1. See, for example, Fitchen, J When Toxic Chemicals Pollute Residential Environments: the Cultural Meanings of Home and Home Ownership’ (1989) 48 Human Organisation 313 CrossRefGoogle Scholar; Rakoff, R M ‘Ideology in Everyday Life: the Meaning of the House’ (1977) 7 Politics and Society 85 CrossRefGoogle Scholar.

2. Rakoff, above n 1, at 93.

3. J Pallasmaa‘Identity, Intimacy, and Domicile ––– Notes on the Phenomenology of Home’ in D N Benjamin (ed) The Home: Words, Interpretations, Meanings and Environments (Aldershot: Ashgate, 1995) p 137.

4. ‘An image of the home as a refuge from the dangers of the outside world has deep historical roots in society, perhaps captured in the mythical pioneer image of the rough cabin on the prairie, in which the husband-father is pictured protecting his family and its new home from the dangers of wilderness life. Though the nature of the perceived dangers has changed over time, the home is still thought of as a haven, where people, especially children, are safe’: Fitchen, above n 1, at 316.

5. S Watson with H Austerberry Housing and Homelessness: A Feminist Perspective (London: Routledge and Kegan Paul, 1986) p 8.

6. Watson, above n 5, p 8.

7. ‘there is a complex ideology of home which includes our expectations and desires …home is both an imposed ideal and a potent cultural and individual ideal’: J Moore ‘Placing Home in Context’ (2000) 20 Journal of Environmental Psychology 207 at 212.

8. L Fox Harding Family, State and Social Policy (Basingstoke: Macmillan, 1996) Chapter Four.

9. See, for example, debate in the House of Lords following the decision in Williams and Glyn's Bunk Ltd v Boland [1981] AC 487 when Lord Simon argued that the ‘integrity’ of the family home is:‘… of great social importance …’; while Lord McGregor argued for the need to:‘…secure and safeguard the values which society upholds in the institution of marriage and the family’: 437 HL Official Report (5th series) cols 640 and 653, 15 December 1982.

10. Matrimonial Homes Act1967, Matrimonial Homes Act 1983, and Family Law Act 1996.

11. National Provincial Bank Ltd v Ainsworth[1965] AC 1175 at 1256, per Lord Wilberforce.

12. 275 HL Official Report (5th series) col 45, 14 June 1966, Lord Denning.

13. Matrimonial Homes Act 1967. s 1 (1).

14. Matrimonial Homes Act 1967, s 2. Although the matrimonial homes legislation was subsequently amended to empower ‘associated’ persons, including former spouses, cohabitees, and former cohabitees, to apply to the court for orders regulating their occupation of the family home vis-à-vis their partners, the registration of matrimonial home rights for the purposes of protection against third parties remains limited to spouses: Family Law Act 1996, s 31.

15. [1981] AC 487.

16. Section 70(1)(g) protected the interests of ‘every person in actual occupation of the land’ by conferring overriding status on such interests, enabling them to take priority over subsequent third party interests, ‘save where inquiry was made of such person and the rights are not disclosed’.

17. [1981] AC 487.

18. Hodgson v Marks [1971] Ch 892.

19. Bird v Syme-Thomson [1979] 1 WLR 440.

20. [1981] AC 487 at 506.

21. ‘A wife may …have rights of her own …and if she has such rights, why, just because she is a wife … should these rights be denied protection’?; [1981] AC 487 at 506, per Lord Wilberforce.

22. The Iniplicnriori.s of Williams rind Glyn's Bank Ltd v Boland (Law Coin no 115. 1982) para 66.

23. 437 HL Official Report (5th series) col 640, 15 December 1982, Lord Simon.

24. 437 HL Official Report (5th series) col 653, 15 December 1982, Lord McGregor.

25. Land Registration and Law of Property Bill 1985.

26. 472 HL Official Report (5th series) col 752, 13 March 1986, Lord Mishcon.

27. [1953] Ch 299.

28. [1953] Ch 299 at 307, per Upjohn J.

29. Stott v Ratcliffe (February 1982, unreported), CA, Transcript 1977 S No 586 (Transcript Association).

30. [1980] 1 WLR 1327.

