LINVILLE & LINVILLE

[2018] FamCA 953

FAMILY COURT OF AUSTRALIA

LINVILLE & LINVILLE [2018] FamCA 953

FAMILY LAW – NULLITY – Where the applicant seeks a declaration of nullity of marriage – Where the respondent is a male to female transsexual person who underwent gender affirmation surgery years after marriage – Whether the respondent was a man at the time the marriage was solemnised – Where the applicant contends she was mistaken as to the respondent’s gender identity, but not the respondent’s physical identity, at the time of their marriage and so the marriage is void – Where the respondent supports the application – Whether s 23B(1)(d)(ii) of the Marriage Act 1961 (Cth) can be construed broadly enough to capture spouses’ mistakes about the gender identity of the person they marry – Where the Court determines the marriage remains valid – Application dismissed – No order as to costs.

Births, Deaths and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) ss 23, 23B(1)

AB v State of Western Australia (2011) 244 CLR 390
Bellinger v Bellinger [2002] 1 All ER 311
Corbett v Corbett (Otherwise Ashley) [1970] 2 All ER 33
In Re Kevin (Validity of Marriage of Transsexual) (2001) FLC 93-087
In Re Kevin (Validity of Marriage of Transsexual) (No 2) (2003) FLC 93-127
In theMarriage of C and D (falsely called C) (1979) 28 ALR 524
Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697
Osman & Mourrali (1990) FLC 92-111
The Crown v Harris & McGuiness (1988) 17 NSWLR 158
Secretary, Department of Social Security v SRA (1993) 118 ALR 467
Zacharia & Paradiso [2008] FamCA 688

APPLICANT: Ms Linville

RESPONDENT: Ms Linville

FILE NUMBER: NCC 2336 of 2017

DATE DELIVERED: 21 November 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 15 June 2018; 7 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: B Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICiTOR FOR THE RESPONDENT: Not Applicable

Orders

1. The Initiating Application filed on 4 April 2018 is dismissed.

2. No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Linville & Linville has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Family Court of Australia at NEWCASTLE

FILE NUMBER: NCC 2336 of 2017

Ms Linville

Applicant

And

Ms Linville

Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Initiating Application filed on 4 April 2018, the applicant seeks a declaration that the marriage she solemnised with the respondent in 1998 in New South Wales, Australia is null and void.

2. The respondent supports the application.

3. The applicant was and remains a woman, but the resolution of this case involves consideration of whether the respondent was once a man.

4. At the time of marriage, the respondent outwardly appeared to be a man but, years later, she submitted to surgery. Since the surgery, the respondent has outwardly appeared as a woman. Although she only began to publicly represent herself as female from around the time of her surgery, she always truly regarded herself to be female and so she contends, relevantly for present purposes, she really was a woman and not a man when she married the applicant in 1998.

5. The applicant consequently maintains she was mistaken as to the respondent’s true identity when they married, in which event their marriage is a nullity. Can that be right?

The evidence

1. The applicant relied upon her affidavit filed on 4 April 2018.

2. The applicant also tendered, with the respondent’s consent, an academic article on “human psychosexual differentiation” written by Louis Gooren,[1] whose expertise was accepted as authoritative by Chisolm J in In Re Kevin (Validity of Marriage of Transsexual) (2001) FLC 93-087 (“Kevin”) at [211], which acceptance and reliance by his Honour was the subject of approbation on appeal (In Re Kevin (Validity of Marriage of Transsexual) (No 2) (2003) FLC 93-127  (“Kevin (No 2)”) at [22]).

   [1] Exhibit A1

3. The respondent relied upon her affidavit filed on 6 June 2018, together with some documentary exhibits[2] which were referred to in her written submissions.

   [2] Exhibit R2

4. The applicant[3] and respondent[4] both tendered written submissions, which they supplemented orally.

   [3] Exhibit A2

   [4] Exhibit R1

5. The hearing was commenced on 15 June 2018 and was adjourned part-heard until 7 November 2018 for completion. The parties were permitted to file further affidavit material in the interim if they wished,[5] but neither did so.

