• In the case of Bellinger v Bellinger [2003] UKHL 21, it was ruled that the Section 11(c) of Matrimonial Causes Act 1973 is incompatible with Section 4 article 8 and 12 of the European Convention on Human Rights Act 1998.
  • Legal Principles:

Matrimonial Causes Act 1973 Section 11(c),

“A marriage … shall be void on the following grounds only, that is to say … that the parties are not respectively male and female …” (now repealed)

European Convention on Human Rights Act 1998 Section 4 Schedule 1 Part 1,

Art 8: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence.”Art 12: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

Facts of the Case

  • C was a transgender female, who was born male.
  • Under s.11(c) of the matrimonial Causes act 1973, she was denied the right to marry because they considered the biological aspects of ‘male’ and ‘female’.

Issues in Bellinger v Bellinger [2003] UKHL 21

  • C claimed for the validity of her marriage as both the parties were not ‘male’ and ‘female’ in the definition set aside by 11(c) of Matrimonial Causes Act 1973.
  • Incompatibility of Section 11(c) of the Matrimonial Causes Act 1973 is with Section 4 Article 8 and 12 of the European Convention on Human Rights Act 1998.

Held by the House of Lords

  • The court declared that there was an incompatibility between Section 11(c) of the Matrimonial Causes Act 1973 and Section 4 Article 8 and 12 of the European Convention on Human Rights Act 1998.

Lord Nicholls of Birkenhead

  • In Corbett v Corbett [1971] P 83, the biological aspects of a ‘male’ and ‘female’ were considered while determining the gender. The learned judge rejected this and asked to consider the broad meaning instead.
  • “The court should not be bound by the classification of gender at the time of the birth but should look at the reality of the situation at the time of the marriage. That involves taking account of matters such as the psychological state and lifestyle of the person concerned.”
  • Regarding ECHR, the judge held that the case of such sensitivity concerning primary legislation will be looked into by the parliament.