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 Continue reading “Ryan on Gender Recognition and Marriage”