This question neatly encapsulates the radically different positions of married and unmarried couples as regards their financial and property positions on relationship breakdown. Furthermore, the topics are nullity of marriage, ancillary financial relief in the divorce court, welfare of the child, domestic violence and declaratory property rights respectively. Particularly, the overlap is between nullity and divorce.
As regards Q: A, Julia (J) can be advised prior to incur any legal remedies the court would determine first whether the marriage is valid in law as it was noted in the facts that ‘she was born male and has undergone a sex-change operation’. If so, Julia and Marvin (M) do not have the capacity to marry one another based on English statutory obligations because they are not ‘respectively male and female’: s 11 (c), Matrimonial Causes Act 19731. This clearly excludes her marrying capacity as a female and regards as void or non-existent. Therefore, they live together as a cohabit couples and to make such private arrangements as the law may permit.
The leading case in English law is Corbett v. Corbett2. which held that a person’s sex is fixed at birth and cannot subsequently be changed for the purposes of marriage. This decision has been reaffirmed in Re P and G (Transsexuals)3; J v. S-T (formerly J) (Transsexual: Ancillary Relief)3. The recent decisions, however, increasingly declined to follow Corbett’s case and the considerable number of overseas authorities supporting the contention that a change of sexual identity resulting from successful reassignment surgery should be deemed a change of sex for legal purposes: B v. France 4. The European Court furthermore was critical of the failure of the United Kingdom to resolve the issue, while recognising the wide margin of appreciation of member states5, in Rees v. United Kingdom5.
In 2002 there was a significant development in this area as two transsexual cases, Goodwin v. UK6, I v. UK7, where the court took the view that the sands of time had run out and the UK’s margin of appreciation no longer extended to declining to give legal recognition to all cases of gender reassignment. The European Court of Human Rights also held unanimously that there had been violation of the rights to respect for private and family life and the right to marry and found a family as guaranteed respectively by articles 8 and 12 of the European Convention on Human Rights. Finally, domestic recognition of that view was found very recently in Bellinger v. Bellinger8. where the House of Lords recognised that section 11 (c) of the 1973 MCA was incompatible with articles 8 and 12 of the European Convention on Human Rights. Although the declaration of incompatibility was made, the issues were altogether ill suited for determination by courts and court procedures. They were pre-eminently a matter for Parliament.
J would next make an application against M and Antonio (A) for a non-molestation order under s 42 Family Law Act (FLA) 1996, as she wants ‘an end to all the aggression and intimidation’. She can make such an application provided she is ‘associated’ with M and A. She is ‘associated’ with M since they have been cohabitants and have lived together in the same household. She is ‘associated’ with A since they have lived together in the same household: ss 62 and 639. A non-molestation order means an order prohibiting M and A from molesting J and the ‘relevant child’, Tara (T). Although molestation is not defined in the Act, it has been described as ‘pestering’ in Vaughan v. Vaughan10; and in Horner v. Horner 11included ‘any conduct which could be regarded as such a degree of harassment as to call for the intervention of the court’: C v. C (non –molestation order: Jurisdiction)12. In deciding whether to grant J’s application for a non-molestation order, and if so in what manner, the court must have regard to all the circumstances including the need to secure her health, safety and well-being of both J and T: s 42 (5). T, though not the natural daughter of J, is ‘ relevant child’ because she is living with J and M: ss 62(2) and 63 (1)13.
Considering, A ‘s unpredictable behaviour, his taunts about not having J’s own children, his continuing assault physically and sexually on J sometimes in sight of T and his threats to lock T up which upset T, are likely to amount to molestation of both J and T. As a result, the court is likely to grant an order prohibiting him from molesting both J and T in order to secure their health, safety and well-being. It is likely that the court will limit the term of any non-molestation order. In the past a period of three months was the starting point: Practice Direction (injunction: Domestic Violence)14.
Furthermore, a non-molestation order application by J against M would be doomed to failure as there appears to be no evidence of anything which could be described as molestation by M directed against J: (C v. C). The court still can go ahead and make the non-molestation orders against M of its own motion15.
