With the announcement today that the High Court in Australia has ruled that two transgender people can be recognised as men, despite not having completed the full medical sex change process, it is worth reminding ourselves of the impact of this procedure upon Scottish Divorce Law.
Until 2004, the only ground for a divorce in Scotland was that the marriage had broken down irretrievably. However, this changed with the introduction of the Gender Recognition Act 2004, which is a UK wide piece of legislation.
The 2004 Act amended the existing divorce legislation in Scotland (which can be found in the Divorce (Scotland) Act 1976) and now provides two grounds for divorce. Those are firstly, the existing ground that the marriage has broken down irretrievably and now, secondly, that an Interim Gender Recognition Certificate has been issued, after the date of the parties’ marriage.
Under the 2004 Act, transsexual people can now gain legal recognition of their acquired gender (which is the gender they perceive themselves to be, rather than their gender at birth).
A person wishing to change their official gender can apply to the Gender Recognition Panel for a Gender Recognition Certificate. If that is granted, then the law recognises that person to be of their acquired gender and as a result, they can obtain a new birth certificate.
It is important to be aware that it is not possible for a full Gender Recognition Certificate to be issued whilst that person is still married to their spouse as, under the existing law, it is not possible for two people of the same gender to be married, at this time.
Therefore, in practical terms, the 2004 Act allows that person to obtain an Interim Gender Recognition Certificate first of all. That then allows them to apply for a divorce and thereafter, once Decree of Divorce has been granted, they will then automatically be issued with the full Gender Recognition Certificate.
So, whilst it is encouraging that the law is finally giving the recognition to transsexual people that they quite rightly deserve, many would still welcome a further change to the existing law, which would make same sex marriage legal and thus provide those couples with the same legal rights that are available to married couples.
Elaine Sym is a specialist Family Law Solicitor. If you have further questions about separation or divorce please contact Elaine on esym@thorntons-law.co.uk or call 03330 430150.
