Marriage and Kids
Singapore prohibits marriage between persons of the same legal sex, but does not prohibit marriage by transgender persons per se (section 12 of the Women’s Charter (Chapter 353).
The sex of a person is presumed to be that which is stated in their identity card at the time of marriage. Singapore recognises that a person who has undergone a sex re-assignment procedure and has legally changed their sex shall be identified as being of their new legal sex.
Marrying after transition
The sex of a post-transition person (who has changed their gender marker) is assumed to be their new gender marker. A post-transition person can be married to another person of the opposite legal sex.
For example, a trans man whose identity card states ‘Male’ may marry a person whose identity card states ‘Female’ (whether cis or trans). He would not be able to marry a person whose identity card states ‘Male’ (whether cis or trans).
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Transitioning after marriage
Where a person transitions after marriage (or takes steps to transition) but does not change their gender marker, the marriage is unlikely to be affected.
Where a person transitions after marriage and changes their gender marker, it is arguable that the marriage should not be void. This is because the sex of the person is determined at the date of marriage.
However, there is a possibility that the marriage may be annulled if the person was intending to transition at the time of marriage and then legally transitioned shortly after, as was the case for one couple, as reported here in The Straits Times.
Should the marriage be annulled, the couple would lose the rights to tap into government policies for married couples. These may include HDB, CPF and tax rebates. Even if these rights were given prior to the legal gender change, they may not carry through to the time of activation.
As an example, say that a married couple wills their CPF to each other. One of them then transitions and legally changes their gender marker. If either spouse then passes away, their CPF may not be given to their spouse if the marriage is declared void.
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Protecting your spouse
(Adapted from the Human Rights Campaign)
It is critical that transgender people who are married become aware of their potential legal vulnerability and take steps to protect themselves and their spouse as much as possible. Transgender people who are married should certainly act accordingly and should not hesitate to exercise their rights as legal spouses, whether that be the right to file married tax returns, the right to apply for spousal benefits or the right to have children as a married couple. At the same time, however, it is also important to create a safety net for the marriage.
Although there are many benefits and protections that arise exclusively through marriage and cannot be duplicated through any other means, there are also some basic protections that can be safeguarded and secured through privately executed documents and agreements. At a minimum, a transgender person who is married should have:
- A will for both spouses;
- Lasting power of attorney in which each spouse designates either the other spouse or another trusted person to be his or her legal agent in the event of incapacitation; and
- A written personal relationship agreement including a detailed account of each spouse’s rights and responsibilities with regard to finances, property, support, children and any other issues that are important to the couple.
The agreement should also include an acknowledgment that the non-transgender partner is aware that his or her spouse is transgender to avoid any later claims of fraud or deception. Ideally, the couple should draft those documents with assistance from a lawyer and supplement them with any other legal planning documents that are appropriate for their specific circumstances.
With those basic documents in place, transgender people who are married can at least ensure that the spouses can inherit each other’s estates and retain control over their own financial and medical decisions, even if the validity of the marriage is challenged. In many cases, the safety net created by extra legal planning will never have to be used. In others, the presence of that extra protection will shelter the transgender person and his or her spouse from devastating emotional trauma and financial loss.
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Having your own children
If you are married to a partner of the opposite legal sex who is able to conceive, and your marriage is recognised under Singapore law, you will be considered a legal parent of the children.
There are no known cases yet of couples in which one spouse is transgender having been granted adoption rights in Singapore. If you know of someone, please email us at contact(at)transgendersg.com.
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