Corbett v Corbett [1970] 2 All ER 33
Citation:Corbett v Corbett [1970] 2 All ER 33
Link to case on WorldLII (reference).
Rule of thumb 1: Legally, can you change your sex or gender? At common law, you cannot change your sex from the one you were born with, but you can change gender.
Rule of thumb 2: Can a transgender woman & a man get married? No, the marriage is void.
Rule of thumb 3: What happens a if a man marries a transgender, and only discovers once they are married that the person was actually transgender? The marriage can be declared null & void.
Judgment:
The facts of this case were that George Jamieson, who became transsexual supermodel ‘April Ashley’ and was/is one of the most famous transvestites of all time, was born male. However, Jamieson had always wanted to be a woman. At a fairly young age, Jamieson underwent a sex change and began taking female chemicals, and became ‘April Ashley’. Ashley was very discreet and 99.9% of people were completely unaware that she was a man. Arthur Corbett, a very wealthy aristocratic man, fell in love with ‘Ashley’ and they got married. This was a time when men and women generally never had sex until after they were married. Not long after they were married Corbett discovered that ‘Ashley’ was born a man and he no longer wanted the marriage to continue. Corbett was very wealthy and Ashley wanted a large settlement in order for this divorce to go ahead. Corbett did not want to pay any large settlements in order for the divorce to go through. Corbett sought to have the marriage annulled on the basis that marriage was between a man and a woman, and that Ashley was legally a man, meaning that this marriage was null and void. Corbett sought a declaration from the Court that the marriage was null and void. The Court upheld these arguments and held that this was not a valid marriage because ‘Ashley’s’ ‘sex’ was for the purposes of law a ‘man’. It was held that there cannot legally be a marriage between a ‘man’ and a ‘man’, meaning the marriage contract was void. The Court has held that people in society can change how they appear and indeed what their ‘gender’ is, which can have its own benefits, but they cannot change technically and legally their ‘sex’. ‘Ashley’ was not entitled to any divorce settlement.
Ratio-decidendi:
‘Marriage... is and always has been recognised as the union of man and woman... It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent’s operation, therefore, cannot affect her true sex. The only cases where the term ‘change of sex’ is appropriate are those in which a mistake as to sex is made at birth and subsequently revealed by further medical investigation... a matrimonial relationship between the petitioner and the respondent was a legal impossibility at all times and in all circumstances... these submissions, in effect, confuse sex with gender’ Omrod J at 83
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.