Changing one’s sex to the opposite of one’s partner may be insufficient to obtain a legal marriage. A court is questioning whether it has the authority to grant a divorce to a couple when the man had previously been a woman. The man has undergone a mastectomy and reconstructive surgery but retained his uterus and ovaries. He gave birth to the couple’s three children, aged 4, 3, and 2, receiving national recognition and writing a book about the experience.
The judge said the difficulty was in whether he could legally define a person who can give birth as a “male.” If the husband were a woman, making the two a same sex couple, then the court could not recognize their marriage as legal and binding. It follows that if the marriage was not legal in the first place, no divorce can be granted. This sort of problem could potentially arise in Illinois, where the law still prohibits non-heterosexual marriage.
The couple was married in Hawaii in 2003 after the husband had the surgery and had his driver’s license changed to say that he was male. The couple now lives in Arizona.
If the couple cannot undergo a divorce, then the family law court will not be able to divide their property according to state marriage laws. This means that any property settlement may have to go before a civil court as a non-family matter. An additional result of failing to grant the divorce would be that the husband would not have to pay his wife alimony. Still, he reportedly would prefer that the court legally recognize their marriage, even if not doing so would save him money. For him, it is a matter of legitimacy.
On a related note, Illinois lawmakers recently delayed a vote on whether to legalize gay marriage. It is unclear when it will revisit the issue. Until gay marriage becomes legal, same sex couples who wish to enter into a binding relationship would benefit from a life partner agreement. Life partner agreements can address things such as property division and child guardianship issues.
Source: CBS News, “Same-sex marriage ban and a sex change muddles a divorce,” Dec. 31, 2012