Rebecca Jones, Solicitor
Gender Recognition Act 2004: Practical Points for Family Lawyers
The Gender Recognition Act 2004 provides for transsexual people to make an application to the Gender Recognition Panel for a gender recognition certificate which provides for legal recognition in their acquired gender. If the applicant is married, an interim gender recognition certificate will be issued by the panel if the application is successful.
This has the effect of making the marriage voidable on an application to the court by either party to the marriage. This is due to the fact that English law does not recognise marriages between individuals of the same sex. The application for annulment must be made within six months of the issue of the interim gender recognition certificate. In order to comply with applications for annulment, s12 of the Matrimonial Causes Act 1973 (MCA) has been amended to include a further ground on which a marriage, celebrated after 1971, can be voidable (MCAs12(g)). The interim gender recognition certificate is used as evidence in support of any application to annul the marriage.
The former president of the Family Division, Dame Elizabeth Butler-Sloss, made a practice direction on 5 April 2005, which gives guidance as to the practical application of the Act. The practice direction applies to the proceedings for divorce, judicial separation and annulment of marriage commenced on or after 4 April 2005.
The petition
The name currently being used by the party should appear first on any petition, answer and statement of arrangements followed by "formerly known as... (married name)".
All the usual provisions apply and the petition is drafted as normal under existing practice directions. Decrees and orders will refer to the full current names of the parties and references to titles such as Ms, Mrs or Mr will be omitted from court documentation.
Directions for trial
Where proceedings for annulment of the marriage have been brought under s12(g) MCA 1973 and those proceedings are defended, all of the usual requirements apply when filing an affidavit in support of the petition. However, it is also necessary to attach the interim gender recognition certificate to the affidavit and for the affidavit to refer to the following:
- The date on which the interim gender recognition certificate was issued.
- The serial number of the interim certificate.
- The name of the person to whom the certificate was issued.
- The date on which annulment proceedings were commenced.
It is also necessary to state whether any applications have been made to amend an error in the interim certificate, or whether there has been an appeal against a decision to amend (or refuse to amend) an error in the interim certificate. Again, any orders must be copied and attached.
Practice Points
- If the client has obtained an interim gender recognition certificate, an application to annul a marriage must be done within six months of obtaining the certificate.
- Upon annulment of the marriage any previous will is revoked. The client should therefore be referred to the appropriate department in order to make a new will.
- Once the marriage has been annulled, the client will receive a full gender recognition certificate. This will not affect parental status and they will still be considered as being the parent of any child that they have.
- A full gender recognition certificate will enable a person to marry in the acquired gender, obtain a birth certificate that recognises the acquired gender and acquire benefit and state pensions just like anyone else of that gender.
For further information contact a member of the Family Law team or call 020 7940 4000.
