England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FAFMI 96/0245/F

IN THE COURT OF APPEAL (CIVIL DIVISION )

(MR JUSTICE HOLLIS )

Royal Courts of Justice

Strand

London W2A 2LL

Thursday 21st November 1996

B e f o r e

LORD JUSTICE WARD

LORD JUSTICE POTTER

SIR BRIAN NEILL

J v. S T (formerly J )

(Handed down transcript of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

MR B EMMERSON (instructed by Messrs Tyndallwoods, Birmingham) appeared on behalf of the Appellant (Defendant).

MISS S MULHOLLAND (instructed by Messrs thomas Eggar Verral Bowles, Horsham, West Sussex) appeared on behalf of the Respondent (Plaintiff).

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE WARD: The preliminary issue directed to be tried in this case was whether the Defendant should be debarred from continuing his claim for ancillary relief on the ground that it is contrary to public policy. His claim was made following a decree of nullity granted to the Plaintiff on 20th December 1994 declaring the marriage solemnised between the parties to have been void by reason of the fact that at the date of the ceremony the Defendant, a female to male transsexual, was not by law a male. On 25th January 1996 Hollis J. ruled that the question be answered in the affirmative and he dismissed the Defendant's claims. It is against that Order that the Defendant now appeals with the Judge's leave.

It is essentially a sad story. I, like the judge, have sympathy for both parties as each has suffered greatly, albeit in completely different ways.

The Defendant, for whom I use the male pronoun, was born into a modest home in the north of England. He was registered at birth as a girl named Wendy. It is not disputed that at birth he had the chromosomal, gonadal and genital features of the female sex. He was never at ease in that sex and increasingly acted and dressed as a boy. Aged 14, when in trouble with the police, he gave the false name Michael which he has ever since adopted. There followed some, but it is unclear what, psychiatric intervention. We now know that he was born with a recognised Gender Identity Dysphoria - transsexualism. By the age of 17 he was living as and had become socially accepted as a male. He was attracted by and attractive to the female sex and at the age of about 20 began the first of two quite long relationships with women. It must have been about this time that he used an improvised prosthesis to engage in sexual intercourse. It was a rigid device which he wore more or less permanently. In 1972, at the age of about 26, and whilst in the course of his second relationship, he suffered a period of severe depression, feeling trapped in a body 'that was not mine' and 'unable to go on living'. After intensive psychiatric counselling, he was given a course of injections of testosterone which led to the development of secondary male characteristics including the growth of a beard. As he said in his statement:-

"These painful injections began to transform me; my voice broke, my breasts shrank. I began to look like a man. At the same time my depression eased, and I felt a tremendous sense of relief."

A letter from the Consultant Psychiatrist, Dr Fleming, dated 19th October 1973, survives. Dr Fleming reported:-

"There is no doubt at all that this is a case of true transsexualism with the patient behaving, thinking and feeling in every way as a normal male. The patient's interests have always been of a masculine nature both before and after puberty with normal sexual feelings towards females. In my experience the only hope of any improvement in a case of this sort is by re-registration as a male. The patient has for a long time selected the Christian names Michael Paul and has requested bilateral mastectomy. The patient is 27 years of age...and for some considerable time has courted a woman ... whom she hopes to marry once her name has been changed by the appropriate department..."

Dr Fleming supported the Defendant's request for his driving licence and National Insurance records to show his new name but his birth certificate could not be and was not altered. He referred the Appellant for a bilateral mastectomy which was performed in December 1973. It was such a difficult operation that the Defendant never underwent the further recommended surgical procedure of phalloplasty for the construction of a penis. Physically, therefore, his body was scarred from the removal of his breasts, he retained the large nipples of a woman, and, more relevantly, the genital organs of a woman but to all other intents and purposes in his attitude of mind and behaviour he was a man. To make a new start in life he moved to London and it was in the Home Counties that, in December 1977, he met the Plaintiff.

In stark contrast to the humble circumstances into which the Defendant had been born and in which he had lived, the Plaintiff's background was one of wealth and privilege. She was 19 years old - 11 years his junior - when they met and was an unhappy theology undergraduate disaffected with University. She had taken a vacation job at the public house at which the Defendant was the assistant manager. It was common ground that she had no real sexual experience but within a short time of their meeting they began an intimate relationship. They had sexual intercourse in which the Defendant was able to engage using his false penis. They began to live together and on 7th July 1977 went through a ceremony of marriage despite opposition from the Plaintiff's family.

In 1985 they were able to persuade a fertility clinic to provide artificial insemination by donor sperm for the Plaintiff. The result was that in 1987 she gave birth to a son and in 1992, following further treatment, to a daughter. The apparent ease with which they were able to obtain this treatment without the truth being disclosed or discovered is, for me, one of the puzzling and, I feel bound to add, unsatisfactory features of this case.

The relationship began to break down and in April 1994 the Plaintiff presented a Petition for Divorce alleging that the Respondent 'husband' had behaved in such a way that she could not reasonably be expected to live with him. The proceedings were defended. The relationship degenerated further to the extent that the Plaintiff applied for an injunction to exclude the Defendant from the matrimonial home. On 22nd May 1994 shortly before the hearing of this application, there was a serious argument between them, the detail of which will again be examined later, but the gist of which for the purpose of this narrative, related to the Defendant's manhood. According to the Plaintiff, he undid his trousers and exposed his artificial penis, asking whether that was not good enough for her to which she retorted, 'It's not real'. On 23rd May 1994 the Plaintiff confided to an old school friend who happened to be a private investigator that there were 'peculiarities about Michael's physique; his nipples, the scars under his arms, the fact that he used an artificial penis and the (blood stains) upon his underpants' and of her belief that he was not very well endowed or even sexually deformed. The friend took rapid action and on 25th May informed the Plaintiff that in fact the Defendant had been born a girl. At the hearing of the injunction the following day a copy of the Defendant's birth certificate was produced in Court and, as the Judge found, 'at the sight of it the Defendant more or less collapsed.' This information appears to have been no less shattering to the Plaintiff who, at the time of the hearing before Hollis J. twenty months later, was still receiving counselling for the shock it gave her.

This bombshell changed the course of the proceedings. The Defendant gave undertakings to vacate the matrimonial home which he did the following day. Directions were given for his pending application in the divorce proceedings for contact to the children to be treated as a free-standing application under the Children Act 1989 and the Official Solicitor was appointed as Guardian ad Litem to the children. That application was decided by the President, the Rt. Hon. Sir Stephen Brown, who found on 18th May 1995 that in the particular circumstances of the case, the high degree of acrimony and hostility exceptionally justified the termination of 'father's' contact to the children. In the course of his judgment he commented, and the Defendant relies on the observations:-

"It is a curious story on any account, and it is an extraordinary feature of this case that the Applicant himself acknowledges that the situation was never discussed. He maintains that from an early stage the mother did know that he was a woman; indeed he says she had placed her fingers into his vagina. That is denied by the mother. It is not easy to form a view as to what is the truth of that matter. I am not in a position to make a finding on that particular incident. What is quite clear is that they continued their relationship in the succeeding years and that this situation was apparently never discussed between them. It is clear that the Applicant could not have appeared to the mother as - if one might so term it - a 'full blooded' male. He did not have the organs of a male and there were obvious signs on his body which indicated that he was in no sense a normal biological male."

Later in the Judgment he said:-

"It is not possible for me to make specific findings on the evidence that I have heard as to how much the mother did in fact know of the condition and gender of Mr J. I believe that the discovery of the Birth Certificate did have an effect upon her. It would seem that there must have been signs which should at least have prompted discussion but apparently, and according to both parties, this never took place. However the sight of the Birth Certificate appears to have triggered the realisation on her part that there was something fundamentally wrong, not merely an inadequately or curiously formed male."

The legal consequence of the discovery of the birth certificate was that the Divorce Petition was dismissed and a Nullity Petition was issued by the Plaintiff which, being undefended, led to the Decree Nisi of Nullity being granted on 19th August 1994 which was made Absolute on 20th October 1994. The Defendant then applied in those nullity proceedings for ancillary relief seeking orders for periodical payments, a lump sum and a property adjustment in respect of the substantial property which was the matrimonial home. Affidavits of Means revealed the Plaintiff to be a woman already possessed of a considerable fortune whereas the Defendant had no other assets than those which had been given to him by the Plaintiff during the course of 'the marriage'. The Plaintiff made an application for ancillary relief, which is still pending, in which she sought to recover those monies from him. Her advisers then noted the case of Whiston v Whiston [1995] Fam. 198, a decision of this Court in which it was held that since bigamy was a serious crime which undermined fundamental notions of monogamous marriage, the Court would not as a matter of public policy entertain an application for financial relief under the Matrimonial Causes Act 1973 from a person who had knowingly contracted a bigamous marriage since that would allow the bigamist to profit from her crime. The Plaintiff accordingly applied, and on 16th October 1995 Singer J. ordered that:-

"There be a trial of the preliminary issue as to whether the Respondent should be debarred from continuing his claim for ancillary relief on the grounds that it is contrary to public policy."

By her points of claim the Plaintiff put her case on two bases:

(1) That the Defendant entered into the ceremony of marriage having committed perjury. Section 3 of the Perjury Act 1911 made it an offence punishable by a term of 7 years imprisonment 'for the purpose of procuring a marriage...knowingly and wilfully' to make 'a false declaration....required under any Act....relating to marriage.' In the form prescribed under the Marriage Act 1949, the Defendant had declared his marital status to be a 'bachelor' and he had also solemnly declared to be true that 'I believe there is no impediment of kindred or alliance or other lawful hindrance to the said marriage'.

(2) That at no point prior to or during the purported marriage did the Defendant advise the Plaintiff of his female gender.

His points of defence were, in summary:-

(1) A charge of perjury should be judged by the criminal standard of proof.

(2) He lacked the requisite mens rea .

(3) Alternatively, his conduct was not so serious as to debar his claim having regard particularly to:-

(a) the nature of and treatment for his personality disorder;

(b) his genuine conviction that he was of the male gender and so entitled to marry;

(c) her awareness 'throughout the marriage' that the Defendant had female external genitalia;

(d) 'given the Defendant's condition, and the Plaintiff's state of knowledge, the Defendant cannot be said to be guilty of any conscious or deliberate deception of the Plaintiff, still less a deception of sufficient seriousness to justify the Order which the Plaintiff seeks;'

(e) the invasion of his fundamental human rights to respect for his private and family life and to marry and found a family.

In giving judgment in the Plaintiff's favour, Hollis J. proceeded as follows:-

1. He held that Whiston v Whiston gave guidance to the issue he had to decide and he cited paragraphs from my judgment and from the concurring judgments of Henry and Russell L.JJ.

2. He directed himself that:

"I have to decide upon the criminal standard of proof whether he knowingly made those false declarations or any of them. In other words I have to be sure. Second I have to be satisfied that the offence is a serious once. It clearly is, in my view, if committed, as it strikes at the very heart of marriage."

3. He described as the Plaintiff's case that:-

"Throughout... she never knew the Defendant was born a female until she saw a copy of the birth certificate, or at least was informed of its existence in May 1994. She had no sexual experience before the marriage, which is accepted by the Defendant, but thought that the Defendant either had a very small penis or that it was deformed in some way, hence the use of the prosthesis."

4. He resolved the several issues about the extent of her knowledge and the conflict of evidence about sexual matters in this way:-

(a) As to their sexual relationship before the ceremony of marriage, it was common ground that the Plaintiff was sexually inexperienced and that they had started a sexual relationship by January 1977 and had started to live together in about March 1977. He recited the Defendant's evidence set out in his statement that:-

"I took the (Plaintiff) to (Lancashire) before we married and introduced her to my parents and sister. They said nothing to her about my operation. They asked me whether I had told the Respondent; I said that I had not, but would tell her....We had sexual relations before our marriage. The question of my gender did not seem important to me and I never told her about it. I accept now that I should have done".

(b) As to his false penis, the Defendant asserted in his statement that on an occasion a few months before the marriage, the Plaintiff took him to a sex shop in Soho where she insisted he buy a penis extension which he later used with his artificial penis. The Judge found:-

"The Plaintiff professes not to remember any such occasion but, quite frankly, I did not believe her about that. I think there was such an occasion. That (extension), however, as I see it was simply purchased in order to better the Defendant's sexual performance. In fact it was attached to the false penis but I am not entirely sure that the Plaintiff was aware of that fact."

The Plaintiff asserted in her statement that she had absolutely no reason to believe that the Defendant was using a sexual aid until 1981 when she found an artificial penis in his sock draw and challenged him about it. He said that he had used it as a sexual aid with his previous partner but that he had not used it with her. She asked him to dispose of it and he said that he would. She found it again another time under the mattress and soon realised he was using it during their intercourse. It was then that she then presumed that he was deformed or extremely small. He would not discuss the matter with her and their sex life became practically non-existent as she would often refuse him or make an excuse knowing he would be using the false penis with her. Thereafter sexual relations only took place perhaps twice a year. As to that the Judge found:

"The Defendant does not agree, but I am inclined to think that the Plaintiff was correct concerning that."

(c) As to the alleged discovery by the Plaintiff of the Defendant's vagina, the Defendant said in his first written statement:

"On one occasion, the (Plaintiff) touched me between my legs and said: "Do you want to talk about this?" The (Plaintiff) made it plain that she wanted to discuss my sex, but I made it equally plain that I did not. Although we continued to enjoy regular sexual intercourse thereafter, the subject was not raised again with me, my parents or my sister until the marriage began to break down some 16 years later. In so far as I know, no one ever told the Respondent that I had been born female."

In his later statement with reference to the Plaintiff's 'discovery of my gender', he said:-

"The incident happened at my parent's house in the Autumn of 1977. (The Plaintiff) put her fingers between my legs and tried to press them inside me. I said: "Don't do that". She took her hand away and said: "Do you want to talk about it?" I said: "No". Nothing more was said. (The Plaintiff's) denial of this incident confirms to me that (the Plaintiff) knew that I had female genitalia."

The Judge dealt with this incident in two passages in his judgment. At page 9 he said:

"In about November 1977" (which it must be noted is after the ceremony of marriage) "when they were living with or visiting temporarily the Defendant's mother or parents, there was an incident in which the Defendant says (when in the course of some form of love-play) that the Plaintiff discovered that he (the Defendant) in fact had a vagina. The Plaintiff denies that. I think no doubt there was some sort of incident because it was referred to many years later in a letter which I will deal with in due course, but I do not think, whatever she discovered, that she became aware then or indeed at any time until very much later, that the Defendant was indeed a female."

