Law Report: Homosexual couple can be members of a family

A SAME-SEX partner was capable of being a member of the other partner's family for the purposes of paragraph 2(2) of Schedule 1 to the Rent Act 1977 as amended.

The House of Lords (Lord Hutton and Lord Hobhouse dissenting) allowed the appeal of Martin Fitzpatrick against the decision of the Court of Appeal that he could not succeed to the tenancy of a flat upon the death of the original tenant, with whom he had lived in a homosexual relationship.

The appellant had lived with a Mr Thompson, who was the original tenant of a flat of which the respondents were the freehold owners, from 1976 until Mr Thompson's death in 1994. They had been partners in a longstanding, close, loving and faithful, monogamous, homosexual relationship.

After Mr Thompson's death, the appellant sought a declaration that he had succeeded to the tenancy of the flat under the Rent Act 1977 as amended by the Housing Act 1988. He claimed that he was a "spouse" of Mr Thompson within the terms of paragraph 2 of Schedule 1 to the Act in that he had been living with him "as his wife or husband", or alternatively that he was a member of Mr Thompson's family within the terms of paragraph 3. The judge held that the appellant could not succeed to the tenancy under either of the ways in which he put his claim, and the appellant's appeal to the Court of Appeal was dismissed by a majority.

The appellant appealed, contending (i) that "spouse" was to be interpreted in the present climate as including two persons of the same sex intimately linked in a relationship which was not merely transient and which had all the indicia of a marriage save that the parties could not have children; and (ii) that the intimacy of the relationship of two persons living together as he and Mr Thompson had been was such that they should be regarded as constituting a family.

Nicholas Blake QC and Jan Luba (Wood & Awdry) for the appellant; Vivian Chapman (Belvederes) for the respondents.

Lord Nicholls said that the appellant did not fall within the extended meaning given to "spouse" in paragraph 2(2) of Schedule 1. The surviving spouse of the original tenant was the person to whom the original tenant was married when he or she died. Paragraph 2(2) extended that to include persons who conducted themselves as husband and wife although they were not married. Marriage, spouse, husband and wife were all terms connoting a relationship between a man and a woman, that is, between persons of the opposite sex. A husband was a man and a wife was woman. They were, in the present context, gender-specific words.

The courts had rightly given a wide and elastic meaning to family in the present context, because the legislation would fail to cover the whole of the target intended to be protected if family were given a narrow or rigid meaning.

The question falling for decision in the present case was whether a same- sex partner was capable of being a member of the other partner's family for the purposes of the Rent Act legislation.

There was no doubt that that question should be answered affirmatively. A man and woman living together in a stable and permanent sexual relationship were capable of being members of a family for that purpose. Once that was accepted, there could be no rational or other basis on which the like conclusion could be withheld from a similarly permanent and stable relationship between two men or between two women.

Where sexual partners were involved, whether heterosexual or homosexual, there was scope for the intimate mutual love and affection and long-term commitment that typically characterised the relationship of husband and wife. That love and affection and commitment could exist in same-sex relationships as in heterosexual relationships. The concept underlying membership of a family for present purposes was the sharing of lives together in a single family unit living in one house.