Dr Fergus Ryan is a lecturer in law at the Dublin Institute of Technology.
When I first encountered Family Law as a discipline, the burning issue of the day was divorce.? Prior to 1995, divorce was constitutionally prohibited. ?A prominent theme in the family law classes of the time was whether estranged married couples should be allowed to divorce and remarry. ?It never crossed my mind that married couples might at some future point be required to divorce, against their collective wish to remain married.
When divorce was finally introduced it was nonetheless firmly considered a last resort, to be employed only when all else failed.? This is evidenced by the lengthy living apart requirement ? four out of the previous five years ? and the stipulation that a divorce will only be granted if there is no reasonable prospect of reconciliation. Divorce legislation requires, moreover, that, prior to commencing litigation, parties be advised of alternatives to divorce.
The Gender Recognition Advisory Group (GRAG), in its report to the Minister for Social Protection on gender recognition legislation, recommended that transgender applicants who meet certain conditions should be allowed to access a gender recognition certificate. This would allow the recipient to change their legally assigned gender for all legal purposes.
The Group, however, recommended that applicants should not, at the time of the application for a gender recognition certificate, be married or in a civil partnership. The Group?s stated concern was that a gender recognition certificate would convert an existing opposite-sex marriage into a same-sex marriage and a same-sex civil partnership into an opposite-sex one, neither of which is legally permitted. ?As the law currently stands, marriage is confined to opposite-sex couples, and civil partnership to same-sex couples.
The implication is that trans people who are currently married or in a civil partnership will need to obtain a divorce, civil partnership dissolution or annulment as a precondition to legal gender recognition.? Admittedly, many marriages do not survive a gender transition, but some do.? This places such intact couples in an unenviable dilemma.? If the GRAG proposal is accepted, in order for the trans party legally to be recognised as being of their acquired gender, a robustly functioning marriage or civil partnership must be legally sundered.? A couple who wish to remain together, in other words, will be forced to divorce in order for one of the parties legally to be recognised in their acquired gender.
Given that the relationship has already survived the process of transition, it seems cruel to require that couples be faced with such a dilemma.? It is all the more invidious given that it is not, in my view, legally necessary to require the applicant to take such a step.
The validity of a marriage is determined by reference to factors in place on the date of the marriage. For instance, if the parties are underage at the time of marriage (and no court exemption has been obtained) the marriage is void.? The fact that the parties have since exceeded the minimum age does not make the marriage retrospectively valid.? Likewise, a marriage that is bigamous at the time of its celebration does not become valid because the bigamist subsequently divorces his first spouse.
Similarly, the question here is what was the legal sex of each party at the time of the marriage.? It is very unlikely that legal gender recognition will be made retrospective. A person who is granted a gender recognition certificate will most likely be regarded as having legally acquired that gender as of the date of the certificate. ??So in law, the couple remain in what is legally a heterosexual marriage as they were respectively male and female on the date of their marriage.
For civil partnership, the point is even clearer. ?S.107(e) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 states that a civil partnership will be void ?if at the time the civil partners registered in a civil partnership? the parties were not of the same sex.?? The crucial time is the date of registration.
The Group?s approach is essentially predicated on the view that, in substance, gender recognition converts an existing opposite-sex marriage into a same-sex marriage and a same-sex civil partnership into an opposite-sex union. ?The Group claims that there would be constitutional difficulties should either be permitted.? ?The GRAG intimates that there is at least some doubt as to whether same-sex marriage is constitutionally permitted.? It also makes the valid point that permitting an opposite-sex civil partnership might infringe the constitutional preference for marriage (as the couple, who could now choose to marry, would be able to dissolve their civil partnership more easily than a marriage, thus incentivising civil partnership over marriage.)
Yet, as Eoin Daly and Conor O?Mahony have convincingly argued, the Constitution, while it does not require same-sex marriage, arguably would not preclude legislation that would allow same-sex marriage.? The better view is that the courts would defer to the Oireachtas if the latter were to introduce same?sex marriage.
Even if there is a constitutional barrier to same-sex marriage, it is clear that what is envisaged here is not technically same-sex marriage: when the marriage was celebrated, the parties were of opposite sex and in law this is what counts.? In substance, the same point can be made for civil partnership.
It might be added that as the law currently stands, what is in substance a same-sex marriage is already permitted. ?A person, born biologically male, now living as a female, may currently marry a person born a biological female and living as such. Provided both parties have full information as to all relevant facts, the marriage is a valid one, as one of the parties is legally male and one legally female, though both parties identify as female. What is this, in substance, other than a lesbian marriage?
It may in fact prove impossible for spouses to obtain a divorce where both wish to remain married. ?If they are still living together as a couple, they will not meet the constitutional requirements for divorce. Even if they secure separate accommodation, they will not be treated as ?living apart? if they have not mentally resolved to end their marital relationship.? To ?live apart? for this purpose, physical separation on its own is not enough. ??Thus, if both parties still wish to remain married, they cannot divorce. This would mean that the trans party would not be able to obtain a gender recognition certificate.
This is reinforced by the requirement that a judge cannot grant a divorce unless there is no reasonable prospect of reconciliation. (This prerequisite does not apply to civil partnership dissolution). ?If both parties wish to remain married, but are being forced to divorce, technically the divorce cannot be granted.
Even if the parties are permitted to divorce, the process is likely to delay access to a gender recognition certificate, given the long living apart requirement. The expense involved should also be borne in mind.
The traditional and much-abused alternative approach to broken marriages ? the annulment ? presents its own problems, not least that a nullity decree denies both parties access to the remedies available on divorce and dissolution.? Such a decree also lends an air of unreality ? it says there never was a marriage, when plainly there was.
Admittedly, relatively few marriages survive gender transition.? Nonetheless, some marriages remain intact. Forcing the parties to divorce as a precondition to legal gender recognition ? which is vital to the dignity of many trans people ? is not only cruel and inhumane; it is, arguably, also inimical to the special position of marriage secured by the Constitution. A marriage that survives an event as significant as the gender transition of one of the spouses is a testament to the parties? commitment, whatever obstacles life presents. ?Given that so much effort has been made to discourage divorce, it is remarkable to propose requiring the sundering of a marriage that has survived ? despite the odds ? as a precondition to gender recognition.? If GRAG?s proposals are accepted in full, applicants for gender recognition will be forced to present as atomised entities, shorn of prior civil status, rather than as citizens who may wish to sustain a valuable and enriching existing marriage or civil partnership.? Given the very small numbers that will no doubt be involved, this approach seems disproportionate to say the least.
Source: http://www.humanrights.ie/index.php/2012/10/19/ryan-on-gender-recognition-and-marriage/
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