J could also apply for an occupation order giving her the right to occupy and requiring M and A to leave the dwelling house which has been their home though occupation order rights only might bind M, but not A. A would only be bound if J has a beneficial interest under property law and is in actual occupation whereby an ‘overriding interest’ is created under ss 3 and 70 Law of Property Act 1925: Williams and Glyn’s Bank v. Boland16.
Therefore, her occupation order application would be as one cohabitant with no existing right to occupy against M: s 3617. In addition to circumstances comparable to those contained in s. 33(6), the court must consider the nature of the parties relationship; the length of time they lived together as cohabitants; any children of both parties or for whom both parties have or have had parental responsibility; the time elapsed since they lived together; and any pending proceedings relating to ownership of the house: s 36 (6)18. Also, the court must have regard to the fact that the couple have not given each other the commitment involved in marriage: s 41(2). The court has discretion (not a duty as it does with entitled persons, spouses and former spouses) to make an occupation order, if the balance of harm test tips in a cohabitant applicant’s favour: s 36(7). For J, (a non-entitled cohabitant) the order must not exceed six months, but may be extended on one occasion for a further specified period not exceeding six months: s 36 (10).
In the present case, J would seem to have nowhere else to go without remaining in the house, which is not a realistic option as her claims that she would suffer significant harm if M were allowed to remain in the house. Similarly, M would suffer the inconvenience of having to rehouse himself if an order is made because they have currently rented out their jointly owned house. There is also no evidence that M has behaved aggressively towards J and T, and although they have had several arguments concerning A, his conduct has otherwise been good. However, harm is defined in s 63(1) as ill treatment or impairment of health. It seems that the court may be reluctant in this case to exclude M without precise evidence because in B v. B19 where, despite the respondent’s violence, there could be greater harm to the husband and his child if an order were made, than that suffered by the wife and the couple’s child if an order were not made.
It would also be difficult to conclude on the facts given that, without an order, J would suffer significant harm due to M’s conduct. As in Wiseman v. Simpson20 it appears that J has ‘simply ceased to live with M’. However, in Scott v. Scott21 the Court of Appeal upheld an order prohibiting the husband from exercising his right to occupy the matrimonial home where there was no violence, because he would not accept the marriage was over, had repeatedly tried to persuade his wife to be reconciled and had also broken an earlier undertaking.
The court would therefore be considered appropriate in the circumstances for M to give an undertaking not to molest J s 46 (1). This would be permissible here because the presumption of a power of arrest would not apply, as M has neither used nor threatened violence against J: s 47 (2). A breach of this undertaking would be contempt of court: s 46 (4).
With regard to T, who is a ‘relevant child’ within s 62(2) and M’s natural daughter, there is nothing to suggest that M has been violent towards her since she has been with them. If she therefore lives with M, this would increase his claim to remain in the home. The presence of T with J on the other hand would strengthen J’s claim to be able to exclude M. Furthermore, there is an evidence in the facts that T was threatened by A, which suggests that she suffers significant harm due to lack of reasonable parental care. In effect, the local authority can apply for an emergency protection for T, though they need to satisfy the court several requirements, under s 44 Children Act 1989.
J would also be advised that she could apply for both non-molestation and / or an occupation order exparte (even without informing the other side): s 4522. The court will only allow this if it considers it just and convenient having looked at all the circumstances and in particular certain matters: s 45 (2). Furthermore, if the court makes a non-molestation order or an occupation order and it appears to the court that either A or M has used or threatened violence against J or T, it would attach a power of arrest to one or more provisions of the order, unless it is satisfied that in all the circumstances of the case J or T will be adequately protected without such a power of arrest: s 47 (2).