At page 19 the Judge said:

"It is perfectly true that the Plaintiff should have been put on her guard early in the marriage, at least when the Defendant says that she discovered he had a vagina. As I have said, I do not think she did discover that, but that there was some incident I have little doubt because the defendant wrote a letter at some stage in 1994 to the Plaintiff:-

'I am still the same person that I was when you loved me, but now that you do not, I am a different person in your eyes. You had the chance to get out of this relationship 16 years ago when this came up at my mother's but you loved me and chose to stand by me. I am still Mike; I am still that person.'

As I said therefore, something obviously did happen, I think, but not to the extent that the Defendant says and in any event he admits that he refused to discuss it."

(d) As to the 1990 row, the Judge held:-

"It is also alleged that in 1990 (and admitted by the Plaintiff), during the course of another quarrel, that she had said to the Defendant, "I am not into women", or words to that effect. She says, and I accept, that that did not mean that she knew he was a woman, in fact, but that he did not act like a real man sexually".

(e) As to the 22nd May 1994 row, the issue was whether or not the Plaintiff was ascribing their poor sex life to the fact, as the Defendant contended, that he was not a man, as opposed to the fact, as the Plaintiff contended, that he was not a real man. The Judge found:-

"I do not believe that on that occasion, whatever she said she was indicating, that she knew that he was in fact a woman".

(f) Generally as to their sex life,the judge rejected the Defendant's assertion that 'on several occasions,the Plaintiff asked for oral sex and put the artificial penis in her mouth.' He did, however, find that:-

"She should of course have been put on her guard, put on suspicion, by (the realisation that the Defendant was using a prosthesis to stimulate her) but clearly she was in love with the man. He says there were occasions when she saw him naked; she says there were not and that whenever she saw him either on the lavatory or coming out of the shower he would either, so far as the lavatory was concerned, have clothing on and he would come out of the shower backwards or half backwards. I have no doubt at all that the Defendant himself was very coy about exposing himself to the Plaintiff. The list goes on and on about matters that should have caused the Plaintiff to suspect that something at any rate was wrong and they are fully set out in (Counsel's) full skeleton written argument. I do not propose to repeat them here because Dr Zeitlin in the Children Act proceedings deals with the situation as he perceived it... He says:

'It is my opinion that it is quite possible psychologically that (the Plaintiff) accepted (the Defendant) as male even though the evidence was there to indicate otherwise. Having entered into a marriage in which there was a physical relationship it is probable that she would see both what she wanted to see and she expected. It would require a very difficult shift in perception to regard her partner as being physiologically female'..."

Dr De Silva, a Clinical Psychologist for over 20 years, reported:-

"It is my opinion that the Plaintiff was not aware of (the Defendant's) true gender at the time of the marriage and that she was not aware of the latter's true gender during the period in which they were married."

I accept the opinion of these two doctors."

(5) As to the Plaintiff's knowledge and participation, the learned Judge referred to passages in the Official Solicitor's Report prepared for the Children Act proceedings. In the first interview with the Defendant:-

"(The Defendant) acknowledged that at the time of his marriage to (the Plaintiff),his own family knew about his status and no one had told her. I asked why they had not told her and (the Defendant) said that he had told his family that although he had not told (the Plaintiff) about his gender, he would do so. He conceded that it was unarguable that from the start the marriage was based on that profound deception and that his parents, sister and her husband had known about his gender but had not told the mother."

In his second Report the Official Solicitor recorded that:-

"When I commented that she would not have married him he answered that she may have done."

The Judge found:-

"If the Plaintiff had known the Defendant's true gender I do not think that she would have 'married' him, although she might well have continued to live with him."

(6) As to the Defendant's knowledge and belief, the Judge referred again to the Official Solicitor's Report and to these passages:-

"(The Defendant) said that he was told that if he completed the entire treatment he would then be able to marry. He had gone through the hormonal change, etc. and wanted to get on with the rest of his life. He recognised that he should have completed the treatment and that it was the worst thing he ever did in his life not to do so."

In his second Report the Official Solicitor recorded that the Defendant claimed to have been told by the Psychiatrist in 1972 that he would be able to marry and that it was set out in the letter dated 19th October 1973. In fact that letter from Dr Fleming states:-

"The patient....hopes to marry once her name has been changed through the appropriate department."

The Judge held:-

"There were certainly references to (the Defendant's) wanting to marry but certainly no reference in the letter to his having been advised that he could legally do so......There is not a word there (in the Official Solicitor's Report) of the Defendant's believing he was a man and was able legally to marry a woman - not a word of it. As I have indicated, he almost collapsed when his birth certificate was produced in Court on 26th May 1994. It is perfectly true that the Official Solicitor's representative was

interviewing the Defendant concerning the children and he (the Defendant) was under great stress. But I have no doubt that that account is very much nearer the truth than his subsequent evidence on the issue, namely that he believed he could marry a woman in England.... Even on his own case, as explained to the Official Solicitor's representative, the Defendant could not have believed he could validly marry a woman because he had not completed the treatment by having an operation to create a false penis.... That is apparently what he was saying, that he was told that if he had completed the three stages of treatment (that is, the hormonal treatment, the removal of the female breasts and the third stage, the phallic operation) then he says he would be able to marry but he did not complete the third phrase so he could not have believed that he could validly marry."

(7) In arriving at his conclusion, the Judge referred to the Official Solicitor's assessment that:-

"It is not disputed that (the Defendant) deceived the (Plaintiff) as to his gender at the outset of their relationship. He entered into a ceremony of marriage with her, and his parents, aware of his gender, did nothing to stop it....It has to be stated that the deception perpetrated at the time of the marriage was a profound a betrayal of trust between two people as can be imagined."

The Judge held:

"I agree with that assessment and would only add that the Defendant told me when pressed, either by his mother or sister, he told her untruthfully that he had told the Plaintiff at some stage that he was born female but that of course was entirely untrue. I find, applying the criminal standard of proof, that the Defendant knew perfectly well that there was a lawful hinderance to his validly marrying the Plaintiff and that he committed a most serious offence."

The Judge then dealt with the mitigation of the seriousness of those matters referring to the argument that the Plaintiff's conduct in some way mitigated the Defendant's deception and his offence. He held:-

"I do not in fact agree because the damage was done by the Defendant in allowing the marriage to go ahead."

He expressed:-

"some disquiet as to dismissing the Defendant's application ... mainly on the ground of practical convenience" (namely that the Plaintiff was still pursuing her claim which he could still oppose and which would have to be heard with any declaration the Defendant might seek of his interest in the matrimonial home). "Furthermore, such a decision would tend to restrict applications for financial relief in the case of void marriages to innocent parties, which is not what the statute says. Apart from that latter consideration, those considerations were not dealt with in Whiston because it does not appear that the husband in that case was making any claim against the wife. However the Plaintiff has proved to my satisfaction that the Defendant has committed a serious crime against her. As a result the parties lived together as unmarried co-habitees for some 16 or 17 years. Thus any claims the Defendant may have against the Plaintiff should be limited, in my opinion, to such claims as an unmarried co-habitee would have. I shall, therefore, for those reasons, dismiss the Defendants claims under the Matrimonial Causes Act 1973 as amended."

In summary, therefore, the judge found:-

1. The defendant was guilty of perjury in respect of his false belief in there being no lawful hindrance to the marriage. He made no finding in respect of his being a bachelor.

2. The offence was serious.

3. The seriousness was its striking at the heart of marriage.

4. At the time of the ceremony and until discovery of the birth certificate, the Plaintiff did not know the Defendant was a woman.

5. She would not have married him had she known the truth.

6. She had been deliberately and profoundly deceived.

7. The decision in Whiston applied; so the Plaintiff succeeded.

The Defendant submits that two points arise on the appeal: firstly, that there was no sufficient evidence to support the finding that he had the requisite guilty knowledge to justify a conviction of perjury, having regard in particular to:

(1) The nature of the personality disorder which induced a self-perception and inner conviction of his maleness.

(2) The confusing state of the law regarding transsexuals.

(3) Dr Fleming's advice as set out in the letter of 19th October 1973.

(4) The inadmissibility or unreliability of the Official Solicitor's notes.

Secondly the Defendant submits that the learned Judge erred in finding that the Defendant's conduct was sufficiently culpable as to fall within the principle of public policy which prevents a person who is guilty of a serious crime from benefiting from his offence by application of the maxim ex turpi causa non oritur actio . In my judgment, closer analysis of the second ground reveals two quite separate issues:

(a) if perjury was committed, was the crime so serious taking all the aggravating and mitigating circumstances into account that public policy demands that he should not reap benefit from it;

(b) irrespective of whether or not a crime was committed, is the claim to be barred by some other and more general application of public policy that ex turpi causa non oritur actio ?

In deference to Mr Emmerson's sustained and interesting submissions on behalf of the Applicant on the position and the plight of transsexuals, it is also useful to deal with the comparative law aspects and medical matters to see to what extent they impinge upon matters of public policy and/or mens rea .

It seems to me, therefore, that the following questions need to be addressed:-

1. Transsexuals and the matrimonial law.

2. What is the medical condition of transsexualism and what was its affect on the Defendant's state of mind;

3. Was the crime of perjury committed by the Defendant?

4. What was the gravity of his offence and of his conduct generally?

5. Does perjury debar a claim for ancillary relief on public policy grounds?

6. Does a wider rule of public policy apply to debar the claim in limine ?

7. Should the claim be dismissed in the exercise of the court's wide statutory discretion under section 25 of the Matrimonial Causes Act 1973?

I

The landmark decision was Corbett v Corbett (orse. Ashley ) [1971] P.83. It was, and remains, the sensational case of the day, judgment being given February 1970, some three and a half years before Dr Fleming wrote his letter of 19th October 1973. It would be a surprise if he, a specialist in this field, were unaware of the implications of the case for those whom he was treating. To the knowledge of the Petitioner in that case, the Respondent, April Ashley, had been born a man but had undergone a 'sex-change operation', now more usually referred to as a 'gender reassignment operation', by which the external male sexual organs were removed and an artificial vagina created. Thereafter April Ashley lived as a woman capable of having, and in fact having sexual intercourse. On Mr Corbett's application to annul their marriage, Ormrod J. held, inter alia , that because marriage is essentially a union between a man and a woman, the relationship depended on sex and not on gender; that the only criteria for assessing the sexual condition of an individual were firstly the chromosomal factors (XY chromosomes for a male child, XX for a female child), secondly the gonadal factors (presence or absence of testes or ovaries), and thirdly the genital factors (including internal sex organs). If those three factors were congruent, that would determine the question of sex for the purpose of marriage and any psychological factors and operative interventions were to be ignored. It is interesting to note that Mr Corbett's counsel sought to persuade the court to make a declaration under RSC Ord.15, rather than the usual decree of nullity. Ormrod J. observed:-

"The importance of this distinction is, of course, that on a decree of nullity, the court has the power to entertain an application for ancillary relief whereas if a declaration order is made, there is not such power."

Because a matrimonial relationship was a legal impossibility at all times and in all circumstances, Ormrod J. had considerable sympathy with the Petitioner's submission that the ceremony of marriage was in fact if not in intention only a sham and the resulting 'marriage' not merely void but also meretricious, but he held that as the ecclesiastical courts did in fact grant declaratory sentences in cases of meretricious marriages, there was no discretion to withhold any decree of nullity.

This decision has held sway in this country ever since. It has been applied here to the criminal law: see R v Tan [1983] 1 Q.B. 1053 where the Court of Appeal rejected the submission that if a person had become philosophically or psychologically or socially female, that person should be held not to be a man. Parker J. held that:-

"Both common sense and desirability of certainty and consistency demand that the decision in Corbett v Corbett should apply for the purpose not only of marriage, but also for a charge under Section 30 of the Sexual Offences Act 1956 or Section 5 of the Sexual Offences Act 1967."

The opposite view has, however, been taken by the majority of the New South Wales Court of Criminal Appeal: see R v Harris & McGuinness [1988] 17 NSW LR.158. Corbett has also been followed in South Africa: see W v W [1976] 2 WLD 308.

As things stand at this moment, the law as stated in Corbett has escaped the censure of the European Court of Human Rights, but counsel has argued that strong winds of change are blowing. In Rees v United Kingdom [1984] 7 EHRR 429, the applicant was a female to male transsexual who, like the Defendant, had undergone a bilateral mastectomy and considered himself to be and was socially accepted as a man. He complained that the refusal to amend his birth certificate was a breach of his right to respect for his private and family life, contrary to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms because the certificate made manifest the discrepancy between his apparent and his legal sex, causing him embarrassment and humiliation whenever social practices required its production. The Court held by a majority of 12 to 3 that there was little common ground between the Contracting States and that, generally speaking, the law appeared to be in a transitional state. Accordingly it was an area in which Contracting Parties enjoyed a wide margin of appreciation and it could not be said that the United Kingdom had not struck the requisite balance. The Applicant also alleged that because he could not marry a woman, there was a breach of Article 12 providing that:-

"Men and women of marriageable age have the right to marry and to found a family according to the national laws governing this right".

On this point, the decision was unanimous. It was:-

"49. In the court's opinion, the right to marry guaranteed by Art.12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the article which makes it clear that Art.12 is mainly concerned to protect marriage as the basis of the family.

50. Furthermore, Art.12 lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired. However, the legal impediment in the United Kingdom on marriage of persons who are not of opposite biological sex cannot be said to have an effect of this kind.

51. There is accordingly no violation in the instant case of Art.12 of the Convention."

In Cossey v United Kingdom [1990] 13 EHRR 622, similar issues arose in the case of a male to female transsexual who had undergone full gender reassignment surgery. She wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary Assembly of the Council of Europe on 29th September 1989 - both of which sought the encourage the harmonisation of laws and practices in this field - there remained the same diversity of practice as obtained at the time of the Rees judgment. Accordingly there was still little common ground between the Contracting States in an area in which they enjoyed a wide margin of appreciation. On the alleged violation of Article 8 it was held:-

"It cannot be said that a departure from the court's earlier decision is warranted in order to ensure that the interpretation of Art.8 on this point remains in line with present-day conditions."

As to the alleged violation of Art.12 it was held:-

"45. As to the Applicant's inability to marry a woman, this does not stem from any legal impediment and, in this respect, it cannot be said that the right to marry has been impaired as a consequence of the provisions of domestic law. As to her inability to marry a man, the criteria adopted by English law are in this respect in conformity with the concept of marriage to which the right guaranteed by Art.12 refers.

46. Although some contracting states would now regard as valid a marriage between a person in Miss Cossey's situation and a man, the developments which have occurred to date....cannot be said to be evidence of any general abandonment of the traditional concept of marriage. In these circumstances, the court does not consider that it is open to take a new approach to the interpretation of Art.12 on the point in issue. It finds furthermore that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person's sex for the purpose of marriage, this being a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry."

The Court found by a majority of 14 to 4 that there was no violation of Art.12.