   [5] Order 2 made on 21/6/18

6. Since the parties both sought an identical outcome, there was no contradictor and neither party sought to cross-examine the other.

Relevant history

1. The parties have known each other for more than 30 years, but their romantic association began in about 1996, shortly after which time the respondent confessed to the applicant he enjoyed dressing in women’s clothes. They began cohabitation in about November 1996 and the applicant deposed how their sexual experiences together sometimes involved the respondent cross-dressing as a female. The respondent asserted that, even then, she genuinely identified as a female and her cross-dressing was not connected to any sexual fetish or fantasy. She regards herself as a transsexual or transgender person, the precise meanings of which terms are said to not yet be completely settled (Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 (“Norrie”) at [108], [230]-[231]), not a transvestite.

2. In 1997, the applicant accepted the respondent’s marriage proposal, about which the respondent deposed in these proceedings:

   She didn’t say yes [to the marriage proposal] to me because she didn’t really know anything about me, she said yes to [the respondent’s male persona] and…she married him.

3. The parties married in 1998, after which they conceived and bore two children; the first in 2007 and the second in 2009.

4. The respondent supressed her urge to identify as female as the children grew and matured so she could, as she deposed, maximise her “impact as a [male] role model”, though she felt “suffocating, relentless and intense pressure” from living an “utterly incongruent” life.

5. In 2013, the respondent informed the applicant she was exploring the internet to try and understand her cross-dressing urge, which led to an interest in “gender affirmation surgery”.

6. The respondent deposed:

   Until I first spoke with [the applicant] about my gender identity in 2013, I thoroughly misrepresented myself to everyone including her out of my own ignorance and fear.

7. The applicant was supportive of the respondent’s inclination to have gender affirmation surgery and so, to that end, the respondent consulted a specialist psychiatrist and an endocrinologist. In 2014, the respondent began hormone replacement therapy and the surgery was completed in 2017.

8. The applicant deposed:

   Since late 2014, I watched [the respondent’s male persona] disappear and [the respondent’s current female persona] begin to arrive.

   …

   When I married [the respondent’s male persona], I believed I was marrying a man, as did my family, my friends and the celebrant… Since I first saw [the respondent’s male persona] as a child and up to 2013, I had no inkling that he was not thoroughly male, but was in fact, a transgender female who since the age of six has outwardly denied her female gender identity; burying her true self under a quirky, hyper-masculine rendering of a man…Now that [the respondent’s current female persona] is finally began true to herself and authentic to the world, she is very different person [sic].

9. In conclusion, the applicant deposed:

   I am glad I married [the respondent’s former male persona] because of our wonderful children and because it has meant I finally found [the respondent’s current female persona]. However, I would not have married [the respondent’s former male persona] if I had known [the respondent’s current female persona] or if I had known it would mean that [the respondent’s current female persona] and I would be stuck in a number of legal limbos simply because of how we were born.

10. In 2015, the respondent successfully changed her name, but not her sex, on the NSW Births, Deaths and Marriages Register. At that point in time, it was not possible under the Births, Deaths and Marriages Registration Act 1995 (NSW) for a person to register a change of sex if the person was married, but that impediment was swept away following the amendment of the Marriage Act 1961 (Cth) (“Marriage Act”) in 2017 to enable same-sex marriages. So, after those amendments, in 2018, the respondent successfully made another application to change her registered sex from “male” to “female” on the NSW Register and, simultaneously, she again changed her registered name.[6]

    [6] Exhibit R2 [page S6]

11. It seems the parties now contemplate the annulment of their existing marriage and their re-entry into marriage as a same-sex couple, since the applicant proposed marriage to the respondent in December 2016.

The application

1. The power to declare the nullity of a marriage arises from s 51 of the Family Law Act 1975 (Cth), but the grounds upon which a marriage may be declared void are prescribed by the Marriage Act (ss 23, 23B).

