'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

Yet this was not the view of the courts  hence the decision in Harrogate Borough Council v Simpson in this case a surviving partner in a lesbian relationship unsuccessfully sought succession to secure a tenancy of a local authority letting. The court of Appeal held that the expression ‘living together as husband and wife’ did not include a lesbian relationship. The courts supported this by reaffirming their views that if parliament had meant the statute to be interpreted to recognise a homosexual couple, it would plainly state so. Precisely the reason of the dissenting decisions in Fitzpatrick case. However it is reasonable to suggest that the Fitzpatrick case transformed the courts perception; indeed it would seem encouraging for “families of Choice and ‘Polyamorous units’ to be now given legal recognition for it was shown in Fitzpatrick that the character of the relationship displayed ‘sufficient state of permanence and stability.’ It is this primary function in which ‘polyamorous units and “families of choice will be judged. Legal recognition of same-sex families has paved he way to a slippery slope of open doors and it would be right to say that it would not be difficult to justify other types of relationships.  The problematic issue is the criteria set by the House of Lords to see whether these specific family forms given can fall into the ambit of ‘spouse’ or ‘member’ categories for succession of tenancies. Although each have differing factors the question is does ‘polyamorous units’ and “families of choice” fit the spouse category within the meaning of paragraph 2 of schedule 1 to the 1977 act.

It is the connotation of ‘spouse’ which has proved debatable within the courts. It is the gender-specific words ‘man’ and ‘wife’ that did not allow Mr Fitzpatrick to succeed under the consideration as family. Therefore how would “families of choice” and ‘polyamorous units’ be legally recognised. Understandably it is fair to say in reality the ordinary man perception of the courts definition of family is an identification that is universal and reflected within society. For it is seen to be ‘basic unit of social organisation and ideal form of family life. ’  Indeed it cannot be disputed that parliament adopted a gender specific stance within the context of the Rent Act. Therefore the courts were duly obliged to interpret ‘living as wife or husband’ to recognise heterosexual couples to rule otherwise would be usurping legislative function. These ideals were confirmed within Fitzpatrick, yet Ralph Sanderland purports it is then a matter of considering whether ‘as’ implies a functionalist definition because surely ‘living as’ is more a matter of ‘doing’ than ‘being’? In this approach polyamorous units and families of choice would fulfil the definition in terms of living together as husband and wife in the context of family since he or she sharing responsibilities, aspirations, and so on in a permanent loving relationship, could be classified as such whatever the gender of the parties. 

Even so as the courts recognised in Dyson Holdings Ltd v Fox to have enlarged the meaning of the expression family in the Rent Act. Adams criticises the spousal family and suggests that families can attain most of their internal functions without reference to someone identified as a father/ husband that a dyadic structure is the basic unit rather than the nuclear family. It therefore seems possible in this sense for the courts to legally recognise polyamorous units and families of choice. Although to eliminate families that have this husband and wife structure is not necessarily a bad thing, bearing in mind the main issue surrounding Fitzpatrick was the unacceptance of a widened scope of spouse. Yet if we were to widen this scope, spouse families of choice cannot be applicable. For it is the reason that living as husband and wife cannot be identified within this area, that the idea of agreements between friends lacks the sufficient intention to create legal relations and cannot constitute them as family, while polyamorous units on the basis of multi partnering does not achieve the sanctity of a one man and one women relationship neither satisfying the necessity of proving stability.  It is the strictly formed word ‘spouse’ that indicates the courts are not in favour of manipulating legislation to give effect to unjust enrichment of a commercial advantage, by disfavouring landlords, and housing associations. Although the progressive approach of the courts to a particular term is an indication that further development is permissible, hence extending the provision of a person who was living with the original tenant as his or her wife or husband which makes us refer back to the argument proposed by Sanderland. But the fact that parliament left the phrase undefined perhaps is indicative of an intention to avoid a narrow meaning, hence preserving the primacy of parliamentary function. This then raises the question as to the rationale behind specific and narrow judicial comments surrounding the interpretation of “spouse”It is out of this that one infers the notion that the law no longer shapes society is spawned; that the intentions of parliament are out of date and need be updated to favour polyamorous units and families of choice.

