Stepchildren and succession after divorce
Annette Cafferkey and Alice Richardson ask whether the Housing Act 1985 (as it read pre-Localism Act 2011), permit a stepchild succeed to a secure tenancy on the divorce of his natural parent from his step-parent?
Succession to a secure tenancy
Under s.87 Housing Act 1985, pre-April 2012 Localism Act amendments,
“a person is qualified to succeed to a secure periodic tenancy if he occupied the dwelling house as his only or principal home at the time of the tenant’s death and either:
- i) He is the tenant’s spouse or civil partner or
- ii) He is another member of the tenant’s family and has resided with the tenant throughout the period of 12 months ending with the tenant’s death.
unless, in either case, the tenant was himself a successor, as defined in section 88”
By s.113(1)(b) of the Act, a person is a “member of the family” if he is, inter alia, that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. By s.113(2)(c), the stepchild of a person is to be treated as his child.
A stepchild clearly therefore falls within the definition of “member of the family” and could succeed a tenancy from his step-parent.
The question that arises is whether the child ceases to be a stepchild when his natural parent and step-parent divorce? Or, even if that were the case, could someone who was a stepchild succeed to the tenancy despite the divorce?
The definition of “family member” in s.113 of the 1985 Act is an exhaustive one: Michalak v Wandsworth LBC  EWCA Civ 271;  H.L.R. 39. In Sheffield City Council v Wall  EWCA Civ 922;  H.L.R. 47 the Court of Appeal held that a foster child does not fall within the definition, and any discrimination under Art.14 and Art.8 was justified as a deliberate policy choice made by Parliament as part of the balance involved in the allocation of social housing.
Given that the definition of family member under s.113 is exhaustive, the only way that a former stepchild could fall within the Act would be if, in law, he retained that status after his parent has divorced his step-parent.
Under some statutory schemes, provision is made for children if they have been treated as a “child of the family”:
- Under the Matrimonial Causes Act 1973 a step-parent may be required to provide financial provision for a child where the child has been treated as a “child of the family”, even if they have divorced the child’s parent. In determining whether such an order should be made, the court must take into account various factors including whether the step-parent has assumed any responsibility for the child’s maintenance: Snow v Snow  Fam. 74;  3 W.L.R. 951.
- Under s.1(1)(d) Inheritance (Provision for Family and Dependants) Act 1975 any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family may apply to the court for an order under s.2 of that Act.
- Under the Fatal Accidents Act 1976 s.3(f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage is classed as a “dependent” for the purposes of a claim for damages.
- Under s.1(2) and Part 2 of Schedule 1 of the Marriage Act 1949 a marriage between a person and a child of their former spouse/ the former spouse of a parent is void if the younger party was at any time before attaining the age of 18 a child of the family.
These various provisions, of course, do not answer question of whether the status of stepchild is retained following the divorce of his parent.
There is scant authority in England and Wales that deals with the status of stepchildren or former stepchildren.
In Mander v O’Toole  NZLR 909 the New Zealand Supreme Court held that the term “stepson”, in s.2 of the Deaths by Accident Compensation Act 1908, extended only to children who possessed that character by virtue of a marriage subsisting when the cause of action sought to be enforced under the statute arose. The court held at  that any suggestion that the step-parent/child relationship was retained after divorce;
“… implies that the consequential and sub-ordinate relationships remain unbroken whilst the link by which they were created is complete severed… if Mr West’s contention is correct, the stepson of the man to whom his mother is currently married might also be the stepson to any number of other men whom his mother may, during the life of the son, have married and divorced”.
That position is established in the US: Brotherhood of Locomotive Firemen and Enginemen v. Hogan (1934) 5 Fed. Supp. 598 (at 604) where the court held that:
“The wife in this case was the cause of the affinity which existed between Kennedy and her children. When the cause ceases, it should logically follow that the result ceases. No sound reason for any other view occurs to the Court.”
The same interpretation is taken in Australia. In Re Burt  1 Qd R 23 the Supreme Court of Queensland relied on Mander v O’Toole and Hogan and held at  that:
“The status of stepchild, as ordinarily understood, does not apply to a case in which the natural parent has been divorced from the step-parent, and probably does not survive the death of the natural parent”.
The defining feature of a step-parent/child relationship is that the step-parent is married to the natural parent. The status of stepchild does not endure when that marriage ends: it is not the equivalent to adoption. The reasoning in Mander and Hogan must surely be correct.
This could result in some seemingly harsh decisions where a step-child, despite the divorce, continues to consider his former step-parent to be his parent, perhaps having been brought up by him/her, the divorce only occurring when the child is an adult.
Whether the status is severed by the death of the natural parent, as suggested in Re Burt, appears to be more doubtful, where the marriage has endured “til death [they] did part”.
The statutory schemes outlined above make provision for these circumstance. But the Housing Act 1985, which, notably, was enacted after each of those schemes, makes no such provision.
It seems likely that a former stepchild could be a “status” for the purposes of Art.14. However, any challenge on the basis of discrimination under Art.14 and Art.8 may be difficult, below the Supreme Court in any event, unless Sheffield City Council v Wall could be distinguished.