2. Given the subject marriage was celebrated in 1998, only s 23B of the Marriage Act is relevant for present purposes.

3. The applicant sought to invoke s 23B(1)(d) of the Marriage Act, which provides:

   (1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

   …

   (d) the consent of either of the parties was not a real consent because:

   (i) it was obtained by duress or fraud;

   (ii) that party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

   (iii) that party was mentally incapable of understanding the nature and effect of the marriage ceremony;

   …

4. Although the applicant originally relied on only s 23B(1)(d)(i) of the Marriage Act to make out her claim for relief, with the respondent’s consent, she was granted leave during the hearing to amend her application to rely instead upon s 23B(1)(d)(ii) of the Marriage Act. The effect of the amendment was to abandon reliance upon the contention that the marriage was procured by the respondent’s fraud and to instead assert the applicant did not genuinely consent to the marriage because she was mistaken as to the respondent’s identity.

5. In essence, the applicant’s case was that she married the respondent when she believed her to be a man, but she now accepts she was always really a woman. Therefore, for the purposes of s 23B(1)(d)(ii) of the Marriage Act, she contended she was mistaken about the respondent’s gender identity, not the respondent’s physical identity. She could not have asserted the latter type of mistake to bring herself within the meaning of the provision, since there is no doubt the person she married in 1998 was in fact the respondent, albeit the respondent then used a different name to that which she uses now.

Disposition

1. The issue for determination is whether s 23B(1)(d)(ii) of the Marriage Act may be construed broadly enough to capture spouses’ mistakes about the gender identity of the person they marry, or whether the provision is confined more narrowly to spouses’ mistakes about the physical identity of the person they marry. Bound up in that issue are the questions of how a person’s gender is authoritatively established in the first place and how gender may flux.

2. To determine the application it is not strictly necessary to determine whether the respondent was truly female at the time of marriage; only whether she was not the male gender she then projected, so as to give rise to the applicant’s mistake about her identity. That is because it is now accepted that gender is not a binary construct: either male or female (see Norrie at [114], [121], [160], [181], [184], [190], [200], [236], [242], [249], [253], [261]). The concept of gender is fluid and contemporary understanding of the fluidity means that gender differences are now better regarded as lying along a continuum, rather than presenting a polarised election between two stark alternatives.

3. However, the applicant’s case was that, at the time of marriage in 1998, she mistakenly believed the respondent was a male, but she now accepts she was always truly a female. The respondent positively asserts she was always truly a female, despite her past contrary public presentation. She entertains no doubt at all about her female gender. Accordingly, the parties mutually presented a case which only allowed for a polarised election between the respondent being either male or female at the time of marriage.

Establishment of gender

1. There is no dispute that, at the time of marriage, the respondent had male attributes. He had exclusively male genitalia and he outwardly represented himself as male. His sex was registered as male on the NSW Births, Deaths and Marriages Register and he publicly used the male name by which he was registered. His paternity of the parties’ two children, both conceived after the parties’ marriage, is compelling proof of his physiologically male gender.

2. The applicant’s case was premised on the contention that the respondent’s gender at the time of their marriage should more properly be divined by investigation of her psychological identification of gender, rather than her physiological representation of gender, which dichotomy raises interesting questions about the criteria used to ascribe a person’s gender. Is it by reference to the way the person looks? Is it by reference to the way the person feels? Is it by reference to some other factor? Or is it a combination or permutation of all?

3. Historically, at least in the United Kingdom, it was held a person’s gender was determined at birth by the exclusively biological factors of chromosomes, gonads and genitals and that the designated gender was thereafter incapable of change (Corbett v Corbett (Otherwise Ashley) [1970] 2 All ER 33; Bellinger v Bellinger [2002] 1 All ER 311 (“Bellinger”)), but that is no longer the law in Australia, even if it ever once was (see Kevin (No 2) at [26]-[35], [62], [156]-[195], [237], [240], [255], [280], [292], [295], [376]).