One should not ignore the fact that in a subsequent case - B v France [1992] 10 BLMR 75 - France was held to be in violation of Art 8 of the Convention and, justifying the decision to distinguish Rees and Cossey, the court explained that science had progressed, that attitudes had changed and that increasing importance was attached to the problem of transsexualism. In the cases of Kristina Sheffield and Rachael Horsham fresh challenges have been mounted against the United Kingdom once more for violation of Art. 8 and Art. 12. They submitted that legal, societal and scientific developments required that the previous case law of the court should be re-examined. They referred in particular to new scientific research into the brain structure of transsexual persons. Their submissions persuaded the Commission to declare on 19th January 1996 that their applications were admissible as raising "serious and complex issues of law and fact under the Convention." So far as I know, the Court has not yet ruled on those applications.

Mr Emmerson's careful research has also shown the developments elsewhere. He tells us that transsexuals have the right to marry in Sweden, Germany, Italy and the Netherlands, in certain of the United States of America (see M.T. v J.T. [1976] 355 A2d 204), in Australia, and in New Zealand (see M v M [1991] 8 FRNZ 209, a decision of the Family Court, and M v M , a Supreme Court decision of Ellis J. on 30th May 1991).

In the American case of M.T. v J.T. , in the Superior Court of New Jersey, Appellate Division, Corbett was not followed because the expert evidence given to the American Court impelled the conclusion that, for marital purposes, if the anatomical or genital features of a genuine transsexual are made to conform to the person's gender, psyche or psychological sex, then identity by sex must be governed by the conference of those standards. The conclusion was expressed in these terms:-

"It has been established that an individual suffering from the condition of transsexualism is one with a disparity between his or her genitalia or anatomical sex and his or her gender, that is, the individual's strong and consistent emotional and psychological sense of sexual being. A transsexual in a proper case can be treated medically by certain supportive measures and through surgery to remove and replace existing genitalia with sex organs which coincide with the person's gender. If such sex reassignment surgery is successful and a post-operative transsexual is, by virtue of medical treatment, thereby possessed of the full capacity to function sexually as a male or female, as the case may be, we perceive no legal barrier, cognisable social taboo, or reason grounded in public policy to prevent that person's identification at least for purposes of marriage to the sex finally indicated...In ruling (that the Plaintiff had the capacity to enter into a valid marriage) we do no more than give legal effect to a fait accompli based on medical judgment and action which are irreversible. Such recognition will promote the individual's quest for inner peace and personal happiness, while in no way deserving any societal interest, principle of public order or precept of morality."

The court accordingly upheld the decision of the court below finding that the marriage was a valid one and that absent fraud (my emphasis), the husband had a legal obligation to support the Plaintiff as his wife (again my emphasis). There was no fraud in that case because the Defendant knew of the Plaintiff's condition and co-operated in her sex reassignment surgery before their marriage which was subsequently consummated by sexual intercourse.

In M v M (1991) 8 FRNZ 209 in the New Zealand Family Court, Judge Aubin held that the applicant's "core identity" was that of a woman and as her body had been brought into harmony with her psychological sex, he inclined to the view that "however elusive the definition of "woman" may be, the applicant came within it for the purpose of and at the time of the ceremony of marriage" which he declared to be a valid one. Mr Emmerson has helpfully supplied us with a copy of the judgment of Ellis J. in the Supreme Court which declared that for the purposes of the New Zealand Marriage Act 1955 where a person has undergone surgical and medical procedures that have effectively given that person the physical conformation of a person of a specified sex, there is no lawful impediment to that person marrying as a person of that sex. Ellis J. held:-

"Some persons have a compelling desire to be recognised and be able to behave as persons of the opposite sex. If society allows such person to undergo therapy and surgery in order to fulfil that desire, then it ought also to allow such persons to function as fully as possible in their reassigned sex, and this must include the capacity to marry. Where two persons present themselves as having the apparent genitals of a man and a woman, they should not have to establish that each can function sexually.

Once a transsexual has undergone surgery, he or she is no longer able to operate in his or her original sex. A male to female transsexual will have had the penis and testes removed, and have had a vagina-like cavity constructed, and possible breast implants, and can never appear unclothed as a male, or enter into a sexual relationship as a male, or procreate. A female to male transsexual will have had the uterus and ovaries and breast removed, have a beard growth, a deeper voice, and possibly a constructed penis and can no longer appear unclothed as a woman, or enter into a sexual relationship as a woman or procreate. There is no social advantage in the law not recognising the validity of the marriage of a transsexual in the sex of reassignment. It would merely confirm the factual reality.

If the law insists that genetic sex is the pre-determinant for entry into a valid marriage, then a male to female transsexual can contract a valid marriage with a woman and a female to male transsexual can contract a valid marriage to a man. To all outward appearances, such would be same sex marriages. ... I can see no socially adverse effects from allowing such transsexuals to marry in their adopted sex, I cannot see any harm to others, children in particular, that is not properly proscribed and manageable in accordance with the existing framework of the law."

Hollis J. did not find this "persuasive authority." For my part, I find myself unable lightly to dismiss it. Taken with the new insight into the aetiology of transsexualism, it may be that Corbett would bear re-examination at some appropriate time. For present purposes, it should, however, be stressed that the judge's reasoning, and the appended submissions of counsel incorporated into the judgment, make clear that the declaration of validity will only apply in a case where there has been 'physical conformation' to the desired sex by full reconstructive surgery, including, in the case of a female to male transsexual, surgical construction of a penis. For that reason, that decision does not assist the Defendant.

Although Mr Emmerson has directed our attention to these cases, he has not suggested that they are applicable to the facts of this case, nor has he challenged the correctness of the decision in Corbett, assuming even that it was open to him to do so. I have been very conscious that the length of time spend in the review of the cases has been wholly disproportionate to the benefit obtained from them and I have been tempted to say, like my Lords, that consideration of them is strictly unnecessary for the purpose of this judgment. I feel, however, that the decision we have to take on public policy grounds on an issue as sensitive as this is, justifies the review. Our perceptions of public policy must at least be tested against perceptions elsewhere even if, in the end result, as Lord Simon of Glaisdale remarked in Vervaeke v Smith [1983] 1 A.C. 145, 164G:-

"There appears to be no inherent reason why, giving every weight to the international spirit of the conflict of laws, we should surrender our own policy to that of any foreign society."

I turn from Mr Emmerson's comparative law review to other aspects of the matrimonial law relating to nullity and 'marriages' of transsexuals for which I have largely depended on my own researches.

Nullity, ancillary relief and single-sex 'marriages '

So far as I am aware the Ecclesiastical Court had no power to secure sums of money to the wife or to order payment of maintenance, though they had power to order alimony pending suit: see, for example, Bateman v Bateman (1898) 78 L.T. 472. Powers to order early forms of ancillary relief seem first to have been given by the Matrimonial Causes Act 1907. Sir Gorell Barnes, P., observed in the course of argument in Dunbar (otherwise White) -v- Dunbar [1909] P.90-91, a non-consummation case, that:-

"The object of that Act, so far as nullity suits are concerned, was to remedy a defect that previously existed. In some cases of nullity, for instance, a husband or wife of one of the parties turned up after a number of years, and there was no power, in the absence of a settlement, to do anything for the woman who had believed herself a wife, and perhaps had children, and who might be left destitute. There may, however, be a great distinction between one case and another."

There are, in those observations, already the seeds for the view that the innocence of the wife is a pre-requisite for her claim. That the court had a wide discretion was made plain in Dunbar -v- Dunbar itself because, as the President said, at p. 92:-

"Each case must depend on its own merits, and the court must be guided by the facts of the particular case before it."

In Gardiner (otherwise Phillips) -v- Gardiner (1920) 36 TLR 294, an incapacity case, Sir Henry Duke P. said:-

"Every case of this kind must be decided on its own facts, and an appeal for permanent maintenance after a decree of nullity is not an appeal to a set of fixed principles, but one to the sense of propriety and moral justice of the court."

A suggestion that the Act of 1907 did not apply to void marriages was rejected in Ramsey v Ramsey (otherwise Beer ) (1913) 108 L.T. 382, a bigamy case where the parties had gone through the ceremony of marriage honestly believing they were both free to marry. Bargrave Deane J. said:-

"It is quite clear that the Matrimonial Causes Act 1907 gives me power to grant maintenance, if thought desirable, in all suits for nullity of marriage. I cannot read into the Act any proviso concerning marriages void ab initio . This case comes within the Act..."

Until the Matrimonial Proceedings and Property Act 1970, only the wife had a claim for maintenance against the husband but this Act gave equal right to both parties to apply for an expanded form of ancillary relief following a decree either of divorce or of nullity. As the provisions are now set out, section 23 of the Matrimonial Causes Act 1973 provides:-

"(1) On granting a decree of divorce, a decree of nullity of marriage ..., the court may make any one or more of the following orders, that is to say-

(a) ... periodical payments...

(c) ... lump sum..."

Section 24 confers the power to make transfer of property orders and other property adjustment orders. Section 25 provides for the matters to which the court is to have regard in deciding how to exercise those powers:-

"(1) It shall be the duty of the court in deciding whether to exercise its powers ... and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare which a minor of any child...

(2) ... the court shall in particular have regard to...

(a) the income...(etc.)

(b) the financial needs...(etc.)

(c) the standard of living...

(d) the age of each party and the duration of the marriage

(e) any disability...

(f) the contributions...made...to the welfare of the family

(g) the conduct of each...if that conduct is such that ...it would be inequitable to disregard it

(h) (loss of) any benefit (for example, a pension)"

So far as I am aware the first case where a marriage was annulled as a void marriage because the parties proved to be of the same sex was Talbot v Talbot (1967) 111 Sol. J. 213, which like this case, was one where the marriage was celebrated by two women. The report is very short, recording only that:-

"Ormrod J. said that there was plainly no marriage and pronounced a decree nisi (of nullity) saying that the decree could be made absolute forthwith."

Corbett followed in 1970. The Law Commission were at that time considering the law relating to nullity. In Law Com. no. 33: Report on Nullity of Marriage, they concluded:-

"32. We have not thought it necessary to postpone the submission of this Report until we could undertake a further round of consultation on whether this ground of nullity should be retained. The situation is one which, happily, will arise only very rarely. And the question involved is an issue of social policy on which Parliament will be the judge. In the draft Bill in Appendix A to this Report we have not included it as a ground for nullity since, on the whole, it is our personal view that matrimonial relief, with the possibility of granting financial provision, is not appropriate... We appreciate, however, that there may be the rare case in which one party has some of the sexual characteristics of both male and female and in which there may be genuine doubt which characteristics predominate or, indeed, in which one believed at the time of the marriage that he or she was of the opposite sex. It may be thought that in these tragic cases the court should be empowered to grant the normal range of financial provision and that the courts can be relied upon to distinguish cases of this sort, where such relief is appropriate, from those in which it is not. If this view is taken by Parliament clause 1 of the Draft Bill appended to this Report will require amendment."

That is exactly what happened. The amendment was moved by Mr Alexander Lyon and won the support of the Attorney General and the Solicitor General. See, for its interest only, not as an aid to construction, Hansard 2nd April 1971, paragraphs 1827 - 1854. As a result nullity was added to the list of grounds upon which marriage could be declared null and void: see section 1(c) of the Nullity of Marriage Act 1971, which is now replaced by section 11 (c) of the Matrimonial Causes Act 1973, providing as a ground on which a marriage shall be void "that the parties are not respectively male and female".

It is suggested that the Act has made a subtle but perhaps important change to the terminology. What governed Ormrod J's decision in Corbett, based as it was on ecclesiastical principles, was whether the parties were 'a man and a woman.' It may be - but I express no view about it - that the choice of the choice of the words 'male and female' has left the way open for a future court, relying on the developments of medical knowledge, to place greater emphasis on gender than on sex in deciding whether a person is to be regarded as male or female. There is a body of very respectable academic opinion making that point: see, for example, Cretney and Masson, 'Principles of Family Law', 5th Edition, 46-48; S. Poulter, 'The Definition of Marriage in English Law', (1979) 42 MLR 409, 421-425; and A. Bradney, 'Transsexuals and the Law', 1987 Fam.Law.350.

It is, however, neither necessary nor appropriate in this case to rule or even to speculate whether Corbett remains good law. Consequently, the essential facts upon which this judgment must rest are:

(1) the purported 'marriage' between the Plaintiff and the Defendant has been declared null and void. The Defendant submitted to that decree and does not challenge it in this court.

(2) Accordingly, this court must proceed on the basis that in law there never was a marriage between the Plaintiff and the Defendant. Such a "marriage" was and is a legal impossibility, and it was and it is a meretricious not a matrimonial union.

II

The European Court of Human Rights in Rees v United Kingdom adopted this definition:-

"The term 'transsexual' is usually applied to those who, whilst belonging physically to one sex, feel convinced that they belong to the other; they often seek to achieve a more integrated, unambiguous identity by undergoing medical treatment and surgical operations to adapt their physical characteristics to their psychological nature. Transsexuals who have been operated upon thus form a fairly well-defined and identifiable group."

In adopting recommendation 1117 the Parliamentary Assembly of the Council of Europe considered that transsexualism:-

"is a syndrome characterised by a dual personality, one physical the other psychological, together with such a profound conviction of belonging to the other sex that the transsexual person is prompted to ask for the corresponding bodily 'correction' to be made."

At the XXIIIrd Colloquy on European Law in April l993, the European Committee on Legal Co-operation at the Council of Europe approved a Paper by Professor Dr. Gooren on the Biological Aspects of Transsexualism and their Relevance to its Legal Aspects. He explained:-

"It has become clear that the differentiation process of becoming a man or a woman is a multi-step process with for each step a window of time, a critical phase. Once this phase has passed there is no backtracking. With the fusion of an ovum and a sperm, the chromosomal pattern becomes established....The differentiation of the gonads takes place in the human foetus between 5-7 weeks of pregnancy....When the gonads have become either testes or ovaries, the next step of the differentiation process is the formation of the internal genitalia. The foetal testis becomes endocrinologically active and secretes testosterone...The following step is the formation of the external genitalia, obeying the same paradigm: male external genitalia in the presence of testosterone and female genitalia in the absence of testosterone...The decision of sex assignment is in modern medicine primarily guided by the nature of the external genitalia...The demonstrable sex differences in the brain become only manifest by the age of 3-4 years postnatally...Upon examination of a very limited number of male to female transsexuals post mortem, their brains showed morphological differences in comparison with non-transsexual controls...The implication of the above scientific insight that the sexual differentiation of the brain occurs after birth is that assignment of a child to the male or female sex by the criterion of the external genitalia is an act of faith."

