COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HARROGATE COUNTY COURT
(MR ASSISTANT RECORDER ZERMANSKY)
B e f o r e :
MR JUSTICE EWBANK
| COUNCIL OF THE BOROUGH OF HARROGATE
|MARY CUNNINGHAM SIMPSON
MRS DAVIES, instructed by J.V. Lovell Esq. (Harrogate), appeared for the Respondents (Plaintiffs).
Crown Copyright ©
LORD JUSTICE WATKINS: This is an appeal against a decision of Mr Zermansky sitting as an assistant recorder in the Harrogate County Court on 20th July 1984 when he ordered that the plaintiffs were entitled to recover possession of a dwelling-house called No. 16 Kennion Road, Harrogate, and that the defendant pay to the plaintiffs the sum of S376.99 for rent and mesne profits and 5122.40 for costs. The defendant appeals against those orders and seeks an order that the order for recovery of possession be set aside and for a declaration that the defendant succeeded to the tenancy of that dwelling-house, in circumstances to which I shall turn in a moment or so, by the operation of section 30 of the Housing Act 1980.
The main ground upon which the appeal is launched is that the assistant recorder erred in law by holding that the requirements of section 30 of the Act were not satisfied by the circumstances found to exist, and in particular that the assistant recorder was wrong to hold that, as a matter of law, the defendant was not the spouse of a woman called Mrs Maureen Rodrigo, who has died, and nor was the defendant a member of her family as defined by section 50(3) of the Housing Act 1980, they being persons living together at material times as they describe as man and wife.
The facts which lie behind the orders which were made consequent upon the hearing which took place before the assistant recorder are these. Mrs Maureen Rodrigo became the tenant of a council house which is owned by the plaintiffs. She had before that become separated from her husband. In September 1981 she was joined in that house by the defendant. Mrs Rodrigo was then approximately 43 years of age and the defendant 33 years of age. The defendant was unmarried. They had known one another for some years beforehand. Just before they started to live together they had become very fond of one another and decided to live together in a state which I have said has been described as that of man and wife. They were both lesbians. They lived in the state of lesbian relationship.
On 8th February 1984 Mrs Rodrigo died, leaving in the house only the defendant. The plaintiffs saw no reason why they should not cause the defendant, who was unwilling to go, to be evicted from that house. She resisted their attempts to cause her to go without resort to the law. Accordingly, they were obliged to bring proceedings. By the particulars of claim they assented that the defendant, upon the death of Hrs Rodrigo, had remained in possession of the dwelling-house and that there had been no transfer of the tenancy of it from Mrs Rodrigo to her by any manner or means. By her defence the defendant contended thus:
"I gave up my home to live with Mrs Rodrigo over 2-g- years ago now. In that time we lived as man and wife. In all that time I lived with her the Council did not do any repairs to the house although we asked them to do the repairs. Mrs Rodrigo was very ill and she could not walk, and she wanted to get to the Council office to ask for my name to be put on the rent book, but she just could not make it. She was so very very ill and now she has gone and I'm going to have nowhere to live."
The assistant recorder considered the relationship of these two ladies and the contention that it entitled the defendant, within the terms of section 30 of the Housing Act 1980, to succeed to the tenancy enjoyed by Mrs Rodrigo. The provisions of section 30, so far as they need to be read, are these:
"30.-(1) Where a secure tenancy is a periodic tenancy and, on the death of the tenant, there is a person qualified to succeed him, the tenancy vests by virtue of this section in that person ... (2) A person is qualified to succeed a tenant under a secure tenancy if he occupied the dwelling-house as his only or principal home at the time of the tenant's death and either - (a) he is the tenant's spouse; or (b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death."
"A person is a member of another's family within the meaning of this Chapter if he is his spouse, parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece; treating - (a) any relationship by marriage as a relationship by blood, any relationship of the half blood as a relationship of the whole blood and the stepchild of any person as his child; and (b) an illegitimate person as the legitimate child of his mother and reputed father; or if they live together as husband and wife."
It was submitted by Mr Allan among a series of ingenious arguments that section 30, with the definition provided by section 50(3), is apt to cover a relationship such as existed between Mrs Rodrigo and the defendant.
It is pertinent to interpolate here that at the hearing before the assistant recorder no evidence was called by either party, the facts being not in dispute. The assistant recorder had therefore to decide, having regard to the provisions to which I have referred and to those facts, whether it was right to conclude that a relationship such as obtained here amounted to a living together, to use the words of the Act, as husband and wife. He came to the conclusion, as has been said, that such a relationship could not so be held.