4. In Kevin (No 2), the spouses who initiated the litigation married and sought a declaration that their marriage was valid. They envisaged the declaration was necessary because one spouse was female and, before the marriage, the other spouse had surgically altered his physiological gender from female to male and, without the declaration, their marriage might have been susceptible to public perception as being solemnised between two females and, therefore, invalid. At that time, same-sex marriage in Australia was unlawful. The trial judge found the spouse who surgically altered his gender was indeed male at the time of marriage and so the marriage was valid, because it was solemnised between a man and a woman. On appeal, the Full Court held the determination was open to the trial judge and so the appeal was dismissed.

5. The situation in Kevin (No 2) was the inverse of that presently under consideration because, here, the respondent surgically altered her gender many years after the subject marriage. 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.

6. In Kevin (No 2), the Full Court agreed with the primary judge that the meaning of the word “man”, in so far as it relates to the solemnisation of marriage with a woman under the Marriage Act, has its ordinary contemporary meaning and, further, whether a person meets the definition of a “man” is a question of fact (at [102]-[112], [347], [362]-[365], [368], [374]-[378]). Similarly, the term “marriage” is to be given its contemporary ordinary meaning, not the narrower monogamistic Christian denotation it might have attracted when referred to in the Constitution in 1901 or when the Marriage Act was first enacted in 1961 (at [69]-[87], [118], [128]-[138], [347], [368], [374]-[375]).

7. In Kevin (No 2), the Full Court acknowledged how the cultural drift away from sexuality and procreation towards companionship as fundamental tenets of marriage tends to allow more scope for social and cultural considerations, not just biological factors, to dictate a spouse’s true gender (at [13], [22], [36]-[39], [52]-[60], [152]-[154], [285], [293], [295], [317], [326]-[327], [330], [336], [379]). That trend, in the ensuing 15 years, has only strengthened. The individual’s psyche (the gender the person actually perceives, believes or feels), the individual’s public presentation, and society’s perception of the individual are all factors which are liable to influence the legal characterisation of an individual’s gender (AB v State of Western Australia (2011) 244 CLR 390 (“AB”) at [2], [21]-[23]; Norrie at [110], [114], [152], [159]).

8. The Full Court in Kevin (No 2) went so far as to agree with Thorpe LJ’s dissent in Bellinger, to the effect that psychological factors should predominate physiological factors in determining gender and that a prospective spouse’s gender would be better determined just before marriage, rather than at birth, because gender is not an immutable concept and is liable to variation (at [295]-[296], [326]). Of course, those comments about the time at which gender should be determined for the purpose of deciding marriage validity are no longer apt in anything other than an historical sense, given the recent legalisation of same-sex marriage in Australia, which renders the spouses’ gender irrelevant.

9. The developing law about the importance of psychological, social and cultural factors in determining gender might be regarded as favourable to the parties’ position in this case, but there are two important caveats.

10. First, the High Court in AB and the NSW Court of Appeal in Norrie were both concerned with the statutory interpretation of two different State statutes dealing with the registration of a person’s change of sex after gender assignment surgery, which limits the general application of those authorities in all situations.

11. Second, while the Full Court in Kevin (No 2) was actually considering gender in the context of the Marriage Act, it was specifically concerned with the situation of post-operative transsexual persons at the time of marriage. Significantly, the status of pre-operative transsexual persons contracting marriage was not at issue and the Full Court expressly abstained from extending its commentary that far, because it was a “more difficult question” which should be “determined by another [c]ourt in an appropriate case” (at [67], [357], [382]-[387]). Necessarily, neither was it in issue before Chisolm J in the same proceedings at first instance (Kevin at [19]). Consequently, nothing said by the Full Court definitively determines, for present purposes, the respondent’s gender in 1998 when she married the applicant, years before her gender affirmation surgery.

