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We have a divorce case, husband X divorcing wife Y.

However, somewhat simultaneously, wife Y is undergoing a Female-to-Male transition.

  • What exactly would be the necessary trigger/condition for the court to consider Y to be male? E.g. would it depend on divorce filing? Driver's license details at hearing? Special pleading from Y's lawyer? Specific supporting documents?

  • As a small side question, would this change the whole "husband/wife" thing? Or are those two words not even a part of usual divorce hearing anyway?

Please note that I'm specifically asking about the substance of the divorce, NOT pronouns that the divorce parties are addressed by.

UPDATE: since all the answers so far don't actually answer my question and instead try to frame-challenge it as "gender is not relevant, so I won't answer the detail you asked - which is how the court decided on gender of a party"; I must point out that at the VERY least, gender strongly influences custody choice (absent truly exceptional circumstances, females get primary - if not sole - custody BY DEFAULT, in majority of cases, without any need for proof or evidence, and getting even equally shared custody for a male is an enormous challenge, never mind primary). So, please answer the question asked, NOT challenge the frame.

Jurisdiction (if it matters) is USA, let's assume Washington state (but honestly, any state where there's an imbalance in custodial arrangements, I'm using this map to pick one)

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  • 5
    There are no differences in divorce law between traditional and same-sex marriages. Why do you think switching gender would have any effect? Or do you have a specific juristiction in mind where this is not the case?
    – nvoigt
    Commented Dec 18, 2023 at 7:54
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    Also, the thinking that someone must be "at fault" for a divorce was abandoned in the late seventies. If you were thinking about that, again, maybe you are thinking about a specific juristiction that's still stuck in the 70s?
    – nvoigt
    Commented Dec 18, 2023 at 7:56
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    @nvoigt: it is still the case in many jurisdictions that there is a presumption in favour of the mother in determining custody. Commented Dec 18, 2023 at 9:32
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    @JackAidley Divorce and Custody are two distinct things. The default assumption in a divorce is continued shared custody and you can easily have a custody battle although the parties don't want to divorce (or were never married in the first place). If this is different in a specific juristiction, it needs to be stated in the question.
    – nvoigt
    Commented Dec 18, 2023 at 9:37
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    "at the VERY least, gender strongly influences custody choice (absent truly exceptional circumstances, females get primary - if not sole - custody BY DEFAULT, in majority of cases, without any need for proof or evidence, and getting even equally shared custody for a male is an enormous challenge, never mind primary" This is, as a matter of law, untrue.
    – ohwilleke
    Commented Dec 18, 2023 at 16:30

5 Answers 5

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Section 1 of the Matrimonial Causes Act 1973 (as amended by the Divorce, Dissolution and Separation Act 2020) has:—

  1. Divorce on breakdown of marriage
    (1) Subject to section 3, either or both parties to a marriage may apply to the court for an order (a “divorce order”) which dissolves the marriage on the ground that the marriage has broken down irretrievably.
    (2) An application under subsection (1) must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably.
    (3) The court dealing with an application under subsection (1) must—
       (a) take the statement to be conclusive evidence that the marriage has broken down irretrievably, and
       (b) make a divorce order.

The terms husband and wife do not appear. They are "parties to the marriage."

In your quoted circumstances, it could be reasonable for X to say "I married a woman; she has every intention of not being the woman I married; the marriage has irretrievably broken down."

The Gender Recognition Act 2004 allows the issue of an interim Gender Recognition Certificate to someone who is married and whose spouse does not consent to the marriage continuing [note: sex or gender is immaterial again]. Section 11A(2) has "The continuity of the protected marriage [ie, a marriage in England & Wales or Scotland] is not affected by the relevant change in gender." So the issue of a certificate per se does not cause the marriage to be dissolved; but it could be a contributory factor to the breakdown of a marriage.

