The High Court held that a marriage was void because the respondent wife had not given full, free and informed consent. The ruling was made on a preliminary nullity issue arising in divorce proceedings; the judgment does not itself set out a divorce decree or final financial orders.
Mr Justice Henry Abbott delivered the judgment on 17 July 2009. The parties, identified as S.B. and F.L., married in Ireland in 1978 and had no children. They received a judicial separation order in 1993. In 2005, S.B. began divorce proceedings. F.L. raised nullity, and the court ordered a preliminary hearing on whether the marriage was void or voidable. By agreement, F.L. was treated as petitioner for that issue. S.B. attended with her legal representatives but took no further part in the hearing, which proceeded as an undefended nullity petition. The judge said this required special care in assessing the evidence.
The dispute concerned what F.L. knew before the marriage about S.B.’s cross-dressing and later transition. F.L. said she first became aware of cross-dressing about six months after the wedding and did not know S.B. wished to live as a woman. The judge accepted that account. He found that S.B. had concealed a deeper desire to transition, which he concluded was present by 1982 and known to S.B. at the time of the marriage. The court’s conclusions rested on the evidence, including accounts given to medical experts and treating clinicians, and a pamphlet found after the judicial separation.
The court found that F.L. would not have married S.B. had she known of the relevant condition and concluded that her consent was absent. It answered “no” to whether F.L. gave full, free and informed consent. It answered “no” to whether F.L. lacked capacity to sustain a normal marriage, but “yes” as to S.B., qualifying that answer by reference to F.L.’s state of mind and her inability to contemplate marriage with a person in S.B.’s condition. The judge also answered “yes” to the parties’ joint-capacity question, subject to that qualification.
Because the court held the marriage void for lack of consent, it said the question of approbation—whether F.L.’s conduct affirmed the marriage—did not arise. It also found any delay in seeking nullity after F.L. learned of S.B.’s transition was not unreasonable. The judgment records that the parties had agreed financial arrangements for consideration if divorce were granted, but it does not decide those arrangements in this preliminary nullity ruling.