Summary: Exacerbating Corbett: W v Registrar of Marriages

Note: This article was written before W appealed to the Court of Final Appeal. The Court of Final Appeal allowed the appeal by a 4:1 majority, affirming W’s right to marry.[1] 
 
Summary 
 
In 2010, the Court of First Instance in the case W v Registrar of Marriages ("the W case"), following Corbett v Corbett (Otherwise Ashley) ("Corbett"), held that a post-operative male-to-female transsexual was not a woman, hence not eligible to marry his boyfriend. Concerned by the legal implication brought by this case, Athena Liu’s in her article "Exacerbating Corbett: W v Registrar of Marriages" criticises the judgment from the W case for going beyond Corbett. She emphasised on procreation within marriage and the understanding of marriage through the doctrine of the Church of England without a legal basis, even assuming the court was right to apply Corbett in the W case.[2] 
 
Examining the Legal Definition of Marriage 

The legal definition of marriage is set out in the Marriage Ordinance (Cap 181): 
"(1) Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage. 
(2) The expression Christian marriage or the civil equivalent of a Christian marriage implies a formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others." 
 
The section of the definition which drew the Court’s attention in the 1866 case of Hyde v Hyde was the meaning of "Christian marriage", which, among other definitions, was held as heterosexual in nature (one man and one woman).[3] The Court was not concerned with the definition of "man" and "woman" in the case of Hyde, yet future cases dwelled into the definition of it in light of modern medical advancement with regard to post-operative male-to-female transsexual, whether they should be considered a "woman" in a marriage. 
 
Corbett’s Definition of Man and Woman in a Marriage 

The Corbett case has facts similar to the W case. Corbett concerns again the legal basis for the marriage between the defendant April Ashley, a post-operative male-to-female transsexual, and the plaintiff Arthur Corbett. The Court held that the definition of "woman" in the context of marriage is based on the essence of marriage having the capacity for natural heterosexual intercourse. Therefore, the determination of sex must be in accordance to the biological characteristics at birth, and the person’s psychological state does not affect the determination of sex in the context of marriage.[4] Athena Lui also highlights that in the judgment of Corbett, the Court did not mention that the legal basis of marriage concerns the procreation of children. 
 
W’s Definition of Man and Woman in a Marriage 

With similar facts with Corbett, the article finds the Court not only applied Corbett in the W case, but even went further in including the notion that the definition of marriage has a procreation nature and should take reference upon the doctrine of the Church of England. This is reflected in paragraph 116 of the judgment of W, where Andrew Cheung J held "according to the doctrine of the Church of England, marriage is… for the procreation and the nurture of children…".[5] Athena Lui argues that these two factors do not have a legal basis and therefore is a retrogressive development for marriage law in Hong Kong. 
 
While it true that there is a traditional significance of procreation with reference to Hyde, that was no longer good law by the time when Corbett was decided. In Weatherley v Weatherley, the Court held that in considering the validity of a marriage, it is "not on a consideration of the Christian doctrine of marriage"[6], and in Baxter v Baxter, the court held that "it is indisputable that the institution of marriage generally is not necessary for the procreation of children"[7]. Hence, by the time Corbett was decided, procreation was no longer a necessary factor in marriage. The Court in W therefore should not have relied on the procreation argument for its decision. 
 
Regarding the doctrine of the Church of England argument in W, Athena Lui argues that it is necessary to examine their understanding of "Christian marriage" in Hyde, section 40 of the Marriage Ordinance (“MO”) and in W. In Hyde, the judge Lord Penzance commented that a "Christian marriage" means any "voluntary union for life of one man and one woman, to the exclusion of all others"[8]. This effectively broadens the meaning of "Christian marriage" beyond marriages that only satisfy the doctrine of the Church of England. This is made evident by Joseph Jackson in the Formation and Annulment of Marriage, which commented that Christian marriage "does not relate to Christianity as a religion but to the concept of marriage acknowledged and recognised by that religion, so that non-Christians are entitled to have their marriages recognised by English courts."[9] Hence, a "Christian marriage" is not referring to Christianity as a religion, but simply the concept of marriage accepted by Christian nations, i.e. any "voluntary union for life of one man and one woman, to the exclusion of all others". 
 
