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Marriage annulment – mistaken identity!

By December 5, 2018October 28th, 2021No Comments

Marriage annulment; often threatened, often discussed, usually misunderstood.  A marriage can be annulled under some circumstances, meaning the marriage is completely cancelled as if it never happened. The circumstances for granting a marriage annulment are very limited, but include a provision where a marriage can be voided if the consent of one of the parties was not a real consent because they were mistaken as to the identity of their spouse.

And a recent case in the Family Court looked at whether a wife could argue she had been mistaken about the identity of her husband, because at the time of marriage, he was a man, whereas he later transitioned to becoming a woman. The wife argued that she had been mistaken about her husband’s gender identity and that therefore the marriage should be voided.

However, the relevant law normally only covers cases where a mistake is made as to someone’s physical identity (that is, they were believed to be person X but are actually person Y). The grounds on which a marriage can be declared void are contained in the Marriage Act while the power to declare the nullity of a marriage is contained in the Family Law Act.  Other reasons why a marriage can be annulled include where consent to the marriage was obtained by duress or fraud, or a party was mistaken as to the nature of the ceremony performed or the party was mentally incapable of understanding the nature and effect of a marriage ceremony.

In the case of Tien-Lao & Tien-Lao (court-appointed pseudonyms) heard in the Family Court in Newcastle, both the applicant wife and respondent husband supported the marriage annulment application. Their marriage had taken place in 1998, had produced two children and been a happy union–in fact, despite wishing to be granted an annulment of their marriage as man and woman, they had planned to then re-marry as a same-sex couple.

When they got married, the respondent husband had the outward appearance of a man. After the respondent underwent gender reassignment surgery many years later (with the applicant wife’s support), she had the outward appearance of a woman. This was when the respondent husband also began to present herself as a female in public. However, the respondent husband contends she always truly felt she was female. Therefore, she argues she actually was a woman and not a man when she married the applicant wife in 1998.

The wife argues she accepted the marriage proposal of “the male persona” and married him, believing she was marrying a man. She then later learnt that her husband had identified as a female since the age of six, and had been living an “utterly incongruent” life as a male, partly in order to fulfil a perception of needing to be a strong male role model for their kids.

The case turned on whether the relevant law regarding marriage annulment is broad enough to capture a spouse’s mistake as to the gender identity of their spouse rather than only mistakes about the physical identity of the person they married. As the judge noted:

The spouses are undoubtedly now two females, but the question of the validity or nullity of their marriage depends upon the reality of the respondent’s gender when they entered into the marriage in 1998.

In other words, was the respondent husband a man at the time the marriage was solemnised?

The judge found that the marriage was still valid, and expressed regret at having to dismiss the application. In the reasons for judgment, it was explained that the marriage was still considered valid because its validity had to be determined at the time it was solemnised, at which point in time the spouses were respectively a “man” and a “woman”.

The respondent husband was legally characterised as a male at the time of marriage: “He looked male, he publicly represented himself as male, and he had fully-functioning male genitalia. The respondent’s subjective belief in her female gender could, at most, be a counter-balancing consideration, but it does not trump the other physiological and social factors which weigh more heavily.”

You can read the case here.

It could not be said the applicant was mistaken about the respondent’s “identity” when they married. She intended to marry the respondent and actually did so. She regarded him to then be a man, which is how he represented himself publicly. Although the respondent much later acceded to the latent inclination to be a woman and the transitional change of her gender then followed, the change did not expunge history.  The fact the respondent always subjectively felt like a woman does not retrospectively mean she was not a man when the marriage with the applicant was solemnised. At that time, the applicant gave real consent to her marriage to the respondent, whose identity was not mistaken.

You might like to read our blog on marriage annulment here.

If you need family law advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400. We offer a free first conference.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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