Succession by same-sex partner

Ghaidan v Mendoza (CA TLR 5 November)

A surviving homosexual male partner can succeed the original tenancy of his male partner on his death to become a protected statutory tenant as the ‘surviving spouse of the late partner’ under paragraph 2 of schedule 1 to the Rent Act 1977, as amended by the Housing Act 1988. The Court was required to revisit, in the light of the European Convention on Human Rights and the Human Rights Act 1998, the decision in the House of Lords of Fitzpatrick v Sterling Housing Association ([2001] AC 27). The court should, if it could, read the schedule so that its provisions were compatible with the convention rights of the survivors of same-sex partnerships. That duty could probably be discharged by reading the words ‘as his or her wife or husband’ in the authorities to mean ‘as if they were his or her wife or husband’. That wording achieved what was required in the present case, and did not open the door to lesser relationships, such as, for instance, sisters sharing a house or long-term lodgers. It is true that the words ‘husband’ and ‘wife’ were in their natural meaning gender-specific. They were also, however, in their natural meaning limited to persons who were party to a lawful marriage. Parliament, by paragraph 2(2), removed that last requirement. Parliament having swallowed the camel of including unmarried partners within the protection given to married couples, it was not for the Court to strain at the gnat of including such partners who were of the same sex as each other.