The Cost of Gender Reassignment Surgery to be Shared on Divorce

During the proceedings both parties made a number of allegations and the court was tasked with determining issues surrounding conduct, jurisdiction, family loans and arrears of maintenance. A further issue concerned the cost of the respondent’s gender reassignment and how this should be dealt with when dividing the assets. In this article, we focus on this latter issue.

Facts of the case

The parties met in London in 1998. At that time the respondent was a biological male. They commenced cohabitation in 1998 and married four years later in 2002.  

The parties went on to have two children together, both of whom were adults by the time this matter came before the Court.  

In 2022 the respondent advised the applicant that she identified as a transgender woman and would be commencing hormone therapy to transition from male to female. The applicant issued divorce proceedings shortly thereafter.

The applicant’s case can be summarised as follows:

• The respondent informed her ex of her intention to transition to a woman in 2022.  Prior to that the applicant was not aware etc.
• The respondent’s desire to transition was a “devastating surprise” which ultimately led to the breakdown of the marriage.
• The respondent showed a complete disregard for the applicant’s feelings etc.
• The cost of the respondent’s gender reassignment surgery (estimated at £160,000) should come out of her share of the assets, and the applicant should not have to pay half from her share of the matrimonial funds.
• In a statement filed by the applicant she stated that the respondent “is not seeking to fund the surgery from the sale of her own assets.  She wants me to use my share of the matrimonial funds being held by solicitors to pay for this and I object.  If the respondent wants to have this surgery, then that is her choice, but it must be paid for from the respondent’s own funds, so once the matrimonial assets have been divided, or from her non matrimonial funds, but not from joint matrimonial funds before they have been divided.”

In contrast the respondent’s case can be summarised as follows:

• The applicant was aware that the respondent was a trans person prior to the marriage.
• Prior to surgery the respondent was experiencing gender dysphoria and suicidal ideation
• The respondent had the full support of her counselling and medical team and satisfied all the criteria for gender affirming surgery which includes psychological assessment and living in the identified gender
• The costs of the gender reassignment surgery should be met from the joint assets and treated in the same way as any other medical expenses.
• In evidence the respondent stated “You marry a trans person. You live with a trans person. You benefit from a trans person. They are suicidal and you support them.” 

Judge’s findings

His Honour Judge Farquhar found that:

• The costs of gender realignment surgery were a legitimate healthcare need.  Such costs could not be considered as conduct.  Nor could they be added back into the “pot” on the basis that the expenditure was “wanton or reckless”.  Rather they were akin to any other medical treatment needed.
• The reasons for the breakdown of the marriage were irrelevant as far as the financial remedy proceedings were concerned.
• The respondent’s surgery was meeting a genuine and deep felt medical/psychological need and as such it was reasonable for money to have been spent meeting that need out of joint resources.
• As an aside, the parties agreed a clean break settlement but in terms of income the judge accepted that having previously generated a very substantial income operating in private equity and consulting, it was unrealistic to expect the respondent to return to that world and maintain that level of income.  Rather, working for herself as a massage therapist and a qualified Reiki practitioner was the most likely way forward.

The applicant received £1.6m and the respondent £1.3m.  Both retained their non-matrimonial property and the court found that each party could meet their future needs from their respective shares.

Summary

The above case highlights the very human complexities which can arise in financial remedy cases, where the court is compelled to deal not only with facts and figures but with real people, their emotions and the lasting impact proceedings can have on their lives.   

It is important to acknowledge the financial and emotional strain this case placed on the parties involved.  Between them they spent more than £925,000 in legal fees, against an asset base in the region of £3m.  This prompted the judge to describe the litigation as “ruinous for the parties”.  

Whilst this case may not have been a “big money” case, the assets involved were significant.  This leads the writer to question whether the outcome would have been markedly different in a “needs” case where the resources available for division are limited.