S.B. v F.L. (Nullity)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] IEHC 623 |
| Date | 17 July 2009 |
| Court | High Court |
| Docket Number | [2005 No. 57 M] |
BETWEEN
AND
[2009] IEHC 623
THE HIGH COURT
Family law - Nullity - Divorce - Separation - Sex change - Transvestite tendencies - Lack of consent - Marriage void or voidable
Facts: The applicant and respondent were married to each other in 1978. The applicant had undergone a sex change and was a man at the time of marriage. A judicial separation had been sought in 1993, after which time the applicant had a sex change. The respondent defended the claim of the applicant for divorce by claiming nullity on the grounds of the applicant's cross dressing. The question arose as to whether transsexualism was latent only at the date of marriage and whether the respondent wife was aware of any transvestite tendencies of the applicant at or prior to the marriage ceremony. The question arose as to whether there was consent to marry and any approbation.
Held by Abbott J. that there was a lack of consent on the part of the respondent petitioner, not only on the basis of the lighter end of the spectrum, transvesticism, which came to her knowledge during the marriage, but also in relation to the heavier end of the spectrum- gynephilic transvesticism, which was present throughout but concealed before and after the marriage. The lack of consent rendered the marriage void rather than voidable and the void marriage could not have been nor was it approbated.
Reporter: E.F.
RSC O. 70 r32
N (ORSE K) v K 1985 IR 733 1986 ILRM 75
F v F 1990 1 IR 348 1988/8/2182
O'M (M) (ORSE O'C) v O'C (B) 1996 1 IR 208 1996/7/2079
F (P) v O'M (G) (ORSE F (G)) 2001 3 IR 1 2000/9/3366
B (D) (ORSE O'R) v O'R 1991 1 IR 289
B (L) v MACC (T) UNREP SUPREME 6.3.2009 2009/4/954 2009 IESC 21
F (U) (ORSE C (U)) v C (J) 1991 2 IR 330 1991 ILRM 65
B (O) v R 1999 4 IR 168 2000 1 ILRM 306 1999/2/230
D v C 1984 ILRM 173 1983/8/2366
G v M 1884-85 10 APP CAS 171
JUDGMENT of Mr. Justice Henry Abbott delivered on the 17th day of July, 2009
1. The applicant and respondent are aged 56 and 53 respectively and were married to each other in this jurisdiction on the 2 nd August, 1978. The applicant was at the time of the marriage a man but has undergone a sex change and, in deference to her present state, shall be referred to as a woman by her chosen female name, S.B.. The respondent was at the date of the marriage and remains a woman. There were no children of the marriage. This judgment deals with a claim by the respondent (wife) for nullity of the marriage.
2. The applicant and the respondent were granted a decree of judicial separation pursuant to the Judicial Separation and Family Law Reform Act 1989, by order of the Circuit Court made on the 4 th May, 1993.
3. By special summons dated the 12 th July, 2005, the applicant initiated proceedings against the respondent claiming a decree of divorce under the Act of 1996, and that provision be made for her thereunder. After the judicial separation in 1993, the applicant had a sex change from man to woman using surgical, pharmaceutical, and psychotherapeutic means. The respondent, in her replying affidavit, defended the claim of the applicant for a divorce by claiming nullity in respect of the marriage on the grounds of various aspects of the applicant's cross dressing, and inability to enter into a marriage as ultimately evidenced and practiced by her sex change. The applicant did not deny cross dressing and had, in fact, in her grounding affidavit of the special summons in para. 4, averred as follows:-
"I say that your deponent was born by gender a female, but with the external physical characteristics of a male and that in or about the month of September, 1994 your deponent underwent an operation, or a series of operations, as a result of which your deponent now has the physical external characteristics of a woman and am now known as S.B. and I have changed my name by deed poll on the 19 th September, 1994."
