Spousal Consent

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Spousal Consent and the Liberal Democrats

Liberal Democrats have announced (and more recently Labour) that they support the removal of spousal consent (“spousal veto”) which is currently required when one person in a marriage wishes to transition to a different “legal sex” and remain married. This provision means the spouse must give their consent for their marriage to continue before gender recognition is awarded.

Spousal consent is detailed in schedule 5 of the Marriage (Same Sex Couples) Act 2013.

It is our view that it is incorrect to call the requirement for spousal consent a “veto”. This language is a barrier to clarity, and implies that the non-transitioning spouse can veto their partner’s transition. This is not the case. This position is shared by Prof Stephen Whittle of Press For Change. You can read more here.

In our submission to the GRA WESC consultation, and the Conservative Government’s GRA Consultation we supported the retention of the “spousal veto” as it provides a degree of protection to the spouse. We said:

This situation largely affects the female spouse of late transitioning males. If spousal consent is removed, they will potentially be trapped in marriages utterly changed from that which they entered.

For some, divorce may be a straightforward solution to this situation but laws must take account of the needs of everyone, including those from religious communities where divorce may not be an acceptable or desirable option and could lead to being outcast from a community.

For some women it simply may not be financially viable to seek a divorce.

Therefore, a veto must always be an option for the non-transitioning spouse. WPUK

The Women and Equalities report on Transgender Equality noted the following on Spousal consent:

Since the passing of the Marriage (Same Sex Couples) Act 2013, marriage in the law of England and Wales takes the form of a contract between two people of different sexes or two people of the same sex. Therefore, the law as it currently stands requires both parties to agree to the status of a marriage being changed.

Consequently, where one party transitions, the non-trans party must give their consent to the change of marriage status before a full GRC can be issued. If such consent is withheld, the marriage must be dissolved by divorce or annulled before a full GRC can be issued. In this circumstance, an interim GRC can be issued, on the basis of which either party to the marriage can apply to have it annulled.

In its submission to the report, the Government Equalities Office said:

[The requirement for consent] does not mean anyone will have a right to prevent their wife or husband obtaining a legal gender change; simply that they will be allowed to decide whether they want their marriage to continue before gender recognition is granted.Marriage is a contract between two individuals and it is right that both spouses should have an equal say in their future when there is a fundamental change.

 

Originally published September 2019