Mr Allan has drawn our attention, not only to the provisions of the Housing Act 1980, but to the equally well-known provisions of the Rent Act 1977 (in particular to the first three paragraphs of the first schedule), the Family Income Supplements Act 1970, section 1, and to the Domestic Violence and Matrimonial Proceedings Act 1976, sections 1(2) and 2. The purpose of that was to demonstrate that in the Act of 1977 no assistance is provided in the contents of the first three paragraphs referred to so as to comprehend what is nowadays called a common law relationship of man and wife, whilst in the Acts of 1970 and 1976 Parliament has recognised such a union and conferred upon those who have joined in it certain benefits (or subject to penalties as the case may be) of that legislation. This, so it is submitted, is an indication that gradually Parliament during the 1960s and 1970s has been recognising that there is a form of relationship outside a formal marriage between two persons in a dwelling-house which the public hag come to recognise and to accept as being a perfectly proper and normal association. Hence by today no-one would do other than recognise that a man and woman who are living together and cohabiting and having children are doing anything other than living in a state of marriage, albeit that there has been no wedding, either civil or religious or both.
Mr Allan suggests that the manifestations of the living together of husband and wife following a marriage ceremony are easily recognisable and are for the most part similar to a state where two women live together in a lesbian relationship. He says that in both there may be mutual love, monogamy, some degree of public acknowledgment of their condition of living, faithfulness by one to the other, a permanence of relationship, sexual relations of some kind, a shared surname, a joint household and, in the case of man and woman, of course, children. Save for the bearing of children, he maintains that all or nearly all of those manifestations can appear from the living together of two women. So, if the appearance of things is the test, there is no earthly reason why the Act is not complied with when two women live together in the state in which the late Mrs Rodrigo and the defendant were living. They should be held to be living as husband and wife.
We were told that, not only did they so regard and describe themselves, but they behaved in some ways (outwardly at any rate) as though one was the husband and the other was the wife. Mrs Rodrigo was the masculine partner apparently and wore men's clothing, and the defendant was the female counterpart.
Mr Allan places reliance upon the word "as" which is contained in the final words of section 50(3). By the appearance of that word in its context it is to be understood that Parliament was indicating, not only that the provisions were intended to apply to persons who were married in the formal sense, but also to unions which gave the appearance of two people living together in a kind of matrimonial state. Much has happened, he further maintains, over the last decade or more to change people's opinions about what before that time were considered to be repugnant sexual relationships. Nowadays nobody blanches at the fact that two women who are lesbians live together, or two men who are homosexuals. It is not a crime for men in most circumstances to behave in that way, and, so far as lesbians are concerned, a crime in no circumstance.
That the views of the public have changed with regard to the association of man and woman is to be derived from the judgments in Dyson Holdings Ltd. v. Fox. 1976, Q.B. 503. In that case the defendant had lived with the tenant of a house as if she were his wife for 21 years until his death in 1961. They had never married. They had never married. They had no children. After his death the defendant continued to live in the house, for which she paid rent as if she were his widow. Proceedings were brought to evict her. It was held that the owners of the house were entitled to recover possession of it. On appeal it was held that the question whether the defendant was a member of the tenant's family was to be answered according to the understanding of the ordinary man, using the word "family" in its popular sense, as at the time of the tenant's death in 1961.
"It is clear, however, that Gammans v. Ekins. following Brock v. Wollams (1949) 2 K.B. 388, proceeded on the basis that the question who is a 'member of the tenant's family' is to be answered according to the understanding of the ordinary man, and this test has been consistently applied in all the other cases decided on this provision. Now, it is, I think, not putting it too high to say that between 1950 and 1975 there has been a complete revolution in society's attitude to unmarried partnerships of the kind under consideration. Such unions are far commoner than they used to be. The social stigma that once attached to them has almost, if not entirely, disappeared. The inaccurate but expressive phrases 'common law wife' and 'common law husband' have come into general use to describe them. The ordinary man in 1975 would, in my opinion, certain say that the parties to such a union, provided it had the appropriate degree of apparent permanence and stability, were members of a single family whether they had children or not."
Reliance is placed by the defendant here exclusively upon the words at the end of subsection (3)s namely, "if they live together as husband and wife." We are invited to say that in that context she should be regarded as a part of the family of the late Mrs Rodrigo.
Mrs Davies, who appears for the plaintiffs, contends that, if Parliament had wished homosexual relationships to be brought into the realm of the lawfully recognised state of a living together of man and wife for the purpose of the relevant legislation, it would plainly have so stated in that legislation, and it has not done so. I am bound to say that I entirely agree . with that. I am also firmly of the view that it would be surprising in the extreme to learn that public opinion is such today that it would recognise a homosexual union as being akin to a state of living as husband and wife. The ordinary man and woman, neither in 1975 nor in 1984, would in my opinion not think even remotely of there being a true resemblance between those two very different states of affairs. That is enough, I think, to dispose of this appeal, which, for the reasons I have provided, I would unhesitatingly dismiss.
MR JUSTICE EMBANK: I agree that the expression "living together as husband and wife" in section 50 of the Housing Act 1980 is not apt to include a homosexual relationship. The essential characteristic of living together as husband and wife, in my judgment, is that there should be a man and a woman and that they should be living together in the same household. Accordingly, the appellant was not able to establish that she is a member of the deceased's family and she is accordingly not entitled to succeed on this appeal.
Order: Appeal dismissed with costs; application for leave to appeal to the House of Lords refused; stay on order of Assistant Recorder Zermansky for 21 days.