12. Similarly, in relation to the interpretation of other Federal legislation, the Full Court of the Federal Court has been reluctant to legally recognise pre-operative transsexual persons as being the gender which coincides with their psyche. In Secretary, Department of Social Security v SRA (1993) 118 ALR 467 (“SRA”), the words “woman” and “female” were considered in the context of entitlement to a social security pension. The person who was the subject of the litigation was a pre-operative transsexual person (male to female). The Full Court held the words “woman” and “female” were wide enough to encompass a post-operative transsexual person, who was both anatomically and psychologically female, but not wide enough to include a pre-operative transsexual person, and so the person was denied a pension because she was not legally characterised as a female.

1. The same position has been adopted in relation to State statutes. As Mathews J said in The Crown v Harris & McGuiness (1988) 17 NSWLR 158 (“Harris & McGuiness”), in the context of the application of State crime legislation to a transsexual appellant (at 193):

   So far as the appellant…is concerned, it is urged that…we should also treat biological factors as entirely secondary to psychological ones [in the determination of gender]. In other words, where a person’s gender identification differs from his or her biological sex, the former should in all cases prevail. It would follow that all transsexuals would be treated in law according to their sex of identification, regardless of whether they had undertaken any medical treatment to make their bodies conform with that identification.

   Whilst I have the greatest of sympathy for [the appellant] and for others in her predicament, I could not subscribe to this approach. It goes far beyond anything which has so far been suggested by even the most progressive of reviewers…

   It follows that [the appellant], being a pre-operative transsexual, is still a “male person” [under the relevant legislative provision].

2. SRA and Harris & McGuiness were both referred to with apparent approval by the High Court in AB.

3. Consequently, the demarcation line of gender recognition has so far been objectively drawn with transsexual persons who have actually undertaken gender affirmation surgery to publicly exhibit their gender preference (see Kevin (No 2) at [217]-[222], [382]; Kevin at [118]-[119]).

4. Much the same situation as is currently under consideration was discussed by Chisholm J in Kevin (at [302]-[303]). His Honour hypothesised about the validity of a marriage if one spouse undertakes gender affirmation surgery after the marriage and assumes the same sex as the other spouse. His Honour tentatively considered the marriage would still be valid, because its validity must be determined at the time it was solemnised, at which point in time the spouses were respectively a “man” and a “woman” (presuming it to be before the introduction of same-sex marriages), with which view I am in complete agreement.

5. None of the evidence adduced in these proceedings enables the law to be developed beyond the parameters so far established by Kevin (No 2), SRA, and Harris & McGuiness. This is not the “appropriate case”, to use the Full Court’s words in Kevin (No 2), to embark upon a legal treatise of that magnitude. The breadth of the material placed and the intricacy of the countervailing arguments advanced before Chisolm J in Kevin and the Full Court in Kevin (No 2) far exceeded that with which I was presented. Aside from the parties’ desperation for a favourable result, there was no warrant to break new ground.

6. Since the meaning of “man” should be given its ordinary meaning and fulfilment of the definition is a question of fact, according to the evidence, the respondent was legally characterised as male at the time of the parties’ marriage in 1998. 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.

7. Given that conclusion, could the applicant still have been mistaken about the respondent’s identity such that her consent to the marriage was not genuine?

Construction of the Marriage Act

1. The parties’ marriage was only void pursuant to s 23B(1)(d)(ii) of the Marriage Act if the applicant’s consent to it was not “real” because she was mistaken as to the respondent’s “identity”.

2. The provision has historically been construed to concern only mistakes about the human identity of the intended spouse, not mistakes about the attributes of the intended spouse. So, if X intended to marry Y but instead mistakenly married Z believing him to be Y, the marriage could be annulled because she did not genuinely consent to marriage with Z. But if X intended to marry Y and in fact did so, albeit mistaken as to Y’s qualities as a spouse, the marriage could not be annulled as there was no mistake about Y’s identity. Even if Y passes himself off to X as someone else, for example by using an alias and false credentials, X’s consent to marriage with Y is still real consent because Y was the object of X’s matrimony.

3. None of the more recent first-instance cases which have adopted such a narrow construction of s 23B(1)(d)(ii) of the Marriage Act (usefully extracted in Zacharia & Paradiso [2008] FamCA 688 at [43]-[54]) were contended by the parties to be wrongly decided.

