Source: http://www.pfc.org.uk/news/1996/nullity.htm

A MARRIAGE was declared null and void after 17 years when the wife discovered that her husband was a woman, the Court of Appeal was told yesterday.

Susanne Coates, representing the wife, said the marriage was based "on a profound deception".  The transsexual husband used an artificial penis for sexual intercourse and the "wife always believed he was a man", she told the court.  The pair cannot be named to protect their children, born after the woman underwent artificial insemination from a donor.  She had told the hospital that her husband said he had had a vasectomy.

The former husband took his case to appeal yesterday after a High Court judge ruled that because he had married by committing a perjury, he was not entitled to ancillary relief - the division of marriage wealth - nor automatic access to the children.  Lord Justice Ward asked: "So the wife didn't know the truth about his sex at the time of marriage? On the day they stood before the rector in their parish church she did not know the truth?"

The man's counsel, Ben Emerson, said that his client had "an unshakeable conviction that at his core he was a man although he was trapped in a woman's body".  Mr Emerson said that it was never discussed before or during the marriage "what the nature of this man's birth position was".

He said that Mr Justice Hollis, in the High Court Family Division, had based his ruling on the basis that the man had committed a "profound betrayal of trust" whereas the defendant was "deserving of sympathy and understanding rather than moral condemnation".  Mr Emerson said there was ample chance during sexual intercourse before the marriage for the woman, who is now 49, to realise "that what was taking place was a relationship with someone who was not a full-blooded man".

She began divorce proceedings after a serious argument when she accused him of not being a real man

The man, who is now 50, had had an operation to remove his breasts and had undergone hormonal treatment before he met the woman.  Mr Emerson said that the transsexual now believed that the most serious mistake of his life was not to complete the treatment and have a phalloplasty, in which surgeons build a penis from body tissue.  He had never told her about his original gender and he now accepted that he should have done so, Mr Emerson said.

When he applied for a marriage licence he described himself as a bachelor and declared there was no impediment to the union.  Mr Emerson said he was permitted by law to act as a man and was encouraged by his doctors to pass himself off as a man.  The wife had denied that she went with the man to a sex shop in Soho to buy an artificial penis for him but Mr Justice Hollis said that from the evidence this did happen.

The wife said that at no time did she ever realise that her husband was using a prosthesis and thought he was just deformed or very small but did not discuss it with him.  She began divorce proceedings after a serious argument when she accused him of not being a real man and she employed a private detective who found his birth certificate.

Miss Coates said that one of the reasons for the couple's divorce was that marriage must be between a man and a woman and the original judgment was supporting the institution of marriage.  Because of the deceit in saying he was a man he was precluded from ancillary relief after the marriage was declared void.

Lord Justice Ward, after announcing that the judgment would be reserved to a later date, said: "We are aware of the growing body of medical and international opinion that this court will ignore at its peril."

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