Ultimately, J would be treated, in the eyes of law as cohabitant, economically a weaker party to a broken relationship. With no marriage, there can be no divorce, and no financial relief in both short and long term relationship. However, there is no clear indication whether J holds legal title for any of the property. If so, she could claim the property under the ordinary principles of ownership irrespective of short or long-term relationship. Otherwise, the only possible avenue here is to the country house and the other assets, by way of, implied, resulting or constructive trusts and proprietary estoppel. To establish a right, J must show either that the parties expressly agreed that they were both beneficially entitled or that an inference that the intention of both parties can be drawn from their conduct. In either case, J must show that she acted to her detriment in reliance on the agreement or the common intent: Lloyds Bank v. Rosset, Midland Bank v. Dobson. The agreement on ‘a joint effort’ should be enough: Eves, Grant v. Edwards. However, the facts suggest that her contribution has enormously led to the company’s success. Following, Midland Bank v. Cooke the court can look at the history of the relationship to decide quantum. Using that case, J would get a half share.
Turning to the next Q: B, J would be advised that she could seek to end the marriage by petitioning for divorce as their marriage would be considered as a valid marriage. J then needs to obtain protection from domestic violence, and occupation of the house that has functioned as a matrimonial home as stated in part (a). Although, there is no distinction in relation to protection from molestation between spouses and cohabitants, it can be seen that a spouse can be at an advantage when seeking occupation of the home. J, as a married spouse, with no right to occupy the matrimonial home is able to claim ‘matrimonial home rights’ against M and A under s30 of the FLA 1996. Consequently, she would see whether or not they can be excluded from the house, and this will only be possible by way of a court order under s 33. and the earlier discussion in part (a) on the occupation order under s 36, which is more or less similar to s 33. However, the significant distinctions with s 36 are: first, the period of a s 33 order can be unlimited; second, if the balance of harm is equal or in favour of the applicant then the occupation order must be made under s 33(7). Furthermore, she would also apply for both the non-molestation and occupation order exparte under s 45, and the court could attach a power of arrest under s 47. . Otherwise, all the advice in part (a) above would remain the same.
J would next be advised that if she wishes to petition successfully for divorce, she must satisfy the court that her marriage with M has irretrievably broken down: s 1 (1) MCA 1973. In addition, she must also satisfy the court of one or more of five facts in order to obtain a divorce: s 1(2)23. Both requirements are separate and each must be satisfied.
The possible fact is that M has behaved in such a way that it is not reasonable to expect J to live with him: s 1 (2) (b)24. The court will ask whether any right thinking person would come to the conclusion that M has behaved in such a way that J cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characteristics and personalities of the parties: Livingstone Stallard v. Livingstone Stallard25. This approach combines a subjective and objective approach26. However, the court will not grant a petition if there is insufficient evidence to justify: s 1(2) (b).
M on the other hand may seek to prevent the divorce, by relying on s 5 MCA1973, on the basis that it would cause him substantial financial or other hardship, and wrong in these circumstances to end the marriage. In contrast26, the mere fact that divorce is frowned upon would be insufficiently grave to justify opposing the divorce: Parghi v. Parghi 26
If J and M are granted a divorce, then the court has wide discretion, as it considers just and reasonable, to order ancillary relief in the form of secured or unsecured periodical payments or lump sum orders: s 23 MCA 1973, and property orders under s 24 MCA, which will be determined by reference to the factors in ss 25 and 25 (A) MCA.
The court28 would give first consideration to the welfare of T as she is under the age of 18: s 25 (1)27. Clearly, T will need secure accommodation with either J or M, and it is important to ensure that, whatever financial arrangements are reached, T has a roof over her heads: Harman v. Glencross28. Next, section 25 (2) (a) and (b) are very relevant, i.e. the present and future income and other financial resources of both parties, including any increase in capacity it would be reasonable to expect a party to take steps to acquire, and the present and future needs, obligations and responsibilities of each. Undoubtedly, J would have difficulty in housing herself, although both parties need housing, and provide accommodation for T if she stays with J: Calderbank v. Calderbank29. It seems likely that she will need to remain in the former matrimonial house.
The court would also look at the standard of living enjoyed by the family, the age of the parties and the duration of the marriage: s 25 (2) (c)30 and (d). Any drop in the standard of living should be equally borne if possible: Scott v. Scott30. In terms of contributions made by the parties under s 25 (2) (f), it seems J has contributed being a creative skills and experience in the retail sector and the running of the business :O’Donnell v. O’Donnell31; both have contributed: White v. White32. This should be reflected in the level of financial relief awarded: White v. White. The court will further consider the value of any pension rights which each party will lose as a result of the divorce: s 25 B MCA 1973. J may lose any rights to any pension cover, which may be included in M’s private pension plans.