With regard to the MO, the "Christian marriage" mentioned carries the same meaning as Hyde. "Christian" marriage is used to contrast with the "non-Christian" customary marriage in which polygamy is accepted, hence again does not relate to "Christian" as in Christianity. Athena Lui therefore argues it was wrong in the W case to take reference of the factor of procreation and follow of the doctrine of the Church of England in defining what marriage is. 
 
An Alternative Interpretation of W and Section 20(1) of the MCO  

Alternatively, Athena Lui proposes a different interpretation of the judgment in W. While W does stress that the ability of having natural heterosexual intercourse and procreation to be the essential features of marriage, it has also recognises that there are different factors that would influence the determination of a person’s sex or gender. In other words, the ability to engage in natural heterosexual intercourse and procreation are not the defining factors of marriage, but only "factors relevant to the legal determination of the sex of a person for the purpose marriage". Through adding an intermediate step of "determining the sex of a person for the purpose of marriage" instead of using the factors to immediately determine the validity of the marriage, Athena Lui argues that this allows a broader legal definition of marriage. 
 
However, even with this interpretation, the definition of marriage is still limited by the definition of "man" and "woman" in section 40(2) of MO, and "male" and "female" at section 20(1)(d) of the Matrimonial Causes Ordinance (“MCO”) (which provides that a marriage is void if "the parties are not respectively male and female"). Hence, the case of W was held accordingly. Yet Athena Lui argues that this had not necessarily been a restriction. The Court had had a chance to develop beyond Corbett. Quoting Mr Lyon MP, the promoter of the English Nullity of Marriage Act 1971, he said that "the way that a judge decides the sex of a particular person is and always will remain a question of fact…If medical opinion were that the mere sex change operation was enough to change a person from a man to a woman or a woman to a man, that would be the end of the case". Furthering this argument, through deliberately choosing the words "male" and "female" instead of "man" and "woman", it was commented in S-T v J that this is to allow room for the court to acknowledge the importance of gender.[10] Therefore, the Court, in light of these cases, was offered an opportunity to develop the law beyond Corbett in acknowledging the role that gender plays in marriage, yet disappointingly, it had not done so, but even went further than Corbett. 
 
Conclusion 

Athena Lui therefore argues that although W was following Corbett in most of its judgment, it had developed in a way that additional factors were added that narrows the definition of marriage without justification. The case of W offered an opportunity for the Court to review and develop the law forward, yet the Court chose to go for a regressive step. The case therefore exposes a need to update the marriage law in light of the situation of the 21st Century. 
 
Epilogue  

This judgement reflects that the Court is often passive or even conservative in pushing for the minority rights. Although the Court was offered an opportunity to expand the marital right of transsexuals, it had taken a conservative path, and even further restricted the marital rights of the transsexuals, which is quite disappointing. However, it is encouraging to see that when the Court of Final Appeal handles this case, it allowed the appeal for W, demonstrating the Court’s ability and determination in affirming minority rights in Hong Kong. 
 
[1] W v. The Registrar of Marriages [2013] HKCFA 39 
[2] Liu, Athena. "Exacerbating Corbett: W v Registrar of Marriages". 41 HKLJ 759. Page 1 
[3] Hyde v Hyde (1866) LR 1 P & D 130  
[4] Corbett v Corbett p 106 
[5] W para 116 
[6] Weatherley v Weatherley [1947] AC 628  
[7] Baxter v Baxter [1948] AC 274  
[8] Hyde p 133 
[9] Jackson, Joseph. The Formation and Annulment of Marriage, Second edition, Butterworth (1969), p 129.  
[10] S-T v J [1997] 3 WLR 1287