P v P (Transgender Applicant for Decree of Nullity: Human Rights)

A marriage void from its inception does not require a decree of nullity to establish its status. The inability to obtain such a decree does not engage Articles 8 or 12 of the ECHR unless it creates an insurmountable legal impediment or materially impairs the substance of the right to marry. Article 14 requires discrimination within the ambit of another Convention right. A1P1 cannot be used to establish a prospective property right where the underlying entitlement to financial relief has not been established. Section 3 of the Human Rights Act 1998 does not permit the court to recreate a statutory provision deliberately repealed by Parliament. Section 11(a)(iii) of the Matrimonial Causes Act 1973 concerns procedural requirements governing the formation of marriage, not the parties’ legal sex.

The applicant, a transgender man, had married the first respondent, a woman, in 2009 without holding a Gender Recognition Certificate. In earlier proceedings, the court held that the marriage was void because, under the law then applicable, the parties were legally of the same sex: [2019] EWHC 3105.

After obtaining a Gender Recognition Certificate, the parties lawfully married in 2024. The applicant nevertheless sought a decree of nullity to obtain certainty concerning the earlier void marriage and possible access to financial remedies. The Secretary of State for Justice opposed the application. The issues were whether section 11 of the Matrimonial Causes Act 1973 could be read compatibly with Articles 8, 12, 14 and A1P1, whether a declaration of incompatibility should be made, and whether section 11(a)(iii) applied.

1. Application dismissed. The applicant was not a direct or potential victim for the purposes of section 7 of the Human Rights Act 1998. His marriage was already void without a decree, the General Register Office recognised that status, and the parties had lawfully married. He had no established risk of losing access to financial relief.
2. Following and applying Akhter v Khan, the inability to obtain a decree of nullity did not engage Article 12. There was no insurmountable legal impediment, unreasonable restriction or material impairment of the substance of the right to marry. The three-week administrative delay and need to provide earlier court documents did not alter that conclusion.
3. Article 8 was engaged by the facts in the general sense of private and family life, but the failure to grant a decree of nullity was not a breach. A right to nullity could not consistently be derived from Article 8 when it did not arise under Article 12.
4. The Article 14 claim failed because the alleged difference in treatment did not fall within the ambit of another Convention right and was not shown to result from a prohibited ground, including transgender status. The A1P1 claim also failed: any financial entitlement was contingent on the prior establishment of a valid or void marriage and did not amount to an existing possession or sufficiently established legitimate expectation.
5. Section 11 MCA 1973 states the exhaustive grounds on which a marriage is void. Section 11(a)(iii) addresses procedural requirements concerning the formation of marriage, not the parties’ legal sex. Section 3 HRA 1998 could not be used to reinsert, in adapted form, section 11(c), which Parliament had repealed. A declaration under section 4 was unnecessary.
6. The court continued the Reporting Restriction Order. The parties’ private interests under Article 8 outweighed the public and media interests in identification, although publication of the case and its outcome remained permitted provided identification was avoided.

First-instance decision. The judgment records the earlier related decision, P v P [2019] EWHC 3105, in which the marriage was held void.