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  • FYI - I'm not familiar enough with UK law, but in no-fault states in USA, "I want to get divorced" is basically an axiom which is not required to be given a "cause" - you want to get divorced, you ask for it, no reasons needed - and to the best of my limited understanding, the reason won't even affect the divorce AT ALL (unless it's an annulment in some super rare circumstance)
    – user17760
    Commented Dec 18, 2023 at 14:46
  • However, this doesn't answer my question - it says that you can GET Gender recognition certificate while married; but not the effect of said issuance on divorce proceedings (intuitively, I'd assume this certificate should be enough for divorce court?)
    – user17760
    Commented Dec 18, 2023 at 14:51
  • On the contrary, it demonstrates that there is no effect per se on divorce proceedings, but it might be a factor which causes an irretrievable breakdown in the marriage. Sex and gender are immaterial, and your original question didn't ask anything about custody. It's really bad practice to change a question once you have answers. Ask a different question instead. Commented Dec 18, 2023 at 18:51
  • Why would the judge care whether it was gender transition (and not refusal to wash the dishes, or any other of 10000 reasons) which caused breakdown of the marriage in a jurisdiction with no-fault divorce? And I wasn't asking in the original "why would a judge care about gender?". I was asking "What would cause the judge to recognize the fact of gender change". It was all the people claiming that the judge wouldn't ever need to, which caused me to amend the question.
    – user17760
    Commented Dec 18, 2023 at 19:44
  • The judge doesn't. In England & Wales, divorce is no-fault. There's no fault in a GRC; but it can be evidence of irretrievable breakdown. I'm not entirely sure why we're talking at cross-purposes: the answer to "What would cause the judge to recognise the fact of gender change" is "Nothing except a GRC," and that's only relevant where it contributes to an irretrievable breakdown. Commented Dec 18, 2023 at 20:17
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Legally, there is no preference for one gender over the other in awarding custody. So there is no legal point where a person transitions from one gender to another and is suddenly treated differently for custody purposes.

To the extent that there is a discrepancy in custody awarded to the mother vs the father and that discrepancy is not the result of factors like parental desire for primary or joint custody, it is likely that the issue is the result of a judge's bias that kids are better off with their mothers. Different judges would likely have different sorts of biases so the answer would change for each judge and for the particulars of each case.

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Separation in British Columbia is about "spouses," not "husband" and "wife." See Family Law Act.

Gender is irrelevant for the purposes of separation.

It is also not a legally recognized factor in determining parenting time or parenting responsibilities. If a judge were to allow a party to put this fact in issue and to consider it in relation to parenting time, they will have committed an error in law, reversible on appeal.

See e.g. K.L.G. v. D.J.T., 2013 BCSC 1684:

One parent cannot be granted privileges over another parent based on gender. Such a presumption runs counter to the fundamental operative principle of the FLA.

And the Supreme Court of Canada has said (F. v. N., 2022 SCC 51, considering Ontario law):

I agree that equal treatment of parents, irrespective of their gender, is a fundamental precept of family law in Ontario and is tied to the application of the best interests of the child in custody matters.

Gender is also not relevant for divorce or determination of parenting time or parenting responsibilities after divorce. See the Divorce Act, s. 16.1 and following (note, the previous language of "custody" has been repealed and replaced with language concerning "parenting time" and "decision-making responsibilities").


If you are simply asking in the abstract how to prove a fact that is at issue in litigation: that has been answered here: How do you prove a fact at issue in litigation? You present whatever evidence is relevant to the disputed fact. There is no "threshold" that can be stated more specifically than one must generally convince the judge of a point on a "balance of probabilities." What evidence will get one there depends on the issue and all the evidence from both sides of the issue.

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  • I clarified the question. Gender is NOT irrelevant, at the very least for custody purposes (in USA - don't know about Canada); so this doesn't answer the question as asked.
    – user17760
    Commented Dec 18, 2023 at 14:53
  • my problem isn't different jurisdiction, my problem is that (absent evidence to the contrary) I suspect Canada is as gender NON-neutral in questions of (at least) custody as USA is. I'm happy to be proven wrong. But until then, the answer of "gender isn't relevant" is not only failing to answer what I asked; but also directly contradicts reality. And your last edited paragraph doesn't answer the TECHNICAL question, of "what is the actual technical threshold for the court to recognize gender change". Not some abstract theoretical fact, but gender change
    – user17760
    Commented Dec 18, 2023 at 15:56
  • Also, the "Divorce act" link doesn't seem to actually contain real custody rules, they are marked as "repealed" unless I'm misreading.
    – user17760
    Commented Dec 18, 2023 at 15:59
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Bürgerliches Gesetzbuch (BGB)

§ 1565 Scheitern der Ehe

  1. Eine Ehe kann geschieden werden, wenn sie gescheitert ist. Die Ehe ist gescheitert, wenn die Lebensgemeinschaft der Ehegatten nicht mehr besteht und nicht erwartet werden kann, dass die Ehegatten sie wiederherstellen.

Translation:

§ Section 1565 Breakdown of the marriage

  1. a marriage may be divorced if it has broken down. The marriage has broken down if the spouses' cohabitation no longer exists and the spouses cannot be expected to restore it.

As you can see, there is no notion of "wife" or "husband". Only a gender neutral term.

As far as the papers are concerned, this is a legal proceeding, the name on the papers will be their legal name as given on their government issued ID at the point of the divorce. That is how German law works, you cannot just say "oh, please use another name for me" on a legal document.

Since you appended your question with an update asking for custody of children, custody is a seperate issue from marriage and divorce. You can have custody issues without ever having been married and a divorce does not automatically change custody. The default for a divorce is continued shared custody. If one of the parties wants another ruling, they need to apply for it seperately.

