Discrimination against homosexuals: property law implications of Godin-Mendoza v Ghaidan [2002] 46 EG 197 (CS)
Does this open the gate to similar challenges, say in the field of inheritance or capital taxes, where specific provision is made for a “spouse” in the normal sense of the word.
In so far as they can be said to discriminate, the kind of provision you mention favours the married to the detriment (as would be alleged) of the unmarried. Targeting such a provision, a surviving homosexual partner would have to show, among many other things, that he belonged to a class that was being discriminated against, the choice lying between unmarried couples regardless of gender or, perhaps more promisingly, homosexual couples (who cannot become “spouses” even if they want to).
In contrast, the provision challenged in Godin-Mendoza, namely para 2(2) of Schedule 1 to the 1977 Act, did in fact legislate positively in favour of unmarried couples, the successful claim being that the his-and-her wording operated (without justification) to discriminate on grounds of sexual orientation. That said, it seems to be only a matter of time before Godin-Mendoza is cited for one purpose or another in the kind of litigation contemplated in the question.
Discrimination against homosexuals: property law implications of Godin-Mendoza v Ghaidan [2002] 46 EG 197 (CS)
Q I gather from the Godin-Mendoza decision of the Court of Appeal, as explained in All tenants are equal Estates Gazette 30 November 2002, p137, that, thanks to the Human Rights Act, a survivor of a stable homosexual relationship has the same right to succeed to a statutory tenancy under Schedule 1 of the Rent Act 1977 as a surviving husband or wife.
Does this open the gate to similar challenges, say in the field of inheritance or capital taxes, where specific provision is made for a “spouse” in the normal sense of the word.
A Only slightly, though we hear on the grapevine that a Godin-Mendoza related challenge will shortly be heard by the Special Commissioners of Income Tax.
In so far as they can be said to discriminate, the kind of provision you mention favours the married to the detriment (as would be alleged) of the unmarried. Targeting such a provision, a surviving homosexual partner would have to show, among many other things, that he belonged to a class that was being discriminated against, the choice lying between unmarried couples regardless of gender or, perhaps more promisingly, homosexual couples (who cannot become “spouses” even if they want to).
In contrast, the provision challenged in Godin-Mendoza, namely para 2(2) of Schedule 1 to the 1977 Act, did in fact legislate positively in favour of unmarried couples, the successful claim being that the his-and-her wording operated (without justification) to discriminate on grounds of sexual orientation. That said, it seems to be only a matter of time before Godin-Mendoza is cited for one purpose or another in the kind of litigation contemplated in the question.