Professor Gooren was one of the authors of further recent research, a resume of which was published in November l995 in Nature, Vol.378, p.68. These studies show a female brain structure in genetically male transsexuals which supports the hypothesis that gender identity develops as a result of an interaction of the developing brain and sex hormones. The tiny region of the brain that is under scrutiny is the central sub-division of the bed nucleus of the stria terminalis. It is part of the hypothalamus which helps to keep the different systems of the body working in harmony and which is essential for sexual behaviour. This brain area is ordinarily larger in men than in women, and in transsexuals the size corresponds with the gender assumed.

Medical science has, therefore, made very considerable advances since l970 when Corbett was decided. When Ormrod J. dealt with the aetiology of transsexualism he referred at p.99H-100C to:-

"The alternative view is that there may be an organic basis for the condition. This hypothesis is based on experimental work...which suggests that the copulatory behaviour of the adult animals may be affected by the influence of certain sex hormones on particular cells in the hypothalamus... At present the application of this work to the human being is purely hypothetical and speculative... The use of such phrases as 'male or female brain' in this connection is apt to mislead owing to the ambiguity of the word 'brain'... In my judgment these theories have nothing to contribute to the solution of the present case."

Whether English law can change to match the advances in medical knowledge is not for this court to decide in this appeal. Nevertheless, in a case raising public policy issues, the view from Europe commands at least our close attention. Dr. Gooren's conclusion was:-

"On the basis of this recent neuroanatomical evidence, it is reasonable to require from the law that it makes provisions for those rare individuals in whom the formation of gender identity has not followed the course otherwise so reliably prognosticated by the external genitalia. Denial of this right is a negation of an important piece of scientific information on the process of sexual differentiation of the brain taking place after birth.....The existing law practice does justice to those newborns in whom all steps are concordant. The less fortunate citizens in whom those steps have been discordant, deserve no less".

These views were echoed in the Advocate General's advice to the European Court of Justice in P v S and Cornwall C.C . [1996] All ER (EC) 397,401. He submitted:-

"Studies relating to transsexuality have produced highly interesting results, in any event such as to refute entirely groundless old taboos and prejudices, by turning attention away from the moral dimension of the question, which is entirely reductive and at times misleading, to the strictly medical and scientific...To my mind, the law cannot cut itself off from society as it actually is, and must not fail to adjust to it as quickly as possible...In so far as the law seeks to regulate relations in society, it must...keep up with social change, and must therefore be capable of regulating new situations brought to light by social change and advances in science."

This medical evidence and the legal comment on it is relied on by Mr Emmerson, not simply to show that matters have in his submission moved on since the decision in Corbett and that the public interest has shifted with it, but also for its narrower relevance to the mens rea issue.

As to the capacity of the Defendant to form the necessary intent, he relies on the Diagnostic and Statistical Manual IV which sets out the diagnostic criteria for gender identity disorder as follows:-

"In adolescents and adults, the disturbance is manifested by symptoms such as a stated desire to be the other sex, frequent passing as the other sex, desire to live or be treated as the other sex, or the conviction that he or she has the typical feelings and reactions of the other sex."

That much was accepted by Ormrod J. in Corbett at p.98C where he said:-

"The transsexual on the other hand has an extremely powerful urge to become a member of the opposite sex to the fullest extent possible.....This goes on until they come to think of themselves as females imprisoned in male bodies or vice versa."

This was, as Dr Green described it at trial, 'the core sense of self'. Hollis J. observed that Dr Green "may indeed be correct" in his evidence suggesting that gender is determined by the brain rather than biological or other signs. Mr Emmerson has to accept that Hollis J. was clearly right to consider the medical evidence to be irrelevant to the question of capacity to marry, which was not in issue, but he argued that the judge may have failed to treat it as relevant to the issue of the Defendant's belief in relation to the charge of perjury. There is, however, no indication that this is so. Indeed, the fact that the Judge made no finding of perjury in relation to the Defendant's declared belief that he was a 'bachelor' suggests the opposite.

III

WAS THE CRIME OF PERJURY COMMITTED BY THE DEFENDANT ?

Although there has been no complaint by the Plaintiff, and the concession seems to have been made that the standard of proof is the criminal standard, this is not a correct view of the law as it has recently been settled by In re H (Minors)(Sexual Abuse: Standard of Proof) [l996] A.C. 583. In that case the House of Lords was unanimous in its opinion that the standard of proof in all civil proceedings is the ordinary civil standard of a balance of probabilities.

The offence under section 3 of the Perjury Act 1911 is that of is knowingly and wilfully making a false declaration for the purpose of procuring a marriage. In R v Ryan 10 Cr.App.R. 4, 7 it was held that:-

"Wilfully means intentionally, and intentionally means that he knew at the time of the making of the certificates that he was making false statements in relation to documents which purported to be made under the Act."

The false declaration which concerns us in this appeal is the Defendant's declaration of his belief that there was no lawful hindrance to the marriage. The issue is whether the Plaintiff established that the Defendant did not believe there was such hindrance, or putting it another way, whether he did believe that he could validly marry a woman.

The complaint is made that, in finding against the Defendant, the Judge relied heavily on the Official Solicitor's Report, which Mr Emmerson has argued was inadmissible. It is, therefore, necessary to examine how the Report came to be referred to at all.

When Singer J. gave directions for the trial of the preliminary issue, he directed that "the Children Act file be made available at the hearing." The Official Solicitor's Report (both his opinion and the attendance note of his representative's discussions with the parties) formed part of that file. There was, however, no agreement that the statements in that file should be admitted in evidence. There was no Civil Evidence Act notice given or leave granted to admit them. Strictly speaking, therefore, the contents of the Official Solicitor's Report were not evidence in the case. It could only become evidence to the extent that the Defendant accepted its accuracy. Unfortunately we do not have a transcript of his evidence. It is, however, agreed by Counsel that the evidence given by the Defendant was that he had no recollection of telling the Official Solicitor's representative, who was not called, that he thought he would be entitled to marry if he had completed the entire course of treatment and that did not reflect his understanding of the situation at the time of the marriage. Since the Plaintiff was bound by those answers, it is submitted that there was no evidence that he held that belief and so it is submitted that the Judge was wrong to conclude 'even on his own case' the Defendant could not have believed that he could validly marry a woman because he had not completed the treatment by having an operation to create a false penis. I agree with the technical criticism and the apparent failure to adhere to the strict rules of evidence. I find, however, that the criticism lacks substance because in his Affidavit in support of his defence, the Defendant stated in paragraph 10:-

"I sought assurances that I could legally lead the life of a normal male once I had completed the course of treatment "-my emphasis. "This included the right to marry and I made it clear to (Dr Fleming) that I intended to do so. I was never informed that it was illegal or that I did not have the right to live my life in my true gender."

It is, however, equally clear that the course contemplated (which included construction of a penis) was not completed and it was never suggested that advice was sought on that basis, let alone that such an assurance was received. Mr Emmerson submits that the Judge dealt very perfunctorily with Dr Fleming's letter which was the only contemporaneous evidence of what was happening. The Defendant produced this letter to support his assertion to the Official Solicitor that the psychiatrist had made 'mention of his being able to marry'. In truth the letter says nothing of the kind, a fact on which the judge relied in rejecting the Defendant's evidence. No one seems to have taken the point that the letter recounted that the Defendant 'hopes to marry once her (the Defendant's) name has been changed ' (my emphasis) and, of course, that was never done and could not be done. If that was perceived to be the condition precedent to the entitlement to marry, it was not fulfilled.

In addition, while the transcripts of evidence have not been put before us, it is necessary to have regard to the realities of the situation. The Judge had the inestimable advantage of seeing and hearing the Defendant give evidence and of observing his responses to cross-examination on his state of mind and beliefs as to his condition and right to marry. He thus had ample opportunity to form a view as to the Defendant's veracity in relation to the charges of perjury not least in the light of his psychological position spoken to by the psychiatrists.

Although criticism of the Judge's findings has properly been made to the extent that he relied on material in the Official Solicitor's report as evidence in the case, I would uphold the Judge's findings. If the matter were sent back for rehearing, I cannot see how, on a balance of probabilities, any other conclusion could be reached. I deal later with other factors which seem to me to be fatal flaws to the Defendant's credibility.

Consequently, I accept the Judge's finding that the Defendant knew there was an impediment to his marrying. He was guilty of perjury in making a false declaration that there was no lawful hindrance to his marriage to the Plaintiff.

I announce this finding with some reluctance. Condemning the Defendant as a perjurer is a grave finding and adding the stigma of criminality to his already troubled life will be a further cross for him to bear. I am not convinced that a finding of perjury is absolutely essential for the decision in the case because,for reasons I shall give, I prefer to base my conclusions on an alternative approach. Nevertheless I must still deal with the public policy issue based on perjury.

IV

AND OF HIS CONDUCT IN GENERAL ?

(a) The gravity of the offence.

In Re Hall [l914] P.1 the court rejected the submission that the degree of criminality affected the application of this rule of public policy, Hamilton L.J. saying at p.7 that:-

"The (suggested) distinction (between murder and manslaughter) seems to me to encourage what, I am sure, would be very noxious - a sentimental speculation as to the motives and degree of moral guilt of a person who has been unjustly convicted."

Public policy is not static, and if that was the view then, it is not the view now. In Hardy v Motor Insurers Bureau [1964] 2 Q.B. 745, 767/8, Diplock L.J. suggested:-

"It is well settled that if a man commits murder or committed felo de se in the days when suicide was still a crime, neither he nor his personal representatives could be entitled to reap any financial benefit from such an act: In the Estate of Crippen [1911] P 108; Beresford v. Royal Insurance Co. Ltd . [1938] A.C. 586. This was because the law recognised that, in the public interest, such acts should be deterred and moreover that it would shock the public conscience if a man could use the courts to enforce a money claim either under a contract or a will by reason of his having committed such acts...The court has to weigh the gravity of the anti-social act and the extent to which it will be encouraged by enforcing the right sought to be asserted against the social harm which will be caused if the right is not enforced."

In Gray v Barr [l971] 2 Q.B. 554 Lord Denning M.R. held at p.568 that it is necessary to consider whether the 'conduct is wilful and culpable'. Salmon L.J. pointed out at pp.580/1 that:

"Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence."

Phillimore L.J. at p.587 agreed that manslaughter varies from conduct which is almost murder to conduct which is only criminal in the technical sense.

"It would be foolish to attempt to lay down any general rules. It is wiser I think to confine decision to the facts in this case."

In R v Chief National Insurance Commissioner, ex parte Connor [l981] 1 Q.B. 758, Lord Lane C.J. following Gray v Barr , agreed that:-

"In each case it is not the label which the law applies to the crime which has been committed but the nature of the crime itself which in the end will dictate whether public policy demands the court to drive the applicant from the seat of justice. Where that line is to be drawn may be a difficult matter to decide, but what this court has to determine is whether in the present case what the applicant did was sufficient to disentitle her to her remedy."

In R v Secretary of State for the Home Department, ex parte Puttick [l981] 1 Q.B. 767 Donaldson L.J. observed at p.775 that:-

"It was well established that public policy required the courts to refuse to assist a criminal to benefit from his crime at least in serious cases."

In re H (dec'd ) [1990] 1 F.L.R. 441, 447 Peter Gibson J. also followed Gray v Barr and assessed the wrongdoer's culpability, and asked:-

"Was Mr H guilty of deliberate, intentional and unlawful violence or threats of violence?"

In the light of these authorities, I see no error in the Judge's direction to himself at the outset of his judgment:-

"I have to be satisfied that the offence is a serious one."

In my judgment, there are two aspects to this:

(i) wherein lies its seriousness? and,

(ii) is there any mitigation to excuse the conduct?

As to (i) - the nature of the seriousness - two acts of perjury were alleged. The Judge made no finding in respect of the declaration by the Defendant that he was a bachelor. Even if perjury were established in this respect, I would need to be convinced that it is a matter of such matrimonial gravity as inevitably to debar a subsequent claim for ancillary relief. I venture to think there may be many an aspiring spouse who falsely declares himself or herself a bachelor or a spinster as the case may be in order to conceal the fact of the dissolution of one or more previous marriages whether by death or divorce. It seems to me inconceivable that public policy would drive such a spouse from the judgment seat.

The false declaration of capacity to marry is on the other hand of much greater gravity because it touches upon a fundamental understanding of marriage as a union of different sexes. Consequently, and for reasons I shall develop later, I agree with the Judge's view that this offence is indeed a serious one because 'it strikes at the very heart of marriage".

The defendant's culpability is established by the finding that he knowingly and wilfully i.e. intentionally made this false declaration that there was no lawful hinderance to the marriage.

As to (ii) - mitigation - Mr Emmerson valiantly submits that the learned Judge failed to look beyond the category of the offence and failed to have proper regard to the want of or degree of moral culpability of the Defendant. Once again I see the force of his submission. The plight of the transsexual should command sympathy. The very nature of the disorder is such that to admit that there is an impediment to marriage is to deny the vital manhood in which the disorder impels him to believe. His failure to undergo 'perilous' phalloplasty surgery is understandable. One cannot, however, assess the seriousness of the offence without having some regard to the aggravating factors because it is only by looking at all the circumstances that one is able to see beneath the label and recognise the nature of the crime. If one is to see the whole picture, one cannot ignore the unchallenged finding that the effect on the Plaintiff has been catastrophic and that she has been traumatised by the experience.

It is, however, not the harm to the Plaintiff which is material, but the harm to society. Part of the rationale behind the rule is deterrence of the wrongdoing. The offence as defined in section 3 of the Perjury Act is only committed if the false declaration is made 'for the purpose of procuring a marriage.' In that sense perjury does strike at the institution of marriage, a fortiori where the false declaration relates to a quintessential element of capacity. Consequently conduct of that kind should be discouraged. The Judge was, therefore, entitled to the view that the perjury was of the gravity and seriousness which is required to bring into consideration the rule of public policy that no one should profit being taken from his crime. The more difficult question for me is whether the 'profit' does arise from the crime itself and I shall address that question shortly.

(b) As to the gravity of the defendant's conduct generally

The issues here are:

(i) whether the Defendant deceived the Plaintiff;

and also

(ii) how is the deception to be characterized?

The Judge accepted that at the time of the marriage ceremony the Plaintiff did not know that the man she was about to marry was a transsexual still with female genitalia. It was a finding open to the Judge to make. It was backed by compelling evidence. That inference can be drawn from the Defendant's own evidence irrespective of the protestations of the Plaintiff. In his first statement dealing with these matters, dated 20th July l994, he referred to the introduction of the Plaintiff to his parents and sister:

"They said nothing to her about my operation. They asked me whether I had told (the Plaintiff); I said that I had not, but would tell her....The question of my gender did not seem important to me and I never told her about it. I now accept that I should have done....So far as I know, no one ever told the Respondent that I had been born a female."

