Intersex and marriage

Family Law > Australian Family Law Cases > 1979 CASES > In the marriage of C and D (falsely called C).
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In the marriage of C and D (falsely called C).
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(1979) FLC ¶90-636
Other publishers' citations: (1979) 35 FLR 340 (1979) 5 FamLR 636 (1979) 28 ALR 524
Family Court of Australia at Brisbane.
Judgment handed down 20 April 1979.
Nullity — Husband an hermaphrodite — Ground of identity — Matrimonial Causes Act — sec. 4(b) —
Definition of ``matrimonial cause'', 5(b); 18(1); 113; Rule 312; Marriage Act — sec. 46(1); 69(2).
The parties went through a ceremony of marriage in 1967 and lived together until about May 1978. The
husband, unbeknown to the wife at the date of the marriage, had been diagnosed as an hermaphrodite
and had undergone certain operations. The wife claimed that the husband since the marriage was unable
to consummate the marriage and sought an application for a declaration as to the validity of marriage.
However, as under the Matrimonial Causes Act 1959 the court did not have jurisdiction to make a declaration
of validity of marriage, and as it had been held in England that a nullity suit was the proper method of having
a marriage declared to be void and that no declaration proceedings could be entertained, Bell J. suggested
to counsel for the wife that an application for a declaration of nullity be filed, which was done.
Bell J. then dismissed the application for declaration of validity of marriage and pronounced a decree of
nullity. His Honour held:
(i) the law to be applied in determining whether or not the marriage was void was that at the date of the
marriage;
(ii) the grounds for a void marriage were those contained in sec. 18(1) of the Repealed Act;
(iii) the ground in sec. 18(1)(d), namely that ``the consent of either of the parties is not a real consent
because... (ii) that party is mistaken as to the identity of the other party... '', was made out. 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, notwithstanding the fact that the
husband exhibited as a male;
(iv) further, the definition of ``marriage'' as understood in Christendom is the voluntary union of one man
and one woman to the exclusion of all others for life and a marriage in the true sense of the word within that
definition could not have taken place and did not exist.
Appearances: Mr. S.D. Rapoport of Counsel instructed by Messrs. K.G. Shine & Dean, Solicitors for the
applicant/wife. There was no appearance for the respondent/husband.
Before: Bell J.
Full text reproduced below.
Bell J.: D (falsely called C) (hereinafter referred to as ``the wife'') went through a ceremony of marriage with
C (hereinafter referred to as ``the husband'') on 4 February 1967.
Family Law > Australian Family Law Cases > 1979 CASES > In the marriage of C and D (falsely called C).
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The parties lived together until in or about the month of May 1978.
R who was born on 28 January 1970 and K who was born on 12 November 1973, are children of the
marriage within the meaning of those words as contained in the Family Law Act. K was adopted and R is a
child of the mother but not of the husband.
Regrettably it is necessary for me to consider the husband's birth and subsequent development as a result of
what will become patently obvious at a later stage.
The parents of the husband appear to have been related. From their union eight children were born — the
husband in this case, twin siblings who died in infancy, one normal brother, three brothers suffering from
varying degrees of nervous and mental
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problems and all of whom are presently receiving full care at Baillie Henderson Special Hospital (a
Psychiatric Hospital), and one sister who was classified as subnormal and is being cared for at a Refuge
conducted by the Sisters of Mercy. The parents of the husband are now dead.
The husband was educated at a college on a scholarship and his childhood was uncomplicated by any
serious illness or operation. However between the ages of thirteen years and twenty years he noticed that his
breasts had developed to such a marked degree that it aroused the curiosity and interest of his workmates.
They frequently made fun of him, annoyed him and ridiculed this female-like quality. He only required to
shave every three or four days. He does not have profuse facial hair growth even at this stage.
Early in life and up until about the age of twenty-two years, he was unable to stand and urinate in the normal
male fashion. At the age of sixteen years he commenced to have a monthly loss of blood and this continued
until he was about twenty-two years. This was of course a great distress and embarrassment to him. He
was at a loss to comprehend or understand all this and received very little comfort and/or support from his
parents.