What transitioning does in a custody battle is a question for a specific case, there is no general rule in German law.

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  • Germany is pretty strict about how and when you are allowed to change your legal name.
    – nvoigt
    Commented Dec 18, 2023 at 12:27
  • I have made it clearer... I'm sure there is juristictions out there where you can identify yourself by pressing a wet donkey foot into clay or something, in Germany, it is the government issued ID that counts.
    – nvoigt
    Commented Dec 18, 2023 at 12:35
  • So, when someone undergoes transition, do they get a new ID? And if so, then the question is "does getting that new ID affect divorce proceedings, at the time of issuance?"
    – user17760
    Commented Dec 18, 2023 at 14:52
  • Yes, if they transition to the point where the government recognizes their new identity, they get a new ID. Until then, legal documents will cite their old name. Legal documents will cite the name that identifies you to the authorities.
    – nvoigt
    Commented Dec 18, 2023 at 15:52
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A court in a divorce case does not determine the gender of the parties, and doesn't have to do so. No legal doctrines in divorce cases in the U.S. are gender dependent.

The main factors in alimony determinations are the length of the marriage, the relative incomes of the spouses, and the extent to which one party has made an economic sacrifice in the marriage that impacted that party's income. On average, this gender neutral test means that women are more likely to receive alimony awards than men, but this isn't always the case.

Child support, likewise, is based upon the relative gross incomes of the parties and the number of nights that the child spends with each parent, with adjustments for extraordinary expenses, amounts paid "in kind" by each parent, and imputation of income when a parent is intentionally unemployed or underemployed in order to reduce a child support obligation. Again, it is more common for a wife to receive child support under this gender neutral test, but both outcomes happen.

Property divisions seek either an equal or "equitable" distribution of property acquired in the marriage, although the exact details vary from state to state. But no of the U.S. property distribution doctrines are facially gender dependent. Often a pension or business asset will be allocated to the parent whose work it is associated with, while non-income producing "use assets" are allocated to the other spouse to balance the scales, but this is not a universal rule and varies on a case by case basis and with the tendencies and biases of the individual judge involved.

Attorney fees and costs in divorce actions are usually allocated based upon ability to pay.

UPDATE: since all the answers so far don't actually answer my question and instead try to frame-challenge it as "gender is not relevant, so I won't answer the detail you asked - which is how the court decided on gender of a party"; I must point out that at the VERY least, gender strongly influences custody choice (absent truly exceptional circumstances, females get primary - if not sole - custody BY DEFAULT, in majority of cases, without any need for proof or evidence, and getting even equally shared custody for a male is an enormous challenge, never mind primary). So, please answer the question asked, NOT challenge the frame.

Your perception that gender is legally relevant to custody choices isn't correct and hasn't been legally correct for 30-50 years when the "tender years doctrine" was abolished in favor of a gender neutral "best interests of the child" standard (the date varied from state to state).

Ohio, which was typical, abolished the tender years doctrine in 1974. Some of the laggards in abolishing the doctrine were Alabama which did so in 1981, and South Carolina which did so in 1994. As of November 12, 2004, "all states ha[d] replaced the tender years doctrine with a gender-neutral best interests of the child doctrine[.]" (Source, in the closed access body text.)

Shortly after the transition from the tender years doctrine to the best interests of the child test, older judges who had applied the older test did sometimes covertly apply the older tender years doctrine test. But, for the most part, that generation of judges has now left the judiciary due to retirement or death (judging is usually a second career begun later in life), and gender neutrality is firmly embedded in the mindset of most judges. This said, in the many states where trial judges are elected, the biases of voters impact the attitudes of judges who are elected, and that can put judges in tension with the prevailing law. But most judges faithfully try to carry out the controlling law of their jurisdictions.

In Washington State, the tender years doctrine was abolished long before its second major legislative innovation was adopted in 2007:

The state of Washington adopted a shared parenting legislative model in 2007. This means that judges hearing custody cases must attempt to award joint custody whenever possible, as long as such a decision is determined to be in the best interests of the child(ren) involved. In 2017, there are still many states that do not follow this model. In this post, we will examine what this means for Washington parents.

Shared Custody vs. Visitation

Before the enactment of a presumptive shared (or joint) custody standard, Washington courts preferred to award sole physical custody to one parent. They usually granted visitation, but this antiquated model essentially amounted to a “winner” and “loser” in contested custody cases. Thankfully, Washington state was one of the first in the nation to collect data on the children of divorced parents and amend long-held laws governing custody and support.

Shared custody doesn't imply a equal number of nights with each parent. It means that one parent isn't awarded custody and another awarded visitation, with instead, each parent awarded some non-binary amount of parenting time. Major life decision-making is often shared as well, unlike a custody-visitation framework, although in cases where parents just can't agree on any major life decisions for a child, a court may award sole custody.