His sister agreed. She said:-

"Although (the Plaintiff) met my parents, no one mentioned that (the Defendant) was not a man. I did ask Michael whether he had told her about his gender; he said that he had."

That was a lie. I see no reason whatever to doubt the correctness of the learned Judge's finding that at the time of the ceremony the Plaintiff was not aware that the Defendant was not a man, not male. It is, in my judgment, important to concentrate attention on the time of the ceremony, because it is from that ceremony that the Defendant's right to ancillary relief springs. Events thereafter are irrelevant for present purposes. If the claim for ancillary relief is to proceed, what happened thereafter might well become material as conduct which it would be inequitable for the court to ignore.

Because of the way in which the case was conducted, the judge dealt at length with the life led by these parties after their marriage. In that respect he also found in the Plaintiff's favour and was satisfied that although she should have been and to some extent was put on her guard that all was not right, nonetheless she remained ignorant of the truth until the detail of the Defendant's birth was communicated to her. Many - and I am one of them - will find it quite astonishing that there was no single occasion in 17 years of life together when her eyes did not see, or her hands or her body feel, or her senses tell her that she was living with a man who had the genital formation of a woman, a man who did not simply have a small or deformed penis, but had no penis at all. Mr Emmerson has made a very telling attack on the credibility of the Plaintiff's case but to condescend further into the particulars of those matters is only to provide manna for the prurient and to deal with issues which are no longer material to this appeal. The Judge was correct to conclude:-

"It is argued, however, that the Plaintiff's conduct in some way mitigated the Defendant's deception of his offence. I do not in fact agree because the damage was done by the Defendant in allowing the marriage to go ahead."

The learned Judge made a further finding with which I again agree. He held:-

"If the Plaintiff had known the Defendant's true gender I do not think that she would have 'married' him ..."

That finding was no doubt made in the light of the Plaintiff's evidence contained in paragraph 6 of her Affidavit sworn in the preliminary issue:

"I am appalled by the deception which was perpetrated upon me. I cannot believe that the Defendant was prepared to stand with me in church, before God, and make no disclosure when charged by the vicar to do so and to make vows to me and allow me to make vows to him. I would never contemplate entering into such a relationship willingly. I have been devastated by the disclosure of the Defendant's true gender.....On no account could I have contemplated placing myself in this position on 7th July l977 and on no account would I have wished my parents to suffer the humiliation and distress which they would undoubtedly suffer by knowing that their daughter had entered into a ceremony of marriage with a transsexual."

The evidence is overwhelming that the Defendant was not frank and that he was not frank because he knew the Plaintiff would not accept him as her husband as he was. Why else was he concerned that the Plaintiff might discover his gender? Why else was he, as the Judge found him to have been throughout the relationship, 'very coy about exposing himself to the Plaintiff'? Why else did he not tell her of his operation when prompted by his parents and sister to do so? Why did he lie that he would do so? Why did he lie to his sister that he had done so? Why else was it (according to paragraph 13 of the Affidavit sworn in support of his defence to this preliminary issue) that:-

"For both of us (how I came to be a male with female genitalia) was an issue which could not be dealt with, in all honesty, we were frightened to discuss it. For many years our relationship functioned well and was a close and loving one but we both realised the potential for damaging that and in order to protect ourselves we did not raise it as an issue between us".

I can readily and sympathetically accept as a symptom of his disorder that he has a desire to be and to live and be treated as the other sex and has the conviction that he has the typical feelings and reactions of the other sex - I have given the emphasis to these words - but I find it difficult to accept that the psychological mechanism of denial can operate so effectively that the Defendant could know (again I add the emphasis to draw the distinction between desire and knowledge) that he was, to use the President's words again, "a full-blooded man". There is a contradiction in the way his case is put for he asserts that the Plaintiff must have known, yet somehow he did himself not know, that he was not a man. Every day of his life his anatomy denied him the complete fulfilment of his desire. I cannot accept that in his heart of hearts he did not know that his body did not conform with what he desired for it.

It seems to me there can be only one sensible and realistic answer, namely that the Defendant was concerned at all times to conceal from the Plaintiff what he knew she would be upset to discover and unable to accept, that she was married to someone who was not a man.

The judge accepted that the Defendant's deception of the Plaintiff was 'as profound a betrayal of trust between two people as can be imagined.' He concluded that:-

"The Plaintiff has proved to my satisfaction that the Defendant has committed a serious crime against her."

It seems to me, to answer the first question I posed, that the conclusion is unassailable that the Defendant was guilty of a gross deception of the Plaintiff. I must return to the characterization of this deception later.

V

ON PUBLIC POLICY GROUNDS ?

(a) The rule of public policy

The classic exposition is by Fry L.J. in Cleaver v Mutual Reserve Fund Life Association [1892] 1 Q.B. 147, 156 as follows:-

"It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person."

This rule was applied even where the right being asserted was one which derived from statute where the statutory provisions are subject to implied limitations based on principles of public policy accepted by the courts at the time when the Act is passed. As Fry L.J. held in Cleaver v Mutual Reserve Fund Life Association [1892] 1 Q.B. 147, 157:-

"In the construction of Acts of Parliament ... general words which might include cases obnoxious to this principle (of public policy) must be read and construed subject to it."

In Ex Parte Connor , Lord Lane C.J. said at p.765B:-

"The fact that there is no specific mention in the Act of disentitlement so far as the widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draughtsman realised perfectly well that he was drawing this Act against the background of the law as it stood at the time."

In Ex parte Puttick , Donaldson L.J. stated at p.773G:-

"Statutory duties which are in terms absolute may nevertheless be subject to implied limitations based upon principles of public policy accepted by the courts at the time when the Act is passed."

Staughton L.J. confirmed in R v Registrar General, ex parte Smith [1992] 2 Q.B. 393, 402 that:-

"The rule is that we must interpret Acts of Parliament as not requiring performance of duties, even when they are in terms absolute, if to do so would enable someone to benefit from his own serious crime."

In re Royce [1985] Ch. 22 that approach was applied to the Inheritance (Provision for Family and Dependants) Act 1975 and the claim of the Plaintiff relief under that act was struck out as disclosing no reasonable cause of action. Although it may be said that the decision on this point was obiter, I find the judgments, which I set out later, to be convincing and I followed them in Whiston v Whiston [1995] Fam. 198.

(b) Whiston v Whiston

There was no dispute about Mrs. Whiston being guilty of the crime of bigamy. She had the necessary mens rea . Her claim for ancillary relief under the Matrimonial Causes Act 1973 was dismissed. In that case the public policy point was taken at the hearing of her claims. It did not find favour with the District Judge who awarded her a lump sum of £25,000. The husband appealed. Thorpe J. also rejected his argument as reported at [1994] 2 F.L.R. 906. He deplored "any conclusion that curtailed or removed the judicial discretion in making financial provision post-marital breakdown" and he reduced the wife's award "to reflect the wife's misconduct" pursuant to section 25(2)(g). This decision was reversed on appeal to this court. In my judgment at p206D, I rejected the submission that there was no room for the application of this "well established principle of public policy".Then at p.207 I dealt with another point saying:-

"Thorpe J. found it unacceptable that a woman who had responsibility to bring up young children would not be able to assert claims for ancillary for herself simply because she was guilty of bigamy. I regret I take a different view. If the judge is right, a bigamist would be entitled to assert a claim for ancillary relief which she would not be entitled to make had she not practised her deception and had remained a mere cohabitee of the man with whom she was living. To my mind that distinction would be unacceptable. It seems to me that it gives scant effect to the seriousness of this offence, which is one which strikes at the heart of marriage... Where the criminal act undermines our fundamental notions of monogamous marriage I would be slow to allow a bigamist then to assert a claim, an entitlement at which she only arrives by reason of her offending... Today we have this respondent seeking to profit from the crime. Her claim derives from the crime. Without her having entered into this bigamous ceremony she would have got to the judgment seat at all..."

Henry L.J. held:-

"... had she not committed the crime she would have had no claim for financial provision under the Matrimonial Causes Act 1973 - as an unmarried cohabitee she would have had no such claim. That being so this case falls squarely within the principle that as a matter of policy the court will not lend its aid to one who, to succeed, must found her claim on a criminal offence of sufficient gravity, as this crime of bigamy in my judgment was... Neither the enactment nor the wording of the ... Act dilutes that principle as it exists in the common law and that principle is fatal to this claim."

Russell L.J. held:-

"Bigamy, as opposed to mere cohabitation, strikes at the very heart of the institution of marriage. In these circumstances, the fact that this respondent has contracted a bigamous marriage would be a necessary foundation for her claim for financial relief under the ... Act. For a litigant to have to rely upon his or her own criminal behaviour in order to get a claim on its feet is ... offensive to the public conscience and contrary to public policy. For all the reasons given by Henry and Ward L.JJ. I, too, would allow this appeal."

Some commentators seem to have been surprised by the decision. Professor Cretney ('Right and Wrong in the Court of Appeal' 1996 L.Q.R. 33) considered that the decision was:-

"...certainly defensible; and the argument that a person who commits bigamy should not be in a better position than one who refrains from going through a marriage ceremony is undoubtedly a powerful one... Yet at least one reader is left with feelings of unease about what may be thought to be the simplistic approach taken by the Court of Appeal. First, the supposed principle that a claimant is not to be allowed to benefit from his crime is arguably today more flexible than the Court of Appeal seem to allow; and it is surely regrettable that the court gave no consideration to the decision of Peter Gibson J. in Re H (dec'd) [1990] 1 F.L.R. 441."

Whether or not we had taken the very high moral ground when others might have taken a more flexible view, the Appeal Committee of the House of Lords ( Lord Goff of Chieveley, Lord Lloyd of Berwick and Lord Hoffmann) dismissed a petition by the respondent for leave to appeal. The case is binding on us and Mr Emmerson does not contend otherwise.

(c) Does this rule that no one shall be allowed

to profit from his crime apply to this perjury?

I do not as instinctively answer in the affirmative as I did in Whiston. Two matters concern me:-

(1) In that case there was a direct link between the crime and the claim. The act of bigamy was the celebration of the marriage, the annulment of which gave rise to the claim, just as, leaving the Forfeiture Act 1982 aside, murder causes the death from which the Inheritance Act claim proceeds. Here the perjury is not as directly connected. The perjury is committed by the making of the false declaration and whilst that is a pre-requisite to the marriage taking place, it still needs the subsequent ceremony to be performed. Unlike bigamy here the marriage is at one remove. It is, therefore, not without some hesitation that I come to the conclusion that the perjury is sufficiently proximate to be able to say that the defendant is seeking to profit from his crime. My reasons are:-

(i) The offence is linked to marriage by its definition: the false declaration must be made "for the purpose of procuring a marriage".

(ii) Although it is a decision of the Divisional Court and so not

binding on us, nevertheless the judgment in Puttick is very persuasive and it is not easy to see why this case should be distinguished from it. Donaldson L.J. said at p.775:-

"Bearing in mind additionally that citizenship is not only a matter of private right but also of public status and concern, in my judgment Parliament can never have intended that a woman should be entitled to claim registration as a citizen of the United Kingdom and Colonies on the basis of a marriage achieved only by the commission of serious crime. In this case Mrs Puttick's impersonation of Frau Sauerbier and the commission of the crime of perjury and forgery formed the foundation of her marriage to Robin Puttick and in my judgment disentitled her to rely upon the right which she would otherwise have to claim registration as a citizen of the United Kingdom and Colonies."

The case was cited with approval by this court in R v Registrar General, Ex parte Smith [1991] 2 Q.B. 393. Consequently I am persuaded to accept that the claim is not too remote from the crime because "the commission of the crime of perjury" also "formed the foundation" of the Defendant's marriage and has "disentitled (him) to rely on the right which (he) would otherwise have to claim" ancillary relief.

(2) I have another hesitation. Bigamy is a discrete offence but perjury may cover a wide range of false statements, some more serious than others. As already explained, I would be very disinclined to find that a false declaration of bachelorhood was so heinous as to debar a subsequent claim. Thus I accept that perjury per se does not necessarily invoke the rule and each case may have to be judged on its own facts to establish the requisite degree of seriousness. I appreciate there is, therefore, always some uncertainty as to the application of the rule, but it seems to me to present the court with no more difficult a task than has been accepted in deciding whether or not individual cases of manslaughter meet the necessary criterion of culpability. I therefore see no reason to make perjury an exception to the rule.

(d) Conclusion

Being satisfied of the Defendant's moral culpability and of the proximity of the crime and the claim, I see no escape from the conclusion that the rule of public policy does apply. Hollis J. was right to hold that it did. Whilst those conclusions might be sufficient to dismiss this appeal but I nonetheless prefer to explore whether the case can be viewed on an alternative and perhaps a wider basis. I do this partly to save the Defendant the ignominy of being branded a criminal and partly to escape any remaining discomfort in relying on perjury as the crime which invokes the ruling. This leads to the next question.

VI

THIS CLAIM BECAUSE EX TURPI CAUSA NON ORITUR ACTIO ?

The answer can be given after considering:

(1) The basis of the ex turpi principle;

(2) The object-matter of the public policy protection;

(3) The essence of marriage;

(4) Is the Defendant's conduct injurious to this notion of marriage?

(1) The basis of the ex turpi principle

In my judgment the principle hitherto under discussion that no one should benefit from his crime is a specific application of a wider principle that ex turpi causa non oritur actio . In Beresford v Royal Insurance Company Ltd [l937] 2 K.B. 194, 219 Lord Wright M.R., giving the judgment of the court with Romer and Scott L.JJ. held:-

"The principle (that the court will not allow a criminal or his representative to reap by the judgment of the court the fruits of his crime) has been applied....in many decisions dealing with varied states of fact and applications of the same or similar principle. These are all illustrations of the maxim ex turpi causa non oritur actio . The maxim itself, notwithstanding the dignity of a learned language, is, like most maxims, lacking in precise definition."

The House of Lords [l938] A.C. 586 agreed with this judgment although there was no direct assent or dissent from that particular proposition. In Hardy v Motor Insurers Bureau [l964] 2 Q.B. 747, 767 Diplock L.J. said of his proposition that all contracts to indemnify a person against a liability which he may incur by committing an intentional crime are unlawful:-

"The rule of law ... - ex turpi causa non oritur actio - is concerned not specifically with the lawfulness of contracts but generally with the enforcement of rights by the courts, whether or not such rights arise under the contract. All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right ... which is regarded by the court as sufficiently anti-social to justify the court's refusing to enforce that right."

