What happens if a married (or separated) person changes gender? Is it possible to avoid a divorce even after the anagraphic rectification of one of the transsexual spouses has been completed?
These are key questions that many have been asking recently. Until a few years ago, it was thought that a gender transition path could be undertaken only by adolescents and young people, either single or engaged, with gender dysphoria.
But in reality, an increasing number of people who are married or separated (by consensus or judicially) are consulting my law firm in order to change gender in Italy.
Married people who have chosen to start their personal transition path can generally be divided into two groups:
- Those who even prior to marriage have perceived gender dysphoria, but, for various reasons (fears, insecurity, social environment), did not have the strength to start their transition process. Therefore forcing themselves to accept the social conventions that gave them the path of union between man and woman as the only choice.
- Those who after marriage begin to perceive a discrepancy between their biological sex and gender identity felt within.
I am lawyer Gianluca Piemonte and for many years I have been supporting my clients with legal assistance during their MtF and FtM transition paths.
In this article, I am going to talk to you about what exactly the effects of gender change for those who are married or separated consist of. I will also talk to you about how to form a civil union in order to avoid a forced divorce.
In particular, I will explain to you in the easiest way possible what the law provides all while giving you practical examples.
But first, it is necessary to talk to you about some premises that will make you understand the subject better.
An introduction on marriage and civil union in Italy
Italy is among the few countries to recognize civil union. However there are more countries that recognize same-sex marriage
The Italian law stipulates that marriage can only be celebrated between people belonging to different sexes (man and woman). A marriage between two people of the same sex (homosexuals) is therefore not possible in Italy.
However, the recent Cirinnà law on civil union aimed to protect the union between homosexual people. With civil union, the legal status of a civilly united couple is very similar to that of a married couple.
For example, in the event of marriage, one spouse can inherit the heritage of the other deceased spouse. Similarly, even in the event of a recognized civil union, it is possible to inherit the heritage of the other partner. These rights, of course, were not recognized before the Cirinnà law, so the link with the other partner had no legal significance prior to this law.
Now that we have looked further into this premise, let’s move on and analyze the consequences in the event of a anagraphic sex rectification.
What are the effects of gender change?
In another article of mine, I talked about the entire legal process for changing gender, which can be summarized as the following:
- Psychological path, during which a gender dysphoria diagnosis is obtained
- Hormonal therapy
- Action in court with the assistance of a lawyer
- Verdict ordering sex rectification (FtM or MtF) and the change of name
Up until a few years ago, the sentence produced only one effect: the complete dissolution of the marriage (i.e. an imposed divorce). This obviously was a problem for all those couples in which one of the spouses had changed sex but still wanted to maintain the union with the other spouse.
Why was the so-called Imposed Divorce kept until 2016?
The reason why a married person who changed sex had to undergo an imposed divorce until 2016 is indicated in the Gender Rectification Act.
As a matter of fact, art. 31 of Law 150/2011 expressly provides that “The sentence of rectification of the attribution of sex determines the dissolution of the marriage or the cessation of civil effects”: i.e. divorce.
In the past, there was nothing in our power as lawyers that we could do in order to prevent a legal divorce. Just like the judges could do nothing more than to apply the law.
Why don’t all married transsexuals want an imposed divorce?
About 97% of the people who consult me for a legal gender-change process in Italy are:
- Unmarried (87%)
- Married, but separated by consensus or judicially from the spouse (10%)
This 90% still want to divorce the other spouse and take advantage of the sex rectification sentence which therefore produces 2 effects: gender change and divorce.
However, 3% of those who want to change their gender are married and, even as a result of the sexual change, still want to maintain a union with the other spouse.
As mentioned before, on the other hand, the Italian law does not allow 2 people of the same sex to be married. Therefore, the civil union is the only tool possible in order to allow them to maintain an emotional and economic union, just as if they were still a married couple.
What a law from 2016 law has predicted
The spouses must personally present themselves in front of the official municipal registrar.
Luckily, a law from 2016 (art.1, paragraph 27, law n.76 / 2016) stated that:
The automatic establishment of a civil union between people belonging to the same sex follows from the registry correction of the sex only if the spouses have expressed the will not to dissolve the marriage.
In order to express this will, art. 5 of DPCM n. 144/2016 establishes that:
The spouses must personally release a specific joint declaration to the civil status officer belonging to the Italian municipality where the marriage was originally registered or transcribed.
In summary, in order to avoid divorce and establish a civil union, the prerequisites are:
- Willingness to not dissolve the marriage
- Willingness to establish a civil union
- Express the declaration of both spouses to the civil registrar
How is the civil union established in Italy after the rectification of the MtF or FtM registry?