Hence the decision in Ghandian v Mendoza which the defendant was given a right to tenancy agreement by injecting “anti-discriminatory” impulse into the law of housing enabling the courts to be under the influence of Human Rights thinking. Thus the courts relying on the powers of under section 3 of the Human Rights by interpreting the wording of the 1977 Act “as his or her wife or husband” to mean “as if they were his or her wife or husband.” It is this effectiveness that could enable “families of choice” and ‘polyamorous units’ to now be legally recognised as the operation of the Human Rights Act readily gives the “green light” to the courts to “read and give effect in way which is compatible with convention rights” resolving ambiguities in legislation. It is the protection of Article 8 and Article 14 which courts now need to consider “families of choice” and ‘polyamorous units’ .As it stands the spouse definition should not be overly extended lest society lose a large part of its foundation for creating coherence, stability. The opening of ‘multi partnership relationships’ dishonours the spousal definition by removing the unique aspect of been a spouse). Grouping of friends, lovers can only be seen as a mere convenience; spouses are not convenient but internally a lifetime partnership. 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’combining 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  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. Hence in Joram Developments Ltd v Sharrat a twelve years relationship between a seventy five year old widow and twenty four year old man to form a family unit in the absence of a sexual relationship were not family. Yet under Fitzpatrick the courts re-evaluation by society of its attitudes to same sex partners had been widely acknowledged, why then is it not possible to acknowledge platonic relationships. Even more so from analyzing, Fitzpatrick it is clear from the majority that when defining family membership under the rent act it is necessary to give effect to the purpose of the legislation. It follows the extent of protection envisaged by the legislature demands that the family bond is not limited to blood, marriage or adoption provided that the relationship has permanence and stability.  However, obscure discretion leaves the unnatural family ignored and stigmatised the question poses if it’s not family what is it? One could therefore make a case for this void to be sufficiently filled by the judicial system otherwise many people may find them falling through the cracks of justice for which they may have manifestly earned.  In Stefton Holidings v Cairns it was held two women who lived as sisters could not be constituted as family. The courts felt a distinction should be drawn from being a member of the family and living as a member of a family. Here the analysis of Martha Fineman perspective of the notion of family should rest upon a mother-child relationship this dependency model shifts the framework of family away from sexual relationship in realization that this form of dependency is inherent in human nature and the care-taking of inevitable dependents such as children/elderly/disabled

family members shows the care-taking society produces good for the larger society. So the law should protect women (and sometimes men) who are put in a vulnerable position because of the caretaking labour they do for other people.  Caring for others makes you vulnerable in the sense that you yourself then become dependent on others for financial resources.

So the courts apply a controversial system of determining membership of family in relation to “families of choice” it resides on its technical legal answer based on formal law, which may always exclude stigmatised relationships. Yet ignoring the flexible, and varied strong nature of networks of friends and lovers.  When looking at the case law it seems that most of the cases were to deal with those who were neglected, on their own who needed company, families of choice therefore provide a framework of mutual care, responsibility and commitment for many non-heterosexual people and indeed many heterosexuals aswell. It is to this acknowledgment that academic Milton Regan had become increasingly aware of a society that was becoming unstable, alienated and selfish and rallied for a communitarian values he recognised how the law emphasis is on the individualist paradigm of ‘detached identities’ favouring ‘nuclear family’ lacking the recognition of commitments people often undertake in personal relationships. It would be unwise under this criteria of ‘being a member of original tenant’ for families of choice should now be legally recognised hence forth the purpose of legislation is the protecting of those who share a home as a family and the ‘diverse ways people, in a multi cultural society can now live together in family units’ is accepted, then drawing the familial boundary which excludes platonic relationships, however permanent, clearly thwarts legislative objective.’ Yet the ‘degree of permanence and stability’ has become recognised as an essential test which are evident in relationships, although this is not deemed sufficient as the courts scrutinise relationships and fear that some are wanting that security of succession. The fear that family becomes a view of commercial advantage was noted by Stein and Shand who suggest that; the law represents the three basic ideas of order, justice and personal freedom and stands liable to be publicly criticised if something happens which suggests that it is deficient in any of them.  It is to this recognition in regards to “Families of choice” the courts will always privilege certain forms and denies recognition and benefits to others. 

