LINVILLE & LINVILLE

The applicant sought a declaration of nullity of marriage from the Family Court of Australia. The dispute arose because the respondent, who identified as a male at the time of the marriage, later underwent gender affirmation surgery and identified as female. The applicant contended that she was mistaken as to the respondent's gender identity at the time of the marriage, arguing this rendered the marriage void. The respondent supported the applicant's application.

The central legal issue before the Court was whether the marriage was void under s 23B(1)(d)(ii) of the *Marriage Act 1961* (Cth) due to the applicant's mistaken belief about the respondent's gender identity. Specifically, the Court had to determine if the respondent was a "man" at the time of the marriage solemnisation and whether the statutory provision could be interpreted broadly to encompass a mistake regarding a spouse's gender identity, as distinct from their physical sex.

Austin J reasoned that the *Marriage Act 1961* (Cth) defines marriage as a union of a man and a woman. His Honour found that the respondent was a biological male at the time of the marriage, and therefore, the marriage was between a man and a woman as required by the Act. The Court held that the applicant's mistake related to the respondent's gender identity, not their biological sex at the time of the marriage. Consequently, the Court concluded that s 23B(1)(d)(ii) of the *Marriage Act 1961* (Cth) could not be construed to cover a mistake about gender identity in this context, and the marriage remained valid.

The Initiating Application was dismissed, and no order was made as to costs.