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Divorce law: Widowed transsexual to have marriage voided

A recently widowed transsexual woman, in Texas USA, is battling her mother-in-law over her late husband's estate.

Nikki Araguz, who was born a man, is to have her marriage to fire-fighter Thomas Araguz II voided after her mother-in-law, Simona Longoria, argued that the marriage was not legal under Texas law where same-sex couples are not allowed to marry.

Mr Araguz died recently fighting a fire and has left an estate worth $600,000. His mother and ex-wife, Heather Delgado, hope the inheritance will go to Thomas Araguz's two sons from his marriage to Delgado.

They claimed that Mr Araguz had been shocked to learn that his wife was transsexual shortly before his death and that he had moved out of home and planned to end their marriage.

But Mrs Araguz said that her husband knew about her gender history and that he had been with her throughout the gender reassignment surgery, which happened two months after their marriage in 2008. She also attempted to prove in court that she was medically and legally female and that her marriage was also legal.

However, a reported draft order of the ruling indicates "that any marriage between Thomas Araguz and Nikki Araguz was void as a matter of law". The judge will rule that Thomas Araguz "was not married at the time of his death".

During the hearing, Ms Delgado's lawyer cited Texas law which states that chromosomes, not genitals, determine gender. He also pointed out a precedent in which a woman's marriage was considered unlawful since her birth certificate showed she was a man.

Mrs Araguz did not change her birth certificate until after her husband's death.

She has not commented on the draft order but, prior to the case, she and her lawyers said they were willing to appeal to the Supreme Court.

In the UK, the Gender Recognition Act 2004 means that transsexuals are legally recognised for their acquired gender and they are allowed to marry legally.

To file for divorce in the UK, it may be possible to cite unreasonable behaviour if a partner changed gender during the marriage (and in Scotland there is a specific ground for divorce for transsexual gender recognition). But if the marriage took place after a gender recognition certificate has been issued, the transsexual person would be treated as being whatever gender they have acquired.

Related links:
Read more on this story (Houston Chronicle)
Read about grounds for divorce (FindLaw)
Find local divorce solicitors throughout the UK (FindLaw)