Legal question- Telegraph

[hholiday]

I never used to read the Daily Telegraph, but I have found it one of the more accurate publications on trans issues. So I was disappointed with this lawyer’s response to a woman whose husband has transitioned. https://www.telegraph.co.uk/money/consumer-affairs/trans-husband-no-longer-exists-as-man-can-i-annul-marriage/ The correspondent is saying the man she married no longer exists so is asking if she can annul the marriage. And this is exactly what activists do argue - that the transitioned person was ‘always’ female, but ‘assigned’ male at birth.

Yet any legal arrangements they entered into ‘as a man’ still continue. Gary (the lawyer) says:

This brings me to annulment. Annulment is an oft-misunderstood remedy. It is not a somehow softer or more symbolic form of divorce. It is a declaration that the marriage was either void or voidable from the outset. In other words, that something was legally wrong at the time the vows were exchanged and the marriage occurred.
Typical grounds include bigamy, lack of consent or a failure to comply with the formalities of creating a valid marriage. A gender transition years later does not come remotely close to meeting those criteria. The courts will not treat a marriage as having been defective simply because one party later transitions. Annulment, therefore, is not available in your situation.

So the law is outdated, in that case. But this lawyer seems pretty obtuse when it comes to this painful anomaly- even quoting James Morris as an example of a happy relationship (which I believe his family have now contradicted). He does say no-fault divorce is no less stressful than annulment - but I guess that is on the assumption your trans spouse agrees to go down this route and doesn’t contest financial or child access arrangements. Basically it feels as though the husband holds all the cards - and this lawyer can’t see that at all. He’d have been better off signposting Clare to one of the trans widows threads on mumsnet. Archive link here https://archive.ph/iT6Nx

My understanding is that it her husband has a GRC then she can invoke the spousal exit clause and annul the marriage. If he hasn't then she'll have to divorce him.

So the lawyer is half right.

It's an interesting point though. Presumably the reason for that clause in the GRC is because there is a recognition of the wife's argument in this case. And that is still the claim of GI whether there is a GRC or not.

That being said - I agree the husband is not in fact a different person, he is the same person who is behaving in a way no longer compatible with being married. We don't, afaik, give annulments for mental illness, you have to divorce.

But the internal logic of GI seems to support the wife's argument.

Without her consent, he can only get an interim GRC, which gives her the option of divorce or annulment, thereby avoiding being trapped in a single-sex marriage: this is important for some religious people.

Nobody likes this. Transitioners complain about wives withholding consent but then stalling the divorce. Wives have no leverage if the husband doesn't care about getting a GRC, so they only have the option of divorce, which may not be religiously acceptable.

It’s a poor legal opinion and I hope someone better qualified will call him out on it. It’s simply bad advice.

A good explanation from Legal Feminist here:

https://www.legalfeminist.org.uk/2024/06/10/womens-consent-matters/

1. "A divorce is not the same in law as an annulment and it can have consequences in other areas which can lead to prejudicial effects for the woman. One obvious area is for religious women. A divorce may prevent them from partaking fully in religious life and practices. An annulment through the religious courts can take a long time. Why should a woman be denied the benefits of something which matters to her when there is an alternative – annulment, provided for by the Act, triggered by the steps taken by her husband and which, crucially, does not deny him the GRC he is seeking? Denial of this to religious women may also potentially constitute discrimination on the grounds of religion."

Similar discussion here. But different legal system as Ireland(?)

https://www.mumsnet.com/talk/womens_rights/5455312-judge-declares-marriage-void-as-husband-unaware-of-partners-transgender-wishes

How are finances split when an annulment is granted?

Finances and child arrangements have to be agreed first. Because these marriage breakdowns often include allegations of financial and other abuse, Cafcass may be involved for child safeguarding and this all causes delays before the courts will give the order.
e ither party can use rhe Interim Grc to end the marriage.@TinselAngel can explain more if shes around!

This is just plain weird. As someone in the comments daily’s - If this husband claims to have been born in the wrong body then surely it’s breach of (marriage) contract if he didn’t reveal this material fact at the time?

Agreed - and that was what the case in Ireland was based on.

Once a Grc has been issued the official marriage records are falsified to lie eg that the husband was a woman when he married and his heterosexual wife has therefore always been a lesbian. If the marriage was in chuch, that is falsified too I believe .

This denial of reality and being divorced can have a massive n egative impact on religious believers eg if they are banned from remarriage , church l eadership or communion in some christian churches. Its also a breach of human rights and consent for reality believers.

hence the Spousal Exit Clause / option to get an annulment before a full Grc is issued is essential to protect the equal rights and consent in marriage of both partners, to protect non transitioning spouses from forced marriage/ sexual orientation conversion, and to uphold human rights eg religious freedom, freedom to believe in reality, not to be forcibly married/recorded as gay/ straight when you do not consent by your gov etc.

its why trans groups keep objecting to the spousal exit clause- as it recognises other people (usually women) have human rights too!

Oo my post is regarding Grcs in England...

Is OP talking about a man who at 50 starts to "identify as" a woman? Or a man who at 50 gets a GRC? Either way, I don't think that man becomes a woman legally at any stage (and he certainly doesn't become one biologically). The man may think he has recently become a woman, or he may think he has always been a woman and that wasn't recognised when he was born. Or he may not think either and may just be in it for some kind of personal advantage without being a true believer. Whichever - he was legally and biologically a man when he married his wife. So I don't see why the marriage should be annulled. Unless it is annulled under legislation which specifically covers these circumstances. Do people really think that a woman who has been married for 30 years and has two children should be granted an annulment on the basis that when she married her husband he, unknown to both of them, was actually in reality a woman?

A paragraph has been added to the article after I emailed them and pointed them to the law on annulment and GRC’s.

@bkclb yes legislation for these specific circumstances . The gov passed the Gender Recognition Act knowing it is based on counter factual fantasies, not reality,
so the annulment option pro tects others eg vicars, other religious believers, reality believers, (and heterosexual wives who dont believe the man who got them pregnant with his penis is a woman.)

Well done.

But on one level you shouldn't have had to do that.

I had in the past thought the Telegraph was more likely to fact check before publishing.

I asked archive.is to update it saved copy so it means this clarification does now appear in that, as well as the original online Telegraph one.

https://archive.is/4vszU

Years of newsroom cuts have severely damaged the Telegraph's sub-editing capacities. The latest proposed sale (to Lord Rothermere) is vastly unlikely to improve matters.