The leading case of earlier times is Holman v Johnson [l775] 1 Cowp.341, 343 where Lord Mansfield C.J. said this:-

"The principle of public policy is this: ex dolo malo non oritur actio . No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the Plaintiff's own stating, or otherwise, the cause of action appears to arise ex turpi causa , or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is on that ground the court goes: not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff."

In Pearce v Brooks [l866] L.R. 1 Ex.213, 218 the Plaintiff failed to recover from the Defendant the charges for the hire of a brougham which he knew was to be used by her for her professional purposes of prostitution because, per Pollock C.B.:-

"The rule which is applicable is ex turpi causa non oritur actio , and whether it is an immoral or an illegal purpose in which the Plaintiff has participated, it comes equally within the terms of the maxim, and the effect is the same."

I note the shift over barely a century from "immoral purpose" to "anti-social" action which suggests that the word is to be fairly broadly interpreted. Such a broad interpretation must not, however, extend so far as it was expressed (albeit with a later qualification) by Kerr L.J. in Euro-Diam Ltd v Bathurst [l990] 1 Q.B. 1, 35C:

"It applies if in all the circumstances it would be an affront to the public conscience to grant the Plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the Plaintiff in his illegal conduct or to encourage others in similar acts."

In Tinsley v Milligan [l994] 1 A.C. 340, the House of Lords were unanimous in their view that a 'public conscience' test has no place in determining the extent to which rights created by illegal transactions should be recognised. The adoption of that test, said Lord Goff of Chieveley at p.363C:-

"would constitute a revolution in this branch of the law, under which what is in effect a discretion would become vested in the court to deal with the matter by the process of a balancing operation, in place of a system of rules, ultimately derived from the principle of public policy enunciated by Lord Mansfield C.J. in Holman v Johnson , 1 Cowp 341 which lies at the root of the law relating to claims which are, in one way or another, tainted by illegality."

At p.355C he said:-

"It is important to observe that, as Lord Mansfield made clear, the principle is not a principle of justice; it is a principle of policy, whose application is indiscriminate and so can lead to unfair consequences as between the parties to the litigation. Moreover the principle allows no room for the exercise of any discretion by the court in favour of one party or the other."

Although the power given to the Court under Section 25 of the Matrimonial Causes Act l973 gives the court the broadest discretion "in deciding whether to exercise its powers... and, if so, in what manner", we must, if we are strictly to answer the question posed in the preliminary issue, decide whether or not this claim is debarred on grounds that it is contrary to public policy.

It seems to me that the answer to the question whether the claim is tainted with turpitude depends not on whether the person against whom the claim is made will suffer disadvantage; but rather on whether there is a discernible public interest which will be damaged by the court's sanctioning the prosecution of the claim. There must be a legitimate public interest to protect. We have an established system of rules for the classification of objects of public policy protection so that the court will, for example, impeach any claim which is economically against the public interest (restraint of trade) or injurious to good government (trading with the enemy) or to the administration of justice (an example well known in matrimonial law being an agreement to oust the jurisdiction of the court to grant ancillary relief: Hyman v Hyman [l929] A.C. 601). In another category, there is a system of rules to proscribe acts injurious to morality, and, akin to that, acts injurious to marriage.

There is a public interest in marriage probably because marriage is a public act and marriage confers status which means, per Lord Simon of Glaisdale in the Ampthill Peerage Case [l977] A.C. 547, 577A:-

"the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities."

One of the peculiar rights is the right to claim ancillary relief. It is a right which is not available, or certainly not yet available - for the matter is under consideration by the Law Commission - to those of different sexes, still less to those of the same sex, who simply live and cohabit together. That the guilty bigamist should not gain advantage from the decree of nullity was, as I have already said, one of the factors which influenced the decision in Whiston v Whiston . The same applies here.

Public policy has extended its umbrella of protection to the sanctity of the marriage tie and the married state which has been held to be so fundamental that it has been regarded as morally wrong and against public policy to become engaged whilst still married - Spiers v Hunt [l908] 1 K.B. 720 and Wilson v Charnley [l908] 1 K.B. 729 (C.A.) - but not, by a majority decision, if a Decree Nisi of divorce has already been pronounced - Fender v St. John-Mildmay [l937] A.C.1. Even in the latter decision, Lord Atkin at p.16 thought:-

"There is real substance in the objection that such a promise tends to produce conduct which violates the solemn obligations of married life."

In another context, in Vervaeke v Smith [l983] 1 A.C. 145 the issue was whether a Belgian decree pronouncing void a marriage celebrated in England should be recognised here. The parties had entered into the marriage with no intention of ever living together. Relying on its notion of public policy, the Belgian Court treated that as a sham and so declared it void. The opposite view was taken here. English public policy required that the marriage be held valid here and the court so declared. An attempt was then made to obtain recognition of the Belgian nullity decree. It failed. The rule of English public policy which received the endorsement of the House of Lords was that which had been expressed by Lord Merrivale P. in Kelly (orse. Hyams) v Kelly [l932] 49 T.L.R. 99, 101 in these terms:-

"In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage law could be played with by people who thought fit to go to a Register Officer and subsequently, after some change of mind, to affirm that it was not a marriage because they did not so regard it."

Yet again, in the once well known case of Blunt v Blunt [1943] A.C. 517, 525, Viscount Simon L.C. dealing with the considerations warranting the exercise of the court's discretion in respect of a party's adultery, said:-

"I would add a fifth (consideration) of a more general character, which must, indeed, be regarded as of primary importance, namely, the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down."

If there were any doubt about whether there is a present public interest in buttressing and protecting the institution of marriage, then the recent public and Parliamentary debates about the reform of the divorce law will have dispelled all such concerns.

Thus it seems to me that the status of married persons, the sanctity of the marriage union and the institution of marriage itself are all objects of public policy requiring our protection.

(3) The essence of marriage

What then is this hallowed notion of marriage which lies at the heart of this public policy? Sir William Scott, a master of the ecclesiastical law, gave an early definition which has withstood the test of time. In Lindo v Belisario (1795) 1 Hag. Con.216,230 he said:-

"The opinions which have divided the world, or writers at least, on this subject, are, generally, two. It is held by some persons that marriage is a contract merely civil - by others, that it is a sacred, religious, and spiritual contract, and only to be so considered. The jurisdiction of the Ecclesiastical Court was founded on ideas of this last described nature; but in a more correct view of this subject, I conceive that neither of these opinions is perfectly accurate. According to juster notions of the nature of the marriage contract, it is not merely either a civil or religious contract; and, at the present time is not to be considered as originally and simply one or the other. It is a contract according to the law of nature, antecedent to civil institution, and which may take place to all intents and purposes, whenever two persons of different sexes engage, by mutual contracts, to live together."

Nearly a century later, Lord Penzance gave his classic definition in Hyde v Hyde [l866] L.R. 1. P & D 130, 133:-

"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."

Although some elements of that may have been eroded, bigamy and single sex unions remain proscribed as fundamentally abhorrent to this notion of marriage. Here the binding force of the decree of nullity declared that there was no marriage of the kind Lord Penzance had in mind, indeed it was not a marriage at all. The responsibility for that meretricious ceremony taking place at all lies solely with the Defendant and the Plaintiff is the innocent victim of his gross deception. The proper question is, however, the one which follows.

(4) Is the defendant's conduct injurious

to this notion of marriage ?

Deception per se is not the material factor. Many a deception may be practised before the exchange of the marriage promises. The deception may be big or small. Lies may be told about fortune and financial matters. A party may be deceived about matters which Ormrod J. thought were important in Corbett such as the other party's ability to have sexual intercourse and to procreate children. Matters of health may be concealed, Aids or H.I.V., for example, and the harm may be grievously compounded by thereafter consummating the marriage and transmitting a potentially lethal disease. A pregnancy per alium may be hidden. The lie may be about age or close blood relationship. In some of the examples I have given, the facts will justify a decree that the marriage was voidable or even void for want of capacity, as this one is. Yet in all of these examples I would be very slow to allow an appeal to public policy to justify striking out a claim for ancillary relief and would limit the application of this rule to bigamy and single sex 'marriages' where the claimant for relief has been guilty of deceiving the other.

My reason for this limitation is that it is only in these two instances that the deception goes to the fundamental essence of marriage. No other touches the two vital corner-stones of marriage implicit in the union of one man and one woman. To cheat in respect of either of these two basic core elements is to undermine the institution, the sanctity and status of marriage to an extent I regard as contra bonos mores .

I am very conscious of the judgments of my Lords which I have read in draft. I am very conscious of the wisdom of the views of Parke B. in Egerton v Brownlow 4 H.L.C. 484,491 for they have so often been cited with approval. Thus I remind myself that:-

"Public policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may, and does, in its ordinary sense, mean 'political expedience,' or that which is best for the common good of the community; and in that sense there may be every variety of opinion, according to education, habits, talents, and dispositions of each person, who is to decide whether an act is against public policy or not. It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors and of our existing courts, from the text writers of acknowledged authority, and upon principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion, for the advantage of the community. Some of these decisions may have no doubt been founded upon the prevailing and just opinions of the public good; for instance, the illegality of covenants in restraint of marriage or trade. They have become part of the established law, and we are therefore bound by them, but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise."

I remain satisfied that more than covenants in restraint of marriage are 'part of the established law': such restraints are, after all, but an aspect of the protection of the institution itself. Thus I consider myself not only empowered but bound to take a decision on public policy grounds.

I also remind myself at the prompting of Mr Emmerson that public policy is not static. 25 years after Corbett things may be very different. There is a discernible tendency in some jurisdictions to grant transsexuals freedom to marry in cases where their psychological sex and their anatomical sex are in harmony. I can see the strength of the argument that such a transsexual who enters into the marriage ceremony honestly believing there is no impediment to it and who then lives as man and woman with the other party, should not be debarred from relief. But that is not this case. This Defendant's body denied him the fulfilment of his desire. He knew he could not marry. He knew the Plaintiff would not marry him in the unhappily ambiguous condition to which he is condemned.

The speech of Lord Thankerton in Fender v St. John-Mildmay at p.23 instructs me that:-

"There can be little question as to the proper function of the Courts in questions of public policy. Their duty is to expound, and not to expand such a policy."

So we must reflect, not form public policy. In my judgment of present public interest, the fundamental essence of matrimony must be made inviolable, and must be buttressed by refusing to permit the Defendant's taking any advantage from the decree of nullity which has annulled this travesty of marriage.

For those reasons, I would dismiss his appeal. I go on, however, to consider shortly the final question.

VII

section 25 of the matrimonial causes act 1973 ?

I agree with my Lords that:-

(1) The language of section 25 is wide enough to embrace the conduct we all agree is thoroughly reprehensible.

(2) Were the case to be decided as an exercise of the discretion, then, notwithstanding:-

(i) the huge disparity in their respective means;

(ii) his needs for a roof over his head and some supplement to

his income commensurate with the standard of living enjoyed during the "marriage"; and,

(iii) the contribution he undoubtedly made to the welfare of the

family in that he did all that was expected of him during their 17 years together.

Nevertheless no court could in the proper exercise of the wider discretion conferred by section 25 conclude that any ancillary relief should be granted having regard to all the circumstances of the case in particular to the sustained deception of the plaintiff.

Where I differ from my Lords is in my judgment that we do not get to the stage where discretion begins to be exercised. The benefit, the enjoyment of which the defendant is to be deprived is, in my opinion, the right to apply for ancillary relief, the right, in other words, to invite the court to exercise the section 25 discretion in his favour. For reasons I have already given in paragraph 5(a) above, the Act must be construed as being subject to the public policy principle.

I cannot put it better than this court did in Re Royce (Decd ). [1985] 1 Ch. 22. There the plaintiff, who was convicted of the manslaughter of her husband with a finding of diminished responsibility, was the sole beneficiary under his will. Before the Forfeiture Act 1982 came into force, she applied for an order under the Inheritance (Provision for Family and Dependants) Act 1975 that such provision as might be just be made for her out of the estate of her deceased husband, since she was precluded by her conviction from taking any benefit under his will. On the defendant's summons, the judge ordered the plaintiff's application to be struck out as disclosing no reasonable cause of action and the appeal against that order was dismissed. To read from the headnote:-

"Since by the deceased's will reasonable financial provision would have been made for the plaintiff, her application was precluded by section 1 & 2 of the Inheritance (Provision for Family and Dependants) Act 1975 but. in any event, the rule that no one could benefit by a criminal act applied to the Act; and that, therefore, the court had no discretion to consider making an order under the terms of the Act."

The scheme of this Act runs in close parallel with the Matrimonial Causes Act 1973. Section 1 gives the entitlement to apply and defines the categories of person who may make the application. Section 2 deals with the powers of the court to make orders and the similarity with sections 23 and 24 of the 1973 Act is obvious. Section 3 regulates the manner in which the court is to exercise its discretion by reference to a number of factors which again in effect reproduces section 25 of the 1973 Act. Ackner L.J. held at p.27 H - 28 D:-

"The Act of 1975 must be taken to have been passed against the background of this well - accepted principle of public policy: see, for example, R -v- Chief National Insurance Commissioner, Ex Parte Connor [1981] Q.B. 758. As was observed by Judge O'Donoghue, it would be strange if the law were to deny the plaintiff the benefit given to her the deceased's will but were then to treat her as qualifying under the Act of 1975 and thereupon award her the whole, or some part of, the estate which public policy had denied her.

Mr Caswell submits that the Act of 1975 does not provide any right or benefit, but merely confers upon the court a discretion. In the course reading from in re Giles, (Decd ) [1972] Ch. 544, Mr Caswell quoted from the speech of Lord Atkin in Beresford -v- Royal Insurance Company Ltd [1938] A.C. 586, 599 referred by Pennycuick V.- C. in the Giles case, at p.551; "But apart from these considerations the absolute rule is that the courts will not recognise a benefit accruing to a criminal from his crime." It seems to me that the Act of 1975 conferred a benefit upon a limited class of persons to apply for an award, which it was then within the court's discretion to grant. It does not seem to me that the existence of the judicial discretion as to the amount of the award alters the fact that the statute confers a benefit, and this, in my judgment, must be taken to have been conferred subject always to the forfeiture rule."

Slade L.J. added these observations:-

"The first question raised by Mr Caswell in his submission on behalf of the plaintiff was whether, apart from the Forfeiture Act 1982, the rule of Public Policy known as the "forfiturer rule" automatically debars a person, such as the plaintiff, who has been convicted of the manslaughter of a testator, albeit with diminished responsibility, from applying for provision out of his estate under the Inheritance (Provision for Family and Dependants) Act 1975. Mr Caswell submitted that while the forfeiture rule will prevent such a person from enforcing a right which accrues to him as a direct consequence of an unlawful act of manslaughter, it does not debar him from making an application under the Act of 1975, in which he is simply invoking a discretion vested in the court by statute. If the relief is actually granted under that Act, he submits, it is not a benefit accruing to the applicant directly from his crime; it is a benefit accruing from the exercise of the court's discretion. The unlawful killing, he submits, would be merely one factor which the court would take into account in the exercise of its discretion: see Section 3 (1) (g) and (5) of the Act of 1975.

