Believe it or not - The Different-Sex Marriage That Wasn't

A California appeals court has affirmed a ruling by the San Bernardino County Superior Court that a woman who thought she was married to a man, but later discovered that she was not, could not use a legal doctrine to claim a spousal interest in the family home that had been purchased in her "husband’s" name. The August 15 ruling also upheld Superior Court Judge John M. Pacheco’s decision to annul the marriage.  In re the Marriage of Joy and John R., 2007 WL 2323349 (Cal. App., 4th Dist.) (not officially published).

Writing for the court, Presiding Justice Manuel Ramirez succinctly described the case this way: "Joy H., also known as Joy R. (hereafter Joy H.), filed this action to annul her 14-year marriage with Tammy C., who also was known as John R. (hereafter Tammy C.) Tammy C presented herself as a male, but was a biological female who had never had a ‘sex change.’ Because Joy H. believed that she had entered a valid marriage with a man, she contends that she qualified as a putative spouse and had community property interest in the family home, which was purchased in Tammy C.’s name. The trial court granted the annulment pursuant to the parties’ stipulation, but rejected Joy. H’s argument concerning her interest in the family home." In a footnote, Justice Ramirez explained that the court was going to refer to the parties by "their legal names prior to their union," presumably because the annulment means that the marriage is to be treated as if it never existed.

Behind this straightforward fact recitation lies a strange tale.

According to the opinion, Joy and Tammy (who presented herself as "John") met while both worked for a security company, formed a romantic relationship and lived together for about six months before they married. Joy had been previously married, and Tammy had been living with a former girlfriend. In May 1988, Joy and Tammy obtained a marriage license and had a wedding ceremony attended by family and friends. Tammy was using an identification card with the name "John" that she had obtained in Arizona. After they married, Tammy informed Joy that Tammy was sterile so they needed to use donor insemination if they wanted to have children. One of their co-workers donated sperm and Joy became pregnant after several attempts at insemination, bearing a daughter in 1989.

"Although the parties had a sexually active relationship," wrote Justice Ramirez, "Joy H. maintained that she did not know that Tammy C. was a biological female. According to Joy H., Tammy C. was self-conscious about her obesity and did not permit Joy H. to touch or look at her during intercourse. Tammy C. used a silicone dildo. At some point, Joy H. found a two-headed dildo in the garage and asked Tammy C. about it. Several months later, Joy H. found another dildo in the garage and again confronted Tammy C. Although Tammy C. initially told Joy H. that she was a male who had a transgender operation, she eventually admitted that she was a biological female who had not had an operation."

The two separated when their daughter was three years old, but reunited after seven weeks when Joy H. decided they should stay together for the child’s sake. Eight years into the marriage, they decided to buy a house. The house was purchased in Tammy C.’s name "because Joy H. was receiving welfare and property ownership would have affected her benefits," according to the court, noting that "Joy H. signed an interspousal transfer deed" that was necessary to avoid having the property attributed to her for benefits purposes. After living together in the house for three years, they separated in July 2002.

Shortly after the separation, Joy filed suit seeking a formal end to the marriage on grounds of fraud and incapacity. Joy and Tammy then negotiated an agreement that was submitted to the court, agreeing that their marriage was invalid and should be annulled and agreeing about the custody and visitation arrangements concerning their teenage daughter, but they could not agree on the issue of ownership of the property, Joy arguing that since it was acquired during the "marriage" she should be entitled to a half-interest under California’s community property laws.

The trial judge, John Pacheco, decided that since Joy admitted that she knew Tammy was a woman before they bought the house, she could not have believed that she had a valid marriage at the time it was purchased. The "putative spouse" doctrine, which Joy was relying upon, is intended to treat somebody as a legal spouse when they could reasonably have believed that they were validly married, even though through some technicality of the law their marriage was invalid.

Approving Judge Pacheco’s ruling, Justice Ramirez pointed out that "in order to succeed in claiming putative spouse status, Joy H. must show that a reasonable person would have believed that she was married to a man although her partner was a biological female. It is inconceivable that Joy H. was unaware that Tammy C. was a biological female. They had lived together for about six months prior to marriage. During that time, they regularly engaged in sexual intercourse. Although Joy H. testified that she was unable to see Tammy C.’s genitalia because of the lighting and Tammy C.’s obesity, the court reasonably found that Joy H.’s testimony lacked credibility."

Ramirez pointed out that there was plenty of evidence in the trial record to suggest that Joy’s testimony to the court was simply incredible. Among other things, Joy acknowledged that other people referred to her "boyfriend" as Tammy, that paychecks were made out to Tammy, and that during a confrontation with Tammy’s former girlfriend, "the former girlfriend informed Joy H. of Tammy C.’s real gender. While Joy H. claims that she rationalized away these obvious clues," continued Ramirez, "this evidence supports the court’s finding that Joy H. knew or should have known that Tammy C. was a biological female."

But the point that perhaps clinched it for the court was Joy’s testimony about their sexual activity. "Joy H. testified that, during sex with Tammy C., she occasionally grabbed the dildo and assisted Tammy C. with insertion. Joy H. had been married previously for about five years and regularly engaged in sexual intercourse with her former husband. She testified that she could not distinguish the silicone dildo from her former husband’s penis. The court found Joy H’s testimony to be incredible."

Ramirez pointed out that even if the court believed Joy’s testimony that she thought she was marrying a man, it was clear that within a few years of the marriage she had figured out that Tammy was not a man, and that they were staying together for their child’s sake. "Tammy C. purchased the property in Redlands in 1999, several years after Joy H. allegedly discovered that her sexual partner was a biological female. Therefore, by the time that Tammy C. purchased the house, Joy H. knew that she was not in a valid marriage." Consequently, she could not claim the benefit of the putative spouse doctrine for the purpose of claiming an ownership interest in the property.

However, the court found fault with Judge Pacheco’s refusal to consider ordering Tammy C. to pay child support. In light of recent California precedents, although the parties were not spouses, Tammy C. could be considered a de facto parent of the child. Although the parties had not agreed on child support in the stipulation that they submitted to the trial court, it was the court’s duty to make sure that the child was adequately supported, so the case was sent back to Judge Pacheco to determine whether Tammy should be required to pay.

The court mistakenly issued two opinions simultaneously, one using the real names of the parties, the other using first names and initials.  Assuming that the court did not intend to release the full names of the parties, in order to protect the privacy of their daughter, I have used the first names and initials in this summary of the case.