Your emphatic belief that the law is something other than it is doesn't make it true.

Custody would be determined in a divorce case where gender is unclear, in the same way as any other case, based upon "the best interests of the child" on a case by case basis under the individualized facts of the particular case with the particular parties involved. These determinations are reviewed by appellate courts only for an abuse of discretion (and, in divorce cases like all other forms of civil cases, custody decisions are made in settlements reached by the parties rather than by a judge 90%+ of the time).

[The] “best interest” standard. . . [is] derived from the UN Convention on the Rights of the Child, claims that “all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies” should be primarily determined by what's in the best interest of the child.

(Source)

Now, instead of applying the tender years doctrine, in custody cases, one thing that courts often do try to do to implement the "best interests of the child" is to try to reproduce the pre-divorce parenting time of the parties, without regard to gender, as much as possible. On average, women in married couples spend more time parenting than men, but this is not universally the case.

If a couple lives a very gender segregated 1950s style family life (as a significant minority of couples, perhaps 30%, do), the divorce outcomes tend to produce results similar to the older rules. But if a couple does not have that kind of lifestyle, their divorce outcomes will normally reflect their lifestyle.

For example, in a couple with a husband who works full time, and a wife who is a stay at home mom, the wife is likely to get more parenting time than the husband.

But the reverse is true in the less common case (which still exists, I have clients in these relationships, and so is the husband of my state's governor), where the one spouse works full time and a husband is a stay at home dad.

Results tend to be fairly equal, in contrast, in cases where both parents work demanding full time jobs (e.g., in the case of the divorce of one of my colleagues, a partner in a busy, high end, law practice, who was divorced from the CEO of a major international consumer product importing firm where each spouse had one week on and one week off every two weeks of parenting time at a shared house where the child lived 100% of the time since they could afford it, which each parent having a small apartment during "off times" at first).

couples with 50/50 income and asset ownership and similar self-reported childcare habits, the custody would come out literally 50/50.

As someone who has practiced law for 25 years with a steady low level volume of divorces (perhaps 1-3 per year), this is indeed what usually does happen in cases like this (which are not terribly common). Judges actually consider these cases some of the easy ones.

The hardest cases (which judges really agonize over and push parties to settle particularly hard so that they don't have to decide them) are cases when the parties live very far apart from each other (e.g. California and Maine) and can't afford to frequently fly a child back and forth, where the realities of the desirability of a child attending only one school each year favors a school year with one parent, long vacations with the other parent parenting time schedule. In those cases, where 50-50 parenting is otherwise indicated, the fit of the school and community available with each parent to the child often breaks the tie (and with older children, the preferences of the children are considered).

Resort to gender stereotypes is even more rare in divorces involving LGBT couples than among straight, cis-gender couples.

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  • Two points: (1) I have seen the arguments about "most cases are settlled out of court". What those assertions miss is the fact that HOW they are settled, greatly depends on "what is likely to happen in court". In other words, a man's lawyer would tell him "You are extremely unlikely to get primary custody in front of a judge, so save your effort, money, time and family strife and sign this settlement which is as good as what the judge will give you". A sane person would follow a professional's (presumably correct) advice and sign away their custody.
    – user17760
    Commented Dec 18, 2023 at 18:31
  • ... The statictics will show this as "settlement result", but the underlying custody result stems from court gender imbalance; NOT from parental wishes.
    – user17760
    Commented Dec 18, 2023 at 18:32
  • There's an easy way to figure out if this is the case: check if there's correllation between court outcomes and settlement outcomes, likely on a timelag basis (since settlement advice is based on prior averages). However, the point is that simply pointing to the fact that most custody cases are decided in mediation, is NOT a valid proof of lack of gender imbalance in court . None of the articles I saw on the topic bothered researching whether the two are somehow related or not; they simply asserted the statistics as if it's proof.
    – user17760
    Commented Dec 18, 2023 at 18:34
  • Also, if your answer were true, then among couples with 50/50 income and asset ownership and similar self-reported childcare habits, the custody would come out literally 50/50. How much are you willing to bet that it doesn't happen that way on average, even in most "non-tender-years" states?
    – user17760
    Commented Dec 18, 2023 at 18:37
  • @user17760 First of all, your argument in your first three comments that settlement happens in the settlement of a likely court ruling is not untrue (although limited in effect because roughly half of divorces don't involve lawyers so neither side really knows what the court will do, and by the fact that "reasonable parenting time as agreed by the parties from day to day" is a very common settlement outcome which would almost never be imposed by a court order).
    – ohwilleke
    Commented Dec 18, 2023 at 18:42

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