At the age of twenty-one years the husband consulted his doctor in Warwick for recurrent abdominal pains.
The doctor performed a surgical operation on the abdomen and found that the husband had an ovary and
a uterus and he was subsequently referred to a specialist in Brisbane and had four surgical operations at
the age of twenty-two years to correct his external sex organs. He also had an operation for the removal of
both breasts. As a result the medical practitioners who were involved presented a paper which was published
in the Medical Journal of Australia on 11 June 1966. I do not consider that I need to go into any further
details concerning the tragic life of the husband in this case but that to say he has been diagnosed as an
hermaphroditus verus; in other words a true hermaphrodite.
As was said in the Medical Journal, an hermaphroditus verus is most uncommon. A karyotype of a cell
from the peripheral hood showed a count of 46 chromosomes and a normal female sex chromosome
complement and all the cells which were analysed from the husband's body conformed to this pattern.
Notwithstanding the chromosomal arrangement, the surgery carried out on the husband was such as to
confirm the recognition that he was born a male and had been reared as a male.
Shortly after the operation referred to, the husband became engaged to his wife and they went out together
for some five years prior to marriage. No form of sexual intercourse took place between the parties prior to
marriage. Subsequent to marriage the evidence of the wife is that the husband was unable to consummate
the marriage.
Form of relief sought
The original application filed in this court was an Application for a Declaration as to the validity of marriage.
An Application for Declaration as to validity or dissolution or annulment may be made pursuant to sec.
113. See sec. 4(b) — Definition of ``Matrimonial Cause''. ``The Matrimonial Causes Act 1959'' did not have
Family Law > Australian Family Law Cases > 1979 CASES > In the marriage of C and D (falsely called C).
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jurisdiction to make a Declaration of Validity of marriage. See definition of ``Matrimonial Cause'' (b) of sec. 5
and also r. 312.
Declarations of validity of marriage have been made in both England and Canada — Stockholder &
Stockholder (1934) 1 W.W.R; Aldrich & Aldrich G. (1968) P. 281; Qureshi & Qureshi (1972) Fam. 173, and
that a marriage has been validly dissolved — Carr & Carr (1955) 2 All E.R. 61; Adams & Adams (1961) P.
188.
But it has been held in England that a nullity suit is a proper method of having a marriage declared to be void
and that no Declaration proceedings could be entertained. See Har-Shefi v. Har-Shefi (No. 1) (1953) P. 161
and Kassim v. Kassim (1962) P. 224. In Kassim's case (supra) Mr. Justice Ormrod, as he then was, referring
to the jurisdiction of the then Probate, Divorce and Admiralty Jurisdiction, said: —
``The jurisdiction of this court to deal with marriages void ab initio exists quite independently of the
Rules of the Supreme Court and unlike that jurisdiction is not a matter of discretion. Either party and,
indeed, third parties having an interest in the subject-matter
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are entitled ex debito justitiae to a declaration on proof of the necessary facts. This conclusion is
strongly reinforced by an examination of the wording of the order in which a decree of nullity is drawn
up. The decree is itself a declaration.''
The Family Court has no competing rules as referred to in this extract. I am of the opinion however that a
decree of nullity is itself a declaration. See F. 25.
I am satisfied that once facts are proved to establish that the marriage is void, the court has no jurisdiction
to find other than the marriage was no marriage and declare in accordance with F. 25 that the marriage be
absolutely null and void.
Having come to that conclusion, I suggested to counsel for the wife that an application for a declaration of
nullity should be filed. He did so and I made certain conditions as to service. The husband, by an affidavit
filed on 8 March 1979, indicated that he did not wish to contest the application for nullity or file any answer or
affidavit in reply.
The law to be applied
The law to be applied in determining whether or not this marriage is void is that at the date of the marriage.