I cannot accept these submissions. The Act of 1975 must, in my opinion, have been drafted and subsequently enacted by Parliament against the background of the law as it stood in 1975, in particular the forfeiture rule which prevents a person from benefiting from the estate of a deceased person if the death has occurred as a result of his own unlawful act of manslaughter. If the Act of 1975 had conferred on the dependant of a deceased person a right to sum fixed provision from his estate, it seems quite clear that a dependant in the position of the plaintiff in the present case could have no right to apply to the court for the enforcement of that provision: compare R -v- Chief National Insurance Commissioner, Ex Parte Connor [1981] Q.B. 758. I can not see that it makes any difference that an award under the Act of 1975 is at the court's discretion. If, in passing that Act, the legislature had intended in any way to mitigate the rigours of the forfeiture rule, I do not doubt it would have expressly said so.

I therefore think that, apart from the Forfeiture Act, the plaintiff, in the present case, had no right to apply under the Act of 1975 because she had been guilty of the unlawful manslaughter of her husband; and, for my part, I think this would have been the position even if she had been left nothing by his will."

Since I am still of the view that, properly characterised, the facts of this case boil down to an attempt to gain a benefit which accrues only through wrongdoing, then, in that character, the claim is against public policy and for my part I do not shrink from so finding nor from dismissing the appeal on that basis.

LORD JUSTICE POTTER: I too would dismiss the appeal, for reasons similar to Neill LJ.

Like Ward LJ, I would not disturb the finding of Hollis J. that the appellant knowingly made a false statement to the Registrar of Marriages that he knew of no lawful hindrance to the marriage proposed between himself and the plaintiff. Although it seems to me that Mr. Emmerson is correct in submitting that, in the absence of agreement or prior order to contrary effect, the Official Solicitor´s Notes did not constitute evidence of what the appellant had told him, the history of the matter as explored in evidence and cross-examination before the Judge, the admissions of the appellant as to his suppression of the true position before marriage, and the plainly adverse view the Judge formed as to the appellant´s credit, amply justified the finding of the Judge that the appellant knowingly misstated his belief, so as to deceive the Registrar as well as the plaintiff as to his true gender.

While Mr. Emmerson has urged upon the Court at length that the nature and treatment of the appellant´s condition was such that he was convinced he was a man, despite the absence of male genitalia, it does not appear that there was any medical evidence to support the assertion that the appellant believed himself entitled to get married. Indeed, his concealment from the plaintiff of his sex at birth, his subsequent history, and the true nature of his anatomy all suggest the opposite. Accordingly, I consider that the finding the Judge made was justified and should not be disturbed. It is also plain from the Judge´s findings, as Lord Justice Ward has emphasised, that, put on a wider basis, this was a marriage procured by fraud, the perjury committed in relation to the Registrar being associated with the wider deception upon the plaintiff which the judge found to be pivotal to her consent to marry the appellant.

All that being so, the question, as framed and argued before the Judge, required him to decide whether, as on the face of it Sections 11 para (c), 23 and 24 of the Matrimonial Causes Act 1973 ("the 1973 Act") permit, the appellant should be at liberty to apply for exercise of the court´s discretion to make an order for ancillary relief in his favour, or whether, following the decision in Whiston, such application should be struck down in limine on the ground that to permit the application to proceed would be to lend the aid of the court to one whose claim was founded upon a serious criminal offence.

By Section 11(c) of the 1973 Act, a marriage is void if the parties are not respectively male and female. It is plain that the use of the word "marriage" in such a case is no more than convenient shorthand for a purported ceremony of marriage. As stated by Jackson in the Formation and Annulment of Marriage (2nd Ed)

"If two persons of the same sex contrive to go through a ceremony of marriage, the ceremony is not matrimonial at all: it is certainly not a void marriage, and matrimonial principles have no application to such a "union"; but the participants in the ceremony almost certainly will commit a criminal offence of giving false statements for the purpose of obtaining a marriage certificate".

For the purpose of determining whether a particular human being is of a particular sex, the criteria are biological: see Corbett V Corbett (otherwise Ashley [1971] p.83 at 106) and Rees v United Kingdom [1985] 7 EHRR 429 sub nom the Rees case [1987] 2 FLR 111 and Cossey v U.K . [1991] Fam Law 362. While it may be that the advance of medical science may lead to a shift in the criteria applied by the English courts, it is plain that at present, the position is that laid down in Corbett and that, even in jurisdictions which have extended the criteria in the case of transsexuals, a "female to male" transsexual is not generally regarded as having satisfied the criteria of masculinity unless endowed (by surgery or otherwise) with apparent male genitalia. In those circumstances it is also plain that the appellant was well advised not to defend the suit for nullity brought against him by the plaintiff.

However, although a marriage void for the reason that the two parties are of the same sex is not merely a void but a meretricious marriage which cannot give rise to anything remotely matrimonial in character, this has not historically prevented a party from seeking a decree of nullity in respect of it. As made clear in Corbett by Ormrod J, such a case fell within the statutory jurisdiction of the High Court derived from Section 2 of the Matrimonial Causes Act 1857, so that there was probably no discretion to withhold a decree of nullity sought on the grounds that the parties were of the same sex (cp Kassim v Kassim [1962] p.224 in the case of a marriage void for bigamy). Further, upon decree of nullity, the Court had power to entertain an application by a wife for ancillary relief: see Corbett at p. 109 D-E.

Thus, while sections 11(c) 23 and 24 of the 1973 Act now set out explicitly within a single Act the statutory jurisdiction of the Court in respect of the grant of decrees of nullity, the power to grant some measure of ancillary relief in association with a decree in respect of a single sex marriage was not introduced by the 1973 Act; nor, on the face of it, as between the various heads of nullity set out in paragraphs (a) to (d) of Section 11, does it appear from the terms or context of the relevant provisions that different principles of law are intended to apply as to the availability of the right in either party to the marriage to apply for such ancillary relief.

In those circumstances, if there is any fetter upon the Court's power to entertain an application for ancillary relief as provided in the 1973 Act, it must come from the application of some wider principle dehors the Act to which its terms, as a matter of interpretation, must be intended to be subject.

It was by reference to such wider principle that this Court in Whiston held that, in the case of a bigamous marriage knowingly contracted by one of the parties, that party was precluded from making application for ancillary relief, on the public policy ground that the claim was necessarily founded upon a serious criminal offence. While the leading judgment of Ward LJ was in somewhat more wide-ranging terms, Henry LJ put his decision squarely upon the basis that the application was:

"necessarily and inevitably founded on ... conduct on her part [which] amounted to the crime of bigamy, and had she not committed that crime she would have had no claim for financial provision under the Matrimonial Causes Act because as an unmarried cohabitee she would have had no such claim.

That being so, this case falls squarely within the principle that as a matter of policy the Court will not lend its aid to one who, to succeed, must found her claim on a criminal offence of sufficient gravity, as this crime of bigamy in my judgment was.

In my judgment, neither the enactment nor the wording of the Matrimonial Causes Act 1973 in any way affects or dilutes that principle as it exists in the common law, and that principle is fatal to this claim."

Russell LJ. put it thus:

"Bigamy, as opposed to mere cohabitation, strikes at the very heart of the institution of marriage. In those circumstances, the fact that this respondent has contracted a bigamous marriage would be a necessary foundation for her claim for financial relief under the Matrimonial Causes Act 1973.

For a litigant to have to rely upon his or her own criminal behaviour in order to get a claim on its feet is in my judgment offensive to the public conscience and contrary to public policy."

The final, and it seems to me the key, passage in the judgment of Ward LJ. is as follows:

"Today we have this respondent seeking to profit from the crime. Her claim derives from the crime. Without her having entered into this bigamous ceremony she would not have got to the judgment seat at all. She should now in my judgment be prevented from going any further."

In the instant case, the plaintiff´s Points of Claim in the issue asserted in support of the "public policy" aspect

(a) that the appellant unlawfully entered into a ceremony of marriage "thereby committing an offence under s.3 of the Perjury Act 1911 for which the maximum sentence is 7 years imprisonment" (paragraph 3);

(b) that at no point prior to, or during, the purported marriage did the appellant advise the plaintiff of his female gender and that the plaintiff was unaware that the defendant had been born female until acquiring the appellant´s birth certificate in May 1994 (paragraphs 3 and 4).

The matter seems to have been principally argued, and the public policy argument upheld by Hollis J., not on the general basis of a deception practised on the plaintiff, but on the basis that, the appellant having committed perjury by his declaration to the Registrar, the outcome was necessarily determined by the decision in Whiston since, in seeking ancillary relief, the appellant was seeking to profit from his own serious crime.

I do not think Hollis J. was bound to apply Whiston. Further, it seems to me undesirable that the decision in Whiston should be applied beyond the confines of what I have indicated appears to be its ratio decidendi. My reasons are as follows

It seems to me that the broad scope and interest of the 1973 Act in relation to nullity is to set out the multiplicity of grounds upon which a nullity decree might previously be obtained (see the Nullity of Marriage Act 1971 as now consolidated in the 1973 Act, s.11 (Void Marriages) and s.12 (Voidable Marriages)), and to provide that in respect of all, without distinction, the court should have power on grant of decree, to entertain an application for ancillary relief of all or any of the various types set out in part II of the Act, if and insofar as the granting of such relief may appear appropriate . I underline those last words, because, apart from the enabling words " may make", which govern the exercise of the various powers in part II, the court has a duty to have regard to all the circumstances of the case including, but not limited to, the number of considerations specifically set out in S.25.

Furthermore it seems to me plain that Parliament must be taken to have given this power to the court in the knowledge that, so far as nullity suits are concerned, the conduct of one party may well have involved some form of fraud, deceit or immorality, whether in the form of representations made to, or matters withheld from, the other party to the marriage, or in the form of a false declaration to the Registrar of Marriages. So far as the parties are concerned, Ward LJ. has listed a number of matters which might be instrumental in persuading an innocent or ignorant party into a ceremony of marriage to which otherwise he or she would have refused to be party. So far as concerns false declarations to the Registrar, as Ward LJ. has also indicated, such declarations may be of a type which are more or less serious in effect.

Thus, in broad terms, it seems to me, first, that the Court should approach the question of the impact of public policy as a disqualifying factor in a very restrictive manner, on the basis that the Court, when considering "all the circumstances of the case" under s.25(1) of the 1973 Act, has, and was intended to have, the power to refuse an order for ancillary relief in any case where it seems appropriate by reason of the conduct of the parties and/or the effect of the order if made. Second, that however inappropriate, bizarre, or even impudent an application by one party who has deceived another may appear, the 1973 Act intends and anticipates that the applicant should be considered as at least a candidate for the exercise of all, any, or none of the forms of relief which it is within the power of the Court to grant following decree. The fact that such application may be made following a meretricious marriage, whereby the applicant is seeking to obtain a form of relief which would never have been open to him/her had they merely cohabited together as single parties, rather than abusing the institution of marriage as it is legally defined and recognised, seems to me a circumstance which the Court can and should take into account when deciding whether and, if so, in what manner to exercise its discretion in the applicant´s favour.

In Whiston, the conduct of the appellant in "marrying" (i.e. knowingly going through a form of bigamous marriage with) the plaintiff was itself a criminal offence. Thus, the crime concerned not only went "to the very heart of the institution of marriage" but was itself the "marriage" founding the claim. In this case, the crime of perjury complained of was a collateral matter which, albeit it enabled the "marriage" to proceed, was not itself the crime complained of. So far as the deception practised by the appellant upon the plaintiff was concerned, sad and reprehensible as it was, the profound betrayal of trust involved did not in itself constitute a crime. As I have already indicated, short (as decided in Whiston) of reliance by the applicant upon a marriage which was itself a crime, I consider that the 1973 Act intends that all matters of conduct as between the parties should be brought into a discretionary post-decree balancing exercise so far as ancillary relief is concerned. In doing so, the Court may and should take account of principles of public policy in exercising its discretion. I would therefore hold that, if and insofar as the Judge´s decision was to strike out the application of the appellant for ancillary relief in limine on the basis that the claim in Whiston obliged him to do so, it was in error.

That said however, I have no doubt that the right result was achieved. S.25(1) of the 1973 Act provides that:

"It shall be duty of the Court in deciding whether to exercise its powers under Section 23, 24 or 24A above and, if so, in what manner, to have regard to all the circumstances of the case ...."

before going on to provide that:

"first consideration should be given to the welfare while a minor of any child of the family."

It then enumerates in sub-section (2) the particular matters to which the Court shall have regard in relation to the exercise of its powers under those sections. Having carefully considered those specific matters, the overwhelming circumstances of this case seem to me to be, first, the fact that the appellant deceived the plaintiff into a marriage which would not have taken place had she known the truth as to his sexual position; second, that, by doing so, he has placed himself in a position where he has the opportunity to apply for a wide range of relief which would never have been open to him had he been frank with the plaintiff and simply lived in a state of cohabitation with her (if she were so content) during the period of the "marriage". He has thereby artificially enjoyed a standard of living throughout the "marriage" far higher by reason of the plaintiff´s means than would otherwise have been the case, for reasons which reflect no credit upon him and which in my view do not call for any favourable consideration of his claims on equitable grounds as a "spouse", as opposed to a cohabitee. That view is based upon a careful consideration of all the material before the Court as to the relative means and contributions of the parties and making all assumptions in the appellant's favour where issues appear.

I would only add that it is the plaintiff who has the care of the children, for whom she provides, and it does not seem to me that the welfare of either child requires the payment of any sum to the appellant.

I would therefore dismiss the appeal.

SIR BRIAN NEILL: INTRODUCTION

The parties to these proceedings went through a ceremony of marriage on 7 July 1977. On 6 July 1994 the plaintiff in the present proceedings presented a petition seeking a decree that the ceremony of marriage should be declared null and void. The ground set out in the petition was that at the date of the ceremony the parties were not respectively male and female. A previous petition for divorce issued by the plaintiff on 22 April 1994 had already been dismissed by consent on 26 May 1994. In the petition the plaintiff claimed ancillary relief including a property adjustment order.

The defendant did not defend the claim for a decree of nullity. The petition was heard in the Brighton County Court on 19 August 1994 when a decree nisi was granted declaring that the marriage was void by reason of the fact that at the date of the ceremony the parties were not respectively male and female. The decree was made absolute on 20 October 1994. In support of the petition the plaintiff relied on the following provision in section 11 of the Matrimonial Causes Act 1973 (the Act of 1973):

"A marriage celebrated after 31 July 1971 shall be void on the following grounds only, that is to say -

....