4. Affidavits were exchanged which highlighted a number of conflicts between the applicant and the respondent, which pointed to the necessity to have a preliminary issue tried as to whether the purported marriage between the applicant and the respondent is null and void and of no legal effect. By order of this Court dated the 6 th July, 2007, the court directed (by consent) that a preliminary issue be tried as to whether the purported marriage between the applicant and the respondent is null and void and of no legal effect, and that for the purposes of the said preliminary issue the respondent is to be treated as petitioner and the applicant is to be treated as respondent. It was further ordered, by consent, that the issues to be tried were:-
a A. Whether at the date of the purported marriage the petitioner/respondent lacked the capacity to enter into and/or sustain a normal lifelong marriage with the respondent/applicant by reason of the petitioner/respondent's state of mind, mental condition, personality disorder, her emotional and/or psychological immaturity.
b B. Whether at the time of the purported marriage the respondent/applicant lacked the capacity to enter into and/or sustain a normal lifelong marriage with the petitioner/respondent by reason of the respondent/applicant's state of mind, mental condition, personality disorder, her emotional and/or psychological immaturity.
c C. Whether at the date of the purported marriage the parties lacked the capacity to enter into and/or sustain a normal lifelong marriage each with the other by reason of the respective states of mind, mental conditions, personality disorder and/or emotional and/or psychological immaturity.
d D. Whether the petitioner/respondent gave a full free and informed consent to a purported marriage to the respondent/applicant.
e E. If the marriage between the petitioner/respondent and the respondent/applicant is void or voidable, whether the petitioner/respondent had approbated such a marriage by her conduct during the marriage and/or arising from the judicial separation proceedings already had between the parties or in the conduct of these proceedings and the related divorce proceedings.
f F. That if the petitioner/respondent has delayed unreasonably in seeking an annulment.
g G. Such further or other issues as this Honourable Court may deem appropriate.
5. By order of this Court dated the 11 th July, 2008, made pursuant to O. 70, r. 32 of the Rules of the Superior Courts, Professor James Barrett of Gender Identity Clinic in London was appointed as medical inspector of the parties. Dr. James Barrett furnished a written report dated the 23 rd September, 2008. The circumstances in which Dr. Barrett was appointed arose from the fact that prior thereto a report of Professor Richard Green, dated the 2 nd November, 2007, and an addendum to that report dated the 13 th February, 2008, did not fully deal with the issues. The reason for the second report, ordered by the court, arose from the fact that Professor Green's report did not address the issues of capacity to marry, while it was helpful in a clinical diagnosis of the applicant.
6. The case came on for hearing on the 23 rd February, 2009, and evidence was heard on the 23 rd February, 2009, and the 24 th February, 2009. Prior to the hearing, it was indicated by counsel for the applicant and the respondent that the parties had reached agreement in relation to the financial settlement which would be for the benefit of the parties, regardless of the decision of the court in relation to nullity or divorce, and that in the event of nullity being refused and a decree of divorce being ordered, that the parties would suggest to the court that the financial arrangements should be accepted by the court as proper provision for the parties in all the circumstances. While the applicant/respondent attended the hearing with her solicitor and counsel, she took no further part in the hearing and thus, the hearing proceeded as an undefended petition for nullity. The court considers that it was necessary to take special care in assessing the evidence in these circumstances.
7. While Dr. Barrett's report indicates that the applicant's account to him was that the respondent knew about the applicant's cross dressing tendencies before the marriage, the evidence of the respondent does not bear this out insofar as she described her state of knowledge when she met the applicant when she was eighteen as being very ill informed about cross dressers, and that the only possible manifestation of tendency to cross dress of the applicant (which did not occur to much at the time) was through dressing up for a fancy dress party prior to the marriage. I accept that the first real inkling that the respondent got of the applicant's cross dressing tendency was when she found a new gown with make up on it for which she knew she was not personally responsible, some six month or so after the marriage. Dr. Barrett in his report had great difficulty in resolving the conflict of accounts between the respondent and the applicant in relation to this aspect and the developing knowledge of the respondent of it, insofar as the applicant in her interview with him informed that the respondent was well aware of the applicant's cross dressing tendencies prior to the marriage. This difficulty in resolving the conflicting histories given by the applicant and the respondent to Dr. Barrett was resolved in the hearing by reason of the fact that, whereas the applicant consistently stated to Dr. Barrett and...
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AR v DR
...arises as to whether the granting of a judicial separation in of itself is a bar to the granting of a nullity. 42 In S.B. v. F.L. [2011] 1 IR 521 the applicant husband married the respondent wife in 1978 and shortly afterwards the wife discovered that the husband was transvestite. The part......