4. Without attempting to either distinguish or explain the incorrectness of those decisions, the parties both sought to draw support from the much older judgment of Bell J in In theMarriage of C and D (falsely called C) (1979) 28 ALR 524 (“C and D”). In that case, the court was similarly considering a wife’s application for a declaration of nullity of marriage on the grounds she did not give real consent to the marriage because she was mistaken as to the husband’s identity. Although her application was brought under the Matrimonial Causes Act 1959 (Cth) rather than the Marriage Act, for all intents and purposes the statutory grounds were the same. Bell J said (at 527):

   The ground of identity is in my opinion made out in that the wife was contemplating immediately prior to marriage and did in fact believe that she was marrying, a male. She did not in fact marry a male but a combination of both male and female [an hermaphrodite] and notwithstanding that the husband exhibited as a male, he was in fact not and the wife was mistaken as to the identity of her husband and the ground under the “Matrimonial Causes Act” is made out.

5. Although C and D has since been authoritatively repudiated for reasons unrelated to the conclusion reached about the wider meaning of mistaken identity (Kevin (No 2) at [205]; Norrie at [130]-[134]), Bell J’s conclusion about the ambit of the statutory test now expressed within s 23B(1)(d)(ii) of the Marriage Act is notable for its isolation from the stream of more recent cases. No other first-instance case is strictly binding, but my view about the width of the statutory test is concordant with the more recent cases, which incidentally enhances judicial comity.

6. However, even if the broader test adopted by Bell J were to be applied in this instance, it would not afford the parties any advantage. In C and D, at the time of marriage, the husband was found to be a hermaphrodite: neither a male nor a female (at 528). The wife mistakenly believed she was marrying a man, so the marriage was void. Here, at the time of marriage, the respondent was male. The applicant consented to marry the respondent, correctly believing him to be a man, so their marriage is valid.  

7. 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. The applicant may not then have known the depth of the respondent’s commitment to the female gender, but that did not amount to mistaken identity. The respondent was and remains the same wise, kind, loyal spouse she intended to marry. In fact, her love for the respondent makes her want to marry her again.

8. The result would have been no different had the applicant adhered to her original application in reliance upon s 23B(1)(d)(i) of the MarriageAct. To succeed in that vein, the applicant had to prove her consent to the marriage was procured by the respondent’s fraud. But there was no fraud, either in the sense contemplated by the Marriage Act or in fact.

9. The fraud required by the Marriage Act is that which causes the applicant to consent to a marriage with someone other than the person physically standing at the altar or before the celebrant, but does not capture fraudulent claims or promises which portend a tantalising future (see Osman & Mourrali (1990) FLC 92-111 at 77,743). The applicant intended to marry the respondent and did so. Her consent was genuine.

10. The respondent did not defraud the applicant about her character in any event. She represented herself to the world as a man because she was then male. The respondent’s personal inclination at that time to be female was not so strong as to induce her to represent herself as female. Her predilection to dress as a female occurred in private but was well known to the applicant before their marriage anyway. The respondent did not then have any formed intention to change gender, so nothing was kept from the applicant. The respondent’s subsequent transition to the female gender was the revised public manifestation of how she felt, but it did not render her antecedent male gender deceitful; only different.

11. The evidence does not enable the applicant to bring herself within any limb of s 23B(1)(d) of the Marriage Act.

Conclusion

1. I am satisfied the parties genuinely believe in the merit of the nullity application, but their honesty and emotional investment in the outcome cannot be persuasive. As was recognised in Bellinger (at [99]), the legal recognition of marriage and divorce is a matter of status and is not for the spouses alone to decide. It affects society and is a matter of public policy.

2. No doubt the parties will be disappointed by the dismissal of this application, which result hinges essentially on legal interpretation, but it should not be regarded by them as any disrespect for, or slight against, the respondent’s gender.

3. There will be no order for costs because the respondent was self-represented and supported the failed application.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 November 2018.

Associate:

Date:  21 November 2018