(c) that the parties are not respectively male and female ..."

This section replaced section 1 of the Nullity of Marriage Act 1971.

On 4 November 1994 the defendant, who was the respondent to the petition, issued an application for ancillary relief including an order for periodical payments (including secured payments and a lump sum) and a property adjustment order. The plaintiff, however, challenged the right of the defendant to apply for ancillary relief. On 2 August 1995 she issued a summons for an order,

"directing a trial of the preliminary issue as to whether, following the Court of Appeal decision in the case of Whiston v. Whiston on 23 March 1995, the respondent should be debarred from pursuing his claim for ancillary relief on the grounds that continuance of the claim would be contrary to the doctrine of public policy."

On 16 October 1995 Singer J. ordered that there should be a trial of the preliminary issue as to whether the respondent should be debarred from continuing his claim for ancillary relief on the ground that it was contrary to public policy. The judge also gave certain consequential directions including a direction that the petitioner in the nullity proceedings should be the plaintiff in the issue and the respondent should be the defendant. It will be convenient to continue to refer to the parties as plaintiff and defendant respectively. Where pronouns are used I shall refer to the plaintiff as "she" and to the defendant as "he".

The trial of the preliminary issue took place before Hollis J. in chambers in January 1996. He had before him affidavit evidence and medical reports. In addition he had the oral evidence of the plaintiff and the defendant and of one witness called on each side.

The case for the plaintiff at the trial of the preliminary issue can be shortly stated. It was alleged that the defendant was born a female in 1946, and that he had undergone a partial sex change by virtue of hormone injections and a bilateral mastectomy in 1972 and 1973, but that the plaintiff had not been aware that the defendant had been born a female until a copy of the defendant's birth certificate was produced at the hearing of the divorce petition in May 1994. It was further alleged that by entering into the ceremony of marriage the defendant had committed an offence under section 3 of the Perjury Act 1911.

The allegation that the defendant had committed perjury was based on the declarations which the defendant made in the Form 16 which he signed in 1977 when the ceremony took place. In the Form 16 (prescribed by the Registration of Births, Deaths and Marriages Regulations 1968) signed by the defendant he described himself as a bachelor and made inter alia the following declarations:

"I solemnly declare that I believe there is no impediment of kindred or alliance or other lawful hindrance to the said marriage ...

....

I declare that to the best of my knowledge and belief the declarations which I have made above and the particulars relating to the persons to be married are true. I understand that if any of the declarations are false I may be liable to prosecution under the Perjury Act 1911.

I also understand that if, in fact, there is an impediment of kindred or alliance or other lawful hindrance to the intended marriage the marriage may be invalid or void and the contracting of the marriage may render one or both of the parties guilty of a crime and liable to the penalties of bigamy or such other crime as may have been committed."

At the trial of the issue the judge examined in detail the defendant's state of mind as to his ability to contract a lawful marriage and also the state of the plaintiff's knowledge of the defendant's physical characteristics and status.

In the course of his judgment which he delivered on 25 January 1996 Hollis J. said that he had to consider whether any of the declarations made by the defendant in Form 16 was false to the defendant's knowledge. The judge took the view that he had to apply the criminal standard of proof.

On the issue of the defendant's state of mind the judge concluded, applying the criminal standard of proof, "that the defendant knew perfectly well that there was a lawful hindrance to his validly marrying the plaintiff." He based this finding on the following line of reasoning:

(a) That the defendant knew that in order to be free to marry he had to complete all three stages of the treatment needed to effect a change of sex, namely hormonal treatment, the removal of the female breasts and a phallic operation.

(b) That the defendant completed the first two stages of this treatment but did not complete the third stage by having an operation to create a false penis.

(c) That accordingly the defendant knew that he was not free to marry and had therefore committed perjury in signing the declaration that there was no lawful hindrance to the marriage.

It does not appear that the judge made any express finding as to the defendant's declaration that he was a bachelor.

The judge further concluded that by making the false declaration that there was no lawful hindrance to the marriage the defendant had committed "a most serious offence."

On the issue as to the plaintiff's knowledge the judge's finding is not altogether clear. It is plain, however, that he was satisfied that it was not until long after the marriage that she became aware that the defendant was a female. It may well be that the judge accepted that she did not have this knowledge until the discovery of the birth certificate in May 1994. Moreover it appears from the transcript (17D) that the judge did not think that the plaintiff would have gone through the ceremony of marriage had she known the defendant's "true gender".

A little earlier in his judgment the judge made a detailed reference to the judgments in the Court of Appeal in Whiston v. Whiston [1995] 2 FLR 268. He then sought to apply what he believed to be the reasoning in Whiston to the findings of fact which he had made. He concluded his judgment as follows:

"... I still have some disquiet as to dismissing the defendant's application for financial relief mainly on the grounds of practical convenience. The plaintiff is a very rich woman; the defendant, as I understand it, has nothing except considerable assets given to him by the plaintiff and a possible equitable interest in the proceeds of the sale of the last matrimonial home. The plaintiff is pursuing her claim for financial relief, mainly in order to get her money back if possible, which the defendant will in any event be entitled to oppose. Thus, it appears that there is a possibility of further claims in other divisions of the High Court which indeed might be transferred to this division but would entail further delay and expense.

Furthermore, such a decision would tend to restrict applications for financial relief in the case of void marriages to innocent parties, which is not what the statute says. Apart from that latter consideration, those considerations were not dealt with in Whiston because it does not appear that the husband in that case was making any claim for financial relief against the wife. However, the plaintiff has proved to my satisfaction that the defendant has committed a serious crime against her. As a result, the parties lived together as unmarried cohabitees for some sixteen or seventeen years. Thus any claims the defendant may have against the plaintiff should be limited, in my opinion, to such claims as an unmarried cohabitee would have. I shall therefore and for those reasons dismiss the defendant's claims...."

In my view three questions arise for determination on this appeal:

(1) Whether there was sufficient evidence to justify the finding that the defendant had made false declarations and had committed the crime of perjury.

(2) Whether by the application of the principles applied in Whiston or otherwise the defendant's claim for ancillary relief is barred in limine.

(3) Whether, notwithstanding the fact that the defendant's claim is not barred in limine, it is bound to fail.

On the first of these questions I have had the advantage of reading the judgments of Ward L.J. and Potter L.J. I agree with their conclusions that there was sufficient evidence to justify the judge in coming to the conclusion that the defendant knowingly made the false declaration that there was no hindrance to the marriage. In making this false declaration he deceived the registrar as well as the plaintiff as to his true gender.

I turn therefore to the second question. It is not necessary for the purpose of this appeal to consider whether the decision of Ormrod J. in Corbett v. Corbett [1971] P.83 requires re-examination in the light of modern medical advances and in the light of decisions in other jurisdictions, or whether it is distinguishable because the words used in section 11 of the Act of 1973 are "male and female" which, I suppose it might be argued, indicate a test of gender rather than sex. In this case the defendant does not and cannot seek to challenge the finality of the decree of nullity which was made absolute on 20 October 1994. Nor is it necessary to trace in detail the developments in the law relating to the nullity of marriage which have taken place since the enactment of the Matrimonial Causes Act 1857. For present purposes the grounds for a decree of nullity are those exclusively set out in sections 11 and 12 of the Act of 1973. It may be noted, however, that it was not until the Matrimonial Causes Act 1907 that applications for ancillary relief could be made in nullity proceedings, at that time of course only by a petitioning wife.

The scope of the provisions in sections 11 and 12 of the Act of 1973 is instructive. Section 11 provides:

"A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say -

(a) that it is not a valid marriage under the provisions of the Marriage Acts ... (that is to say where -

(i) the parties are within the prohibited degree of relationship;

(ii) either party is under the age of 16; or

(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);

(b) that at the time of the marriage either party was already lawfully married;

(c) that the parties are not respectively male and female;

(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales."

The grounds on which a marriage is voidable under section 12 of the Act of 1973 are set out in these terms:

"A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say -

(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;

(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;

(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

(d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;

(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;

(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner."

The principal forms of ancillary relief available on the grant of a decree of divorce or a decree of nullity are those set out in sections 22, 23 and 24 of the Act of 1973. In each of these sections it is made clear that the power of the court to grant relief is discretionary. As far as I am aware, the discretionary nature of this relief has been a feature of matrimonial proceedings ever since the power to award alimony in divorce proceedings was conferred by section 32 of the Act of 1857.

In section 25 of the Act of 1973 (as amended) are set out the matters to which the court is to have regard in deciding how to exercise its powers under section 23 and section 24. Section 25(1) provides:

"It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 ... above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18."

In addition one of the matters to which the court is to have particular regard in exercising its powers to order periodical payments or the payment of a lump sum is "the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it." (see section 25(2)(g)).

In the present case, however, the judge decided, notwithstanding the discretionary nature of the power to grant ancillary relief, that the defendant was barred in limine from pursuing his application. In reaching this conclusion the judge took account of the fact that, as he found, the defendant had committed a serious crime against the plaintiff and that in those circumstances the principle of public policy which was explained in Whiston (supra) prevented the defendant's application proceeding.

The principles of public policy which were invoked by the judge and by the Court of Appeal in Whiston are based on the doctrine that the courts should "refuse to assist a criminal to benefit from his crime at least in serious cases" (see R. v. Secretary of State for the Home Department, ex parte Puttick [1981] 1 Q.B. 767 at 775 per Donaldson L.J.), and on the wider doctrine, explained by Ward L.J. in his illuminating judgment in the present case, that "no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act; (see Holman v. Johnston (1775) 1 Cowp 341, 343 per Lord Mansfield CJ). The maxim to be applied has been formulated in Latin as ex turpi causa non oritur actio .

I must turn therefore to the decision in Whiston (supra). In that case it was held that the applicant for ancillary relief, who had entered into a ceremony of marriage in England in 1973, aware that her husband in the Philippines was still alive, could not pursue her claim for financial provision under the Act of 1973. Henry L.J. at 275 put the matter as follows:

"That conduct on [the applicant's] part amounted to the crime of bigamy, and had she not committed that crime she would have had no claim for financial provision under the Matrimonial Causes Act - as an unmarried cohabitee she would have had no such claim.

That being so, this case falls squarely within the principle that as a matter of policy the court will not lend its aid to one who, to succeed, must found her claim on a criminal offence of sufficient gravity, as this crime of bigamy in my judgment was."

It is to be noted, however, that in Whiston

(a) the case came before the Court of Appeal on an appeal from Thorpe J. who in the exercise of his discretion had reduced the relief ordered by the District Judge to a smaller sum to take account of the applicant's conduct. The Court of Appeal was not concerned with the trial of a preliminary issue;

(b) the contract of marriage on which the applicant had to rely in order to found her claim for relief was the actus reus of the crime of which the applicant was guilty. It was not a case where the marriage had been procured by some perjury or by duress. The marriage itself being bigamous was the crime.

I see the force of the argument that in the present case the marriage was as lacking in substance as the marriage in Whiston. The classic definition of a Christian marriage is that given by Lord Penzance in Hyde v. Hyde (1866) LR 1 P & D 130 where he said at 133:

"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."

It can therefore be said that a bigamous "union" is no more meretricious than a "union" between two persons of the same sex or gender. But Parliament, in empowering the court to entertain applications for ancillary relief, has not distinguished between different categories of void or voidable marriages. This court is bound by the decision in Whiston, but I do not think it is necessary to treat Whiston as laying down an inflexible rule that even where the court is exercising a discretionary jurisdiction to grant ancillary relief the fact that the marriage was contracted in circumstances which involved the commission of a serious crime debars the guilty party in limine from making a claim. For my part I would limit the rule in Whiston to cases of bigamy where the marriage itself constituted a criminal act.

I would seek to explain my approach as follows:

(1) In the relevant sections of the Act of 1973 dealing with ancillary relief all decrees of nullity appear to be treated in the same way.

(2) Section 25 of the Act of 1973 requires the court when exercising its powers under section 23 or 24 to take account of all the circumstances of the case. This requirement suggests that the scope for the trial of a preliminary issue is very limited.

(3) The principle of public policy which can be invoked to bar a claim depends on the establishment of a "serious" crime by the claimant. In many cases, as it seems to me, a decision as to whether or not a particular crime has crossed the threshold of seriousness may involve an investigation of all the circumstances, including the effect on the other party and any mitigating factors which may reduce the degree of blame. In a case concerning a transsexual in particular such an investigation may require detailed consideration of the medical treatment and advice which the applicant received over a period.

(4) I have not been persuaded that in a case which involves the exercise of the court's discretion it is necessary or desirable to carry out a preliminary inquiry to determine one aspect of an applicant's conduct before the general merits of the claim are investigated. As I have already indicated, crimes may vary to an almost infinite degree in their seriousness. This is particularly true of offences under the Perjury Act.

(5) Though it is clear from the decision of the House of Lords in Tinsley v. Milligan [1994] 1 AC 340 that where considerations of public policy intervene to prevent the enforcement of rights claimed under an illegal contract the court is precluded from carrying out a balancing operation, the situation appears to me to be different where Parliament itself has conferred a discretion on the court and has included a requirement that the court in exercising that discretion should consider all the circumstances of the case.

For these reasons I would not decide the preliminary issue on the basis that the applicant is barred in limine from pursuing the claim because by signing the false declarations he had committed a serious crime. Nor would I bar him by the invocation of the wider doctrine of ex turpi causa without investigating all the circumstances of the case.

I turn therefore to the third question which I posed earlier. I am satisfied that it is legitimate to take account of principles of public policy as a guide to the exercise of the court's discretion. The fact that the applicant has been guilty of a serious crime and has practised a grave deception on the other party to the "marriage" are clearly relevant circumstances.

I turn to the facts. I have considered whether it is necessary to seek any further assistance from counsel about the facts before the court reaches a conclusion. The affidavits, however, are full and detailed. It is plain, as the judge himself observed, that the plaintiff is a very rich woman and the defendant has nothing except assets given to him by the plaintiff and a possible equitable interest in the proceeds of the sale of the last matrimonial home. One can therefore make all necessary assumptions of hardship in favour of the defendant. Nevertheless, I am quite satisfied that on the facts no court could, in the proper exercise of its discretion, grant ancillary relief of the kind claimed in favour of the defendant. It is at this stage, as I see it, that the conduct of the defendant at the time of the marriage, when judged by principles of public policy, brings down the scales overwhelmingly against the grant of any relief.

Accordingly, though I have reached my conclusion by a different route than the judge, I am satisfied that he was correct to dismiss the claim.

Order: Appeal dismissed; no order as to costs;

application for leave to appeal to the

House of Lords refused.