is therefore assessed by reference to that legal sex. A marriage between two persons legally of the same sex was void under the law then in force, and the later legalisation of same-sex marriage does not retrospectively validate it. The court cannot use the declaratory jurisdiction under the Family Law Act 1986 to declare such a marriage valid. Neither the ECHR nor EU law required a different result. The parties may instead seek a decree of nullity, although the statutory route for doing so may itself raise human-rights issues.

AP, a transgender man who underwent gender reassignment surgery in 1990, married JP, a woman, in 2009. AP had no Gender Recognition Certificate and his birth certificate continued to record him as female. He sought a declaration under section 55(1)(a) of the Family Law Act 1986 that the marriage was valid. The issue was whether his acquired gender could be recognised without a certificate and, if not, whether domestic, Convention or EU law nevertheless required recognition of the marriage. The court also considered the possible availability of a decree of nullity.

1. Application dismissed. In the absence of a Gender Recognition Certificate, AP’s legal sex was female. The marriage was therefore contracted between two persons legally of the same sex.
2. Under the Gender Recognition Act 2004, legal recognition of acquired gender depends on the statutory application and certification process. Surgical transition, a general practitioner’s letter or a passport recording the acquired gender does not itself alter legal sex.
3. The marriage was void at inception under section 11(c) of the Matrimonial Causes Act 1973, as then in force. Section 55 of the Family Law Act 1986 did not empower the court to declare a marriage void at inception; the appropriate route was a decree of nullity under section 58.
4. The Marriage (Same Sex Couples) Act 2013 operated prospectively. It did not retrospectively validate a marriage void when celebrated. The court had no discretion to recognise the marriage as valid.
5. The ECHR did not require recognition of same-sex marriage in 2009 or at the date of judgment. Any interference with private and family life was likely justified by the coherent statutory system for gender recognition and by the legal alternatives then available. MB v Secretary of State for Work and Pensions concerned discrimination in social-security eligibility and did not require recognition of acquired gender outside the statutory scheme. Coman v Romania was confined to free movement rights.
6. The parties could seek a decree of nullity, but the amended section 11 of the Matrimonial Causes Act 1973 appeared not to provide a straightforward route for a pre-2014 same-sex marriage. That possible statutory gap could raise issues under Articles 8 and 14 of the ECHR and might require consideration of sections 3 and 4 of the Human Rights Act 1998.

First-instance decision. No earlier decision in the same proceedings was stated.