In order to do this, these are the steps to follow:
- The spouses, personally, need to show up together physically before the civil registrar of the belonging municipality
- The spouses need to declare that they do not want to dissolve the marriage
- The registrar notes that, following the sex-rectification of one of the spouses, both do not wish to dissolve the marriage and want to establish a civil union
In fact, the procedure to be followed can result into risks if it is not carried out with care and caution on behalf of the lawyer chosen for the sex-rectification process. As I will go further into detail later.
A Practical example in case you want to obtain a divorce
To get a deeper understanding, here is a practical case of one of the people I have supported (to whom, however, I will give fictional names).
Ludovico, married to Marta, decided to complete an MtF transition path and got a sentence authorizing him to change his gender and name to Ludovica. However, Ludovica no longer wanted to continue the relationship with her spouse Marta. In this case, along with Ludovico, we filed an appeal in court for the gender change but we did not make any other requests regarding marriage. As a result, the sentence was transmitted to the municipality of birth and the registrar noted the gender change, the name change and also the dissolution of the marriage.
Basically, it is as if the registrar had also received a divorce decree, to be noted in the registers of the municipality.
Practical example in case you want a civil union
On the other hand, let’s take the case of Mario as an example, married to Chiara, who also got a sentence authorizing him to change his gender and name to Marina. In this case, however, Marina wanted to establish a civil union with Chiara, with whom she wanted to continue to maintain an emotional and economic union. Therefore, Marina and Chiara personally declared (together) before the registrar of the municipality that they wanted to establish a civil union following the rectification of Marina’s sex.
However, this step is a very delicate one and, an error during the procedure, could create a very serious bureaucratic mistake. As a matter of fact, it may occur that, in case the procedure is not carried out carefully, that the registrar may also note the dissolution of the marriage (even if not requested by the spouses).
Later I will explain why the lawyer who follows this procedure must have expertise and experience in similar cases, to avoid very serious mistakes that can only be remedied with another long trial against the Municipality.
Because in case of a married person, specialized legal assistance is required
Unfortunately, the cases of sex rectification are not so frequent and even less are the cases of married transsexuals.
This often occurs when:
- A spouse changes sex and would like to convert the marriage into a civil union
- The sentence, however, is automatically transmitted by the court to the municipality
- Upon receipt of the sentence, the registrar immediately notes the change of sex along with the dissolution of the marriage
- Subsequently, the spouses present themselves physically within the municipality, as required by law, to declare that they desire to establish a civil union. But only then, does the registrar reply that “it’s too late!” And he has now noted the dissolution of the marriage …
In order to avoid this very serious mistake, the Italian lawyer assigned to the transsexual who wants to pursue sex-change must use a precise procedural and bureaucratic strategy:
- In the summons, [… confidential text …] must be written
- At the first hearing, the lawyer must [… confidential text …]
- With supplementary memorandum, [… reserved text …] must be written
- The PQM must contain [… confidential text …]
- The Municipality must receive [… confidential text …]
- The spouses must [… confidential text …]
As you may understand, I cannot write the procedural strategy entirely here and may apply it only with my clients.
There is no denying that a slight imprecision within this procedure can result in huge damage. In fact, it is not easy to correct an annotation on an incorrect civil status document and you will have to go back to court for a new trial, in order to correct the wrong document. Furthermore, on a bureaucratic level, this would result in huge inconveniences, while waiting for the error to be corrected (even years), and the Italian Public Administration and Revenue Agency would register the divorce (even if it was not requested).
Conclusions on sex rectification of married or separated people
In this article you have therefore learned that:
- A married transsexual may change gender
- You can choose whether to divorce the other spouse or transform the marriage into a civil union
- In case you desire to get a divorce, it is not necessary to make any particular requests in the sex rectification process, but it is always convenient to obtain the assistance of a specialized lawyer (sex change is not a routine process and can also end with a defeat)
- In case you do not desire to divorce and would like to establish a civil union, on the other hand, it is necessary to expressly declare (together with the other spouse) that you do not want to dissolve the marriage. For residents abroad, the annotations will also take place at the AIRE.
In conclusion, I explained to you that the sex rectification of a married transsexual must be handled by an Italian lawyer with particular attention, in order to avoid irreversible errors when arriving to the moment of votes. As a matter of fact, it is possible for a divorce to be ultimately voted for despite the spouses wishing to establish a civil union. Culminating in the necessity to repeat another process within the Italian municipality in order to remedy this error.
I am an Italian lawyer specialized in the legal process for changing gender and have already helped a large variety of people to complete their very own transition process, whether with the request for divorce or civil union.
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