Schmidt and Schmidt (1976) FLC ¶90-052.
The ground
The grounds for a void marriage were those contained in sec. 18 subsec. (1) of ``the Matrimonial Causes Act
1959'' and as I apprehend the submission of counsel for the wife, the ground upon which he is relying is sec.
18(1)(d): —
``the consent of either of the parties is not a real consent because —
(i)...
(ii) that party is mistaken as to the identity of the other party, or as to the nature of the ceremony
performed;''
(emphasis mine)
Family Law > Australian Family Law Cases > 1979 CASES > In the marriage of C and D (falsely called C).
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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 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.
But there is in my opinion a further fatal argument to the existence of any marriage. In Corbett v. Corbett
(1971) P. 83 at p. 106, Mr. Justice Ormrod (as he then was) said: —
``Since marriage is essentially a relationship between man and woman the validity of the marriage in
this case depends, in my judgment, upon whether the respondent is or is not a woman.''
In that case the respondent to an application for nullity had been registered at birth as a male and had in
1960 undergone an operation for the removal of the testicles, most of the scrotum and the construction of an
artificial vagina. Since the operation the respondent lived as a woman. Then in December 1963 the petitioner
filed a petition for a declaration that the marriage was null and void because the respondent was a person
of the male sex, or alternatively for a Decree of Nullity on the ground of either incapacity or wilful refusal to
consummate. His Honour said at p. 106, supra: —
``The question then becomes, what is meant by the word `woman' in the context of a marriage, for
I am not concerned to determine the `legal sex' of the respondent at large. Having regard to the
essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in
my judgment, be biological, for even the most extreme degree of trans-sexualism in a male or the
most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads
and male genitalia, cannot reproduce a person which is naturally capable of performing the essential
role of a woman in marriage. In other words, the law should adopt in the first place, the first three of
the doctors' criteria, i.e., the chromosomal, gonadal and genital tests, and if all three are congruent,
determine the sex for the purpose of marriage accordingly, and ignore any operative intervention. The
real difficulties, of course, will occur if these three criteria are not congruent.''
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In this case the husband, after surgery, exhibited as a male in two of the three criteria. However the
chromosomal indications are that he is a female. This matter loomed large in the minds of the medical
practitioners who carried out the surgical procedures upon the husband and their opinions were that he
should be transformed into a male rather than a female since he had for a considerable number of years
been treated as a male. Subsequent medical practice appears to case some doubts upon this.
In Talbot v. Talbot Vol. III Solicitors' Journal at p. 213, where the petitioner, a widow, married the respondent,
a person known as John David Talbot, who purported to be a bachelor but was in fact a woman, discovered
the true state of affairs on the day after the ceremony but lived with the respondent for about one year. She
instituted proceedings of nullity. Ormrod J. was of the opinion that there was no marriage.
Ormrod J. in both of these cases imported into his Judgments a definition of ``marriage'' which is that
``marriage is essentially a union between a man and a woman''. There does not appear in either ``the
Marriage Act'' or ``the Matrimonial Causes Act 1959'', as at the date of the marriage, a definition of what a
marriage is, but in sec. 46(1) of the Marriage Act, the following words are used: —
``marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all
others, voluntarily entered into for life.''
Identical words are used in sec. 69(2) also.
Family Law > Australian Family Law Cases > 1979 CASES > In the marriage of C and D (falsely called C).
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I am unaware of the law to which these words refer, but I have no hesitation in saying that the definition of
``marriage'' as understood in Christendom is the voluntary union of one man and one woman to the exclusion
of all other for life. See Nachimson v. Nachimson (1930) P. 217 at p. 224.
I am satisfied on the evidence that the husband was neither man nor woman but was a combination of both,
and a marriage in the true sense of the word as within the definition referred to above could not have taken
place and does not exist. In those circumstances —
It is ordered:
1. That the Application for Declaration of Validity of Marriage is dismissed.
2. That a Decree of Nullity is pronounced.