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'Over the last 50 years, the way that the courts have defined family has changed dramatically. Following the criteria that the House of Lords set out in Fitzpatrick v Sterling Housing Association [2001] 1 A.C. 27, Polyamorous units and "families of choice

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Introduction

'Over the last 50 years, the way that the courts have defined family has changed dramatically. Following the criteria that the House of Lords set out in Fitzpatrick v Sterling Housing Association [2001] 1 A.C. 27, Polyamorous units and "families of choice" should now be legally recognised Critically discuss. In the last fifty years the courts definition of family has changed significantly. This process has been slow and progressive in nature, evolving from a restrictive narrow definition of family, to recognition of diversity within the family arena. Thus Fitzpatrick v Sterling Housing Association 1 was herald a successful expansion to the definitional boundary of family membership, by formulating a 'functional judicial interpretation'2 for the purposes of the Rent Act 1977. Through this the courts took into consideration the position of a same sex couple and reasonably constituted them as family. However, if now we were to apply the criteria set by the House of Lords in the above case to consider whether "families of choice" i.e. self identified network grouping of friends and lovers3, 'polyamorous units' 'all forms of multi- partner relationships'4 should now be legally recognised, undoubtedly it would prove to be a contentious issue for the courts, since they are still embedded on the notion of the traditional 'Nuclear' family5 and have only recently legally recognised same-sex families. Although it appears that through the granting of same-sex relationships to be constituted as "family", indicates the courts embracing diverse family forms moving away from the view of the nuclear family. However following the criteria under Fitzpatrick it seems these two specific forms of family lifestyles choices will become an increasingly problematic issue for the courts. For instance as the functions of these families becomes harder to determine, on who will gain succession of tenancy, for the purpose of the Rent Act 1977, defined under schedule 1 Paragraph 2 as 'a surviving spouse' of the original tenant, this definition has now been extended to include 'a person who was living with the original tenant as his or her wife or husband,' or Paragraph 3 a family member of the original tenant6.

Middle

Law is produced for the universal benefit of society, not to cater to the whims of individuals deliberately deciding to manipulate and undermine the stability the law was designed to create. Nevertheless if paragraph 2 does not apply it is to assess whether 'polyamorous units' and "families of choice" can fall under the criterion of 'member of original tenant family." In order to deal with this "families of choice" and 'polyamorous units' will be looked at separately for both have differing factors to consider if they should obtain legal recognition now. Whether "families of choice" should be legally recognised is of a different matter. A 'product of unfettered creativity'30combining a network of friends, lovers and children not grouped has not been allowed in case law also previous case law suggests that the position of those in a non- sexual relationship was not directly relevant, it asserted that non-legal platonic relationships would have difficulty in being recognised as family'. For example in Ross v Collins 31 it was held that; 'to strangers cannot it seems to me, ever establish artificially......a familial nexus by acting as brothers and sisters, even if they call each other such and consider their relationship to be tantamount to that.' It is understood from this case that the courts will not allow again this commercial advantage in relation to succession of statutory tenancy. This decision is difficult to disagree with since the defendant was a housekeeper and referring to each other via Christian names does constitute one to become a member of the original tenant family. It is the objective criterion of an 'intimate relationship' that needs to be proved for the possibility of "families of choice" becoming legally recognised thus seems in order to qualify as family you must produce the quality of 'intimate relationship' even though there is no single definition as to what an intimate relationship is. So it seems that "families of choice" will always be stigmatised for it would seem that platonic relationships can no way show proper intimacy and therefore cannot be held as members of each others family.

Conclusion

Family Ties; A Comparison of the changing legal definition of family in succession rights to rent -regulated housing in the United States and Great Britain (1991)17 Brook.J. Int'l L 123 22Glennon 'Fitzpatrick v Sterling Housing Association Ltd -An Endorsement of the Functional Family, (2000) 14 Int'l J.L Pol & Fam 226 23 Sanderland, Ralph 'Not Social Justice: The Housing Association, The Judges, The Tenant and His Lover' (2000) Feminist Legal Studies 8: 227-239 24 Ibid at 232 25 [1976]QB 503 26 Bates, Frank, Does the family have legal functions 1 Canadian Journal Family Law (1978) 476 27 The Housing Act 1988 section 39(2) and paragraph 2 of Part 1of schedule 4 28 [2004] UKHL 30 29 Ibid at 30 Weston, Kath. Families we choose, Lesbian, Gays, kinship (1991) New York Columbia U.P. 31 [1964] 1WLR 425 32 [1979] 1 WLR 3 33 Glennon Lisa 'Fitzpatrick v Sterling Housing Association Ltd -An Endorsement of the Functional Family, (2000) 14 Int'l J.L Pol & Fam 226 34 [1987] 20 HLR 124 35 Fineman, Martha The Automny Myth, Theory of Dependency (2003) New York Press 36 Weeks, Heaphy and Donovan. Same sex and intimacies, families of choice and other life experiments. (2001) London Routledge 37 Ibid at 10 38 Eekelaar John, Family Law: The Communitarian Message, Oxford journal of legal studies Vol 21 No.1 181-192 39 Glennon, Lisa 'Fitzpatrick v Sterling Housing Association Ltd -An Endorsement of the Functional Family, (2000) 14 Int'l J.L Pol & Fam 226 40 Peter Stein and John Shand: legal values in western society, Edinburgh University Press, 1974 at 148 41 Lee Ryan, A marriage of many, http://www.southernvoice.com/2006/1-27/arts/feature/feature.cfm 42 Glendon, Mary 'The New Family and the New Property' 1981,Toronto Butterworths 43 Rook Deborah, 'freedom from discrimination' 44 S Strassberg.I.M 'The Challenge of Post- Modern Polygamy: Considering Polyamory (2003) Cap. U.L Rev 441 45 Bainham, Andrew Family Law in a Pluralistic Society, Journal of Law and Society Vol 22 (1995) 234 46 Ibid at 234 ?? ?? ?? ?? 94004677503H Word Count: 4250

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