Tom Cross successful in trans marriage human rights case


The Family Division of the High Court has today handed down judgment in AP and JP v Secretary of State for Justice [2024] EWHC 1197 Fam. It has refused to make a Declaration of Incompatibility in respect of an aspect of the Matrimonial Causes Act 1973 (MCA) in the context of a marriage involving a trans partner.

AP was a fully transitioned trans man at the time he married his partner JP, a woman, in 2009. But he did not have a gender recognition certificate. This meant that, in law, both parties to the marriage were of the same legal sex (female). At the time, same-sex marriage was not legally recognised in the UK. Accordingly, their marriage, as held by Cobb J in AP v JP [2019] EWHC 3105, was void. A void marriage is treated as if it were never entered into.

For various reasons, AP wished to obtained a decree of nullity in respect of the void marriage: that is, a formal document from the Court that the 2009 marriage was void. But, following an amendment to the MCA made by the same-sex marriage legislation in 2014, it is no longer possible in domestic law to obtain a decree of nullity on the ground that the parties were of the same sex. There are no transitional provisions in respect of those who same-sex married prior to the amendment.

In this case, AP argued that his inability to obtain a decree of nullity in respect of the 2009 marriage was contrary to his human rights.

The High Court rejected that argument, and refused a decree of nullity. There are three notable aspects of the judgment for human rights law.

First, the Court engages in a detailed analysis of the law on ‘victim’ status, which is required for a person to advance a claim of breach of human rights both in the Strasbourg and domestic courts. The Court decided that AP lacked victim status. Secondly, the Court analyses the scope of the right to marry in Article 12 of the European Convention on Human Rights. This is concerned with the formation of marital relationships. It held that Article 12 was not engaged here and that AP could not in those circumstances rely on other Convention rights. Thirdly, it held that even if the MCA is incompatible with the ECHR, applying Ghaidan v Godin-Mendoza [2004] 2 AC 557 the Court could not ‘read it down’ by treating it as containing a ground for a decree of nullity which had specifically been repealed.  

Tom Cross successfully resisted the application, instructed by the Secretary of State for Justice.

You can read the judgment here.