Indeed if therefore it is hard for “families of choice” to be legally recognised how much more would ‘Polyamorous units’ be accepted. The difficulty in this is can this type of relationships really happen in reality to be constituted as family. Polyamorous units can include heterosexual, gay and bisexual individuals who believe it is against their nature to have only one sexual and emotional lover.. As Glendon puts it the boundaries of the family unit becomes less open to the influences of kin and community and its membership become more fluid and relationships among its members more detachable and interchangeable. Ideally this cannot be compacted into the legislation because it does not fall within the statute therefore legal recognition would be harder. Again it further indulges the court to continue in its strong views of the natural nuclear family and to uphold the sanctity of it. Could Lord Hutton be right in not accepting the appeal bought forward by Mr Fitzpatrick, His lordship felt that to allow a homosexual relationship to constitute as a family relationship within the context of the Rents Act ‘could have considerable implications for the social life of this country and in other spheres of the Law.’ If allowed to be considered as family are we not allowing such behaviour that would be encouraging sexual immorality making society to sink into a territory of sexual diseases. The problem with polyamorous units is if it was legally recognised it would be legalising sexual gratification. A selfish  nature and is in no need for the support of the courts, even more so how would a child grow up into a environment that is not stable. It is unsurprising that the purpose of Polyamorous units is to be flexible love as many to fulfil each ones desire, love being the fundamental value. Yet when one single individual has a web of relationships, exclusivity to any one partner is clearly not promised how then can it be legally recognised since the freedom to be involved with others is a foundational premise of the relationship, how then can the courts distinguish who is a member to who’s family. Why should polyamorous units now be legally recognised when it limits there exclusivity of freedom to pursue any relationship. However in the context of membership to family there are increasing academics in favour of this new diversity in relationships. Andrew Bainham argues that the law should uphold and support a diversity of family arrangements,  In light of this Bainham adopts Joseph Raz theory who claims that we should have a legal recognition equal standing of stable and viable cultural communities existing in a society here polyamorous units. Liberal Multi culturalism would transcend an individualistic approach but would at the same time ‘recognise the importance of unimpeded membership in a respected and flourishing culture group for individual well-being’. This policy would ultimately require a redefinition of society which would no longer be seen in consisting of a majority and minorities but rather of a plurality of groups each of equivalent worth. If Raz theory is applied to the family the legal recognition of polyamorous units appear a broad acceptance of a diversity of family lifestyles and practices. So pluralism in the context of the family entails recognition of the equal worth of many different kinds of family arrangement. 

 

To conclude legal recognition for “families of choice” and ‘polyamorous units’ is far from being achieved. The problem lies in construing them as family. Although Fitzpatrick was a turn around of the courts perception of family it is unlikely for in this framework of the criteria set by the House of Lords to accept outside same- sex families although it is recommended in the case of “families of choice” for a wider scope for certain circumstances or even legislation that acknowledges these type of families. For the discretion of the courts in relation to determine succession of tenancy seem to be to harsh evidenced in some cases mentioned. However ‘polyamorous units’ it seems should not be given legal recognition it will take to much time in determining  who’s a member or spouse rather the courts should be left out of matters that will seem outrageous in determining an outcome even if it is breach of their Human Rights.

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