Nutting v Southern Housing Group Ltd

For succession to an assured tenancy, a person in a same-sex relationship may qualify as a spouse where the relationship is sufficiently marriage-like. The assessment is fact-sensitive and focuses on the essential quality of the relationship, including emotional commitment and the way it is openly presented to the outside world.

Shared accommodation, companionship, domestic interdependence or the length of the relationship do not, by themselves, establish spousal status. A sufficient commitment to permanence is required at some point in the relationship. The appeal was dismissed because the findings did not establish that degree of commitment.

Southern Housing Group Ltd obtained possession of a flat occupied by Mark Nutting after the death of its assured tenant, Mr Roberts. The Recorder held that Mr Nutting was not entitled to succeed to the tenancy under section 17 of the Housing Act 1988. He appealed.

It was accepted that Mr Nutting occupied the flat as his only or principal home and that the same principles applied to same-sex relationships as to heterosexual relationships following Ghaidan v Mendoza 2004 3 WLR p113. The central issue was whether the relationship was sufficiently similar to marriage for Mr Nutting to be treated as Mr Roberts’s spouse.

1. Appeal dismissed. The Recorder was entitled to conclude that Mr Nutting was not a spouse for the purposes of section 17(4) of the Housing Act 1988.
2. The Recorder identified four indicia: whether the parties openly set up home together; whether the relationship involved mutual lifetime emotional commitment rather than convenience or companionship; whether it was openly and unequivocally presented as permanent; and whether the parties had a common domestic and external life. The first and fourth indicia were not, by themselves, sufficient.
3. The fundamental question was whether the relationship involved a commitment to permanence. That requirement was qualified by the need for the commitment to be openly and unequivocally demonstrated to the outside world. The test was consistent with the authorities.
4. The court distinguished the passage from Lord Millett’s dissenting speech in Ghaidan v Mendoza 2004 3 WLR p113, which stated that a relationship need not be happy, long-lasting or stable. That passage was both dissenting and obiter. The majority reasoning placed emphasis on long-term, marriage-like relationships and on intimacy, stability and interdependence.
5. The authorities did not establish a fixed minimum duration. Length could corroborate permanence, but the decisive issue remained the quality and permanence of the relationship. On the Recorder’s findings, the relationship was volatile, abusive and dysfunctional, and lacked sufficient commitment to permanence.

1. High Court (Chancery Division): Appeal from the decision of Mr Recorder Wilmot-Smith QC dated 16 August 2004. The appeal was dismissed.