Following, the court33 would seem, in this circumstances, appropriate, just and reasonable to effect an immediate clean break: s 25(A) (1) 33 being easier to achieve as there is substantial wealth: Duxbury v. Duxbury34. Clearly, this is a big money case, so property adjustment could be equally divided following White v. White. Assets include the country house, in joint names, and total assets amounting to £ 18 million. Therefore, J, as a joint tenant, is entitled to half the value of the house and half of the remaining assets, but a court could well decide to reduce either party share in the light of T’s stay order. This would be consistent35, at least, with the approach in C v. C (Financial Relief)35.
1 The classic definition of marriage by Lord Penzance in Hyde v. Hyde (1866) L. R. 1 P. & D; Lindo v. Belisario (1795) 1 Hag. Con. 216.
2 (1971) P 83
3 (1996) 2 FLR 90
3 (1997) 1 FLR 402
4 (1992) 16 EHRR 1; Van Oosterwijck v. Belgium (1980) 3 EHRR 557; MT v. JT (1976) 355 A 2d 204; M vM (1991) NZFLR 337; M v. M (1991) NZ Sup Ct; Attorney General v. Otahuhu Family Court (1995) 1 NZLR 603; Fitzpatrick v. Sterling Housing Association Ltd (2001) AC 27; S-T (formerly J) v. J (1998) Fam 103; W v. W (Physical Inter-sex) (2001) Fam 111; KB v. Secretary of State for Health (2000) and P v. S (case C –13/94) (1996) ICR 795
5 The court should define “male” and “female” in a conclusive manner, which reflects contemporary society and should grant post-operative transsexuals the right to marry.
5 (1986) 9 EHRR 56; Cossey v. United Kingdom (1990) 13 EHRR 622 and Sheffield and Horsham v. United Kingdom (1998) 27 EHRR 163
6 (2002) 2 FLR 487
7 (2002) 2 FLR 518
8 April 10, 2003
9 FLA 1996
10 (1973) 3 All ER 449
11 (1982) All ER 495
12 (1998) 2 WLR 599
14 (1978) 1 WLR 1123.
15 In Davis v. Johnson (1979) AC 264, at 334, Viscount Dilhorne said, ‘violence is a form of molestation but molestation may take place without the threat or use of violence and still be serious and inimical to mental or physical health’.
16 (1980) 2 All ER 408
17 FLA 1996
18 FLA 1996
19 (1999) 1 FLR 715
20 (1988) 1 All ER 245
21 (1992) 1 FLR 529
22 FLA 1996
23 MCA 1973; Richards v. Richards (1972)
24 MCA 1973
25 (1974) 3 WLR 302. Buffery v. Buffery (1988) 2 FLR 365
26 It could also be argued that a violent brother loving husband cannot reasonably be expected to live with a brother in law hating wife
26 Therefore, the court might consider that justice demands the divorce be granted to give J the freedom to start a new life, as in Parker v. Parker (1972).
26 (1973). All ER p-156
27 This does not mean that the welfare of such a child overrides all other considerations but it will be of first improtance: Suter v. Suter and Jones (1987) 2 All ER 336.
28 (1986) FLR 203
29 (1975) WLR 189
30 Since this is a relatively wealthy family, it should be possible to avoid a drastic reduction in the standard of living: Foley v. Foley (1981)
31 (1975) FLR 111
32 (2000). WLR 203
33 The goal would be to make her self sufficient, although this can be difficult if T’s stay order with J: Suter v. Suter and Jones (1987). (SRJ v. DWJ (Financial Provision (1999) 2 FLR 1761
33 Clutton v. Clutton (1991)
34 (1988) All ER
35 It should be mentioned that in cases like this, the courts may use a computer program (the Duxberry calculation) to help calculate the lump sum needed to produce a certain annual level of spending power: Fv. F (Duxburry Calculation: Rate of Return) (1996) 1 FLR 833.
35 (1997) 2 FLR 26