Sexual Citizenships in the Law

Sexual Citizenships in the Law

Re Kevin [2001] FamCA 1074



Facts

Kevin and Jennifer got married in 1999 on 21st August. Now they want the court to validate their marriage as Kevin had transformed to a man. The legal issue in this case is to identify and determine whether Kevin was a man at the time of marriage or not. Following are the main facts of the issue (Koppelman, 2002):

For purposes of assessing the validity of a marriage under Australian law, the fact that one (or both) of the spouses is a woman or man should be found out prior to the wedding being held.

According to the Australian law, there is no legal standing of the fact that the gender of either or both of the spouses is determined according to their birth.

Prior to marriage Kevin underwent a complete transsexual reassignment procedure, which included, hormonal treatment, irreversible surgery, in all cases performed by leading medical professionals.

When marriage was taking place, Kevin had a male characteristics, behaved in a manly manner and also looked like a male. He was accepted as a man by others, as well.

In addition to this, his friends, family and colleagues knew and accepted his marriage to Jennifer.

Legal Issues in Contention

In re Kevin (Validity of Marriage of Transsexual) settled by the Family Court of Australia, the main issue was to understand the evolution experienced in law and jurisprudence Australian legal treatment and legal status of transsexuals. Specifically in Re Kevin (Validity of Marriage of Transsexual), Kevin, a person born a woman and subjected to gender reassignment operations, asked with his life partner, Jennifer, would recognize the validity of a marriage that had taken place. Indeed, the plaintiffs had celebrated their marriage on August 21, 1999, and before the courts requesting a declaration of Australians validity of their marriage. The issue at stake for this task was, then, in determining whether the husband at the time of the celebration of the wedding was a man. The contradictory opposition was made up by the Attorney General, to whom the claim should be rejected on the grounds that the husband was not a man for the purposes of marriage law(Menon, 2007). The Australian law has no basis or guide for determining when a person is a man or woman for the purpose of marriage, the prosecutor advised to stick to the decision in the English precedent of 1971, Corbett that was previously analysed by the court before application to the case.

Legal Reasoning on the Issue

The main issue of this case, that whether Kevin is a man or not has been resolved as according to section 46(1) of the Marriage Act and section 43 of the Family Law Act, he is regarded as a man. Kevin is not liable to prove himself apart from these laws because the Australian law does not say so. He does not have to prove and present his transsexual background in order to obtain validity for his marriage. Under these acts, he is a ...