31. Willimns v Williams [1976] Ch 278 at 285, per Lord Denning MR.

32. Jones v Challenger [1960] 2 WLR 695.

33. Re Soloman, Bankrupt [1967] Ch 573 at 581, per Goff J.

34. Alliance & Leicester plc v Slayford [2001] 1 All ER (Comm) 1.

35. Re Bailey [1977] 1 WLR 278 at 279, per Megarry V-C.

36. Report of the Committee on Insolvency Law and Practice Chair Lord Cork (Cmnd 8558, 1982) (hereafter Cork Report) para 1118.

37. Cork Report, above n 36, para 1116.

38. Note, however, that where partners, rather than children, are concerned, this categorisation is not unproblematic ––– it has been suggested that a partner cannot properly be regarded as ‘innocent’ of the debtor's default in this context since the debtor's partner must ‘take the bad times with the good’: see, for example, M Freeman ‘Wives, Conveyancers and Justice’ (1980) 43 MLR 692.

39. The Law Lords argued for the protection of the:‘… principal residence of the bankrupt or of his spouse or former spouse or any dependent of the bankrupt or of his spouse or former spouse’: HL Bills (1984-85) nos 29-II, 29-III, 114-I, emphasis added. Lord Meston described the object of the proposals as: ’… to strengthen the really very weak position of the wife and child’: 459 HL Official Report (5th series) col 1263, 7 February 1985; who were identified as: ‘… the less able victims of bankruptcy’: 459 HL Official Report (5th series) col 1262. 7 February 1985, Lord Meston.

40. 78 HC Official Report (6th series) col 176, 30 April 1985, Mr John Fraser (emphasis added).

41. See further, B Martin and M Mohanty ‘Feminist Politics: What's Home Got to do with it?’ in T de Laurentis (ed) Feminist Studies/Critical Studies (Bloomington: Indiana University Press. 1986) p 191; T de Laurentis ‘Eccentric Subjects: Feminist Theory and Historical Consciousness’ (1990) 16 Feminist Studies 115; B Honig ‘Difference, Dilemmas and the Politics of Home’ (1994) 61 Social Research 563.

42. The trust for sale was automatically imposed on co-owned land by the LPA 1925.

43. The trust of land superseded the trust for sale and now governs co-owned land under the Trusts of Land and Appointment of Trustees Act 1996.

44. Insolvency Act 1986, s 335A(2).

45. Insolvency Act 1986, s 335A(3).

46. Trustee of the Estate of Eric Bowe (a bankrupt) v Bowe [1998] 2 FLR 439. However, see Edwards v Lloyd's TSB Bank plc [2004] EWHC 1745, discussed below, nn 69–73 and associated text.

47. Judd v Brown [1998] 2 FLR 360; Claughton v Charalamabous [1999] 1 FLR 740; Re Raval (a bankrupt) [1998]2 FLR 718, where life-threatening illness was considered sufficiently exceptional to justify delaying the order for sale.

48. See Stevens v Hutchinson [1953] 1 Ch 30. where Upjohn J distinguished between a judgment creditor who was not a ‘person interested’ within s 30, having only personal rights, and a chargee, who, having the same proprietary rights as an equitable mortgagee, would be entitled to apply for sale.

49. Harman v Glencross [1984] 3 WLR 759. Ch D: [1986] 2 WLR 637, CA.

50. [1984] 3 WLR 759 at 764, Ch D, per Ewbank J.

51. Harman v Glencross [1986] 2 WLR 637 at 648, CA, per Balcombe LJ.

52. Section 1(5) of the Charging Orders Act 1979 provides that: ‘In deciding whether to make a charging order the court shall consider all the circumstances of the case and. in particular, any evidence before it as to - (a) the personal circumstances of the debtor; and (b) whether any other creditor of the debtor would be likely to be unduly prejudiced by the making of the order.’.

53. Fox LJ stated that: ‘[i]t seems to me that “the personal circumstances of the debtor” would include the fact that he is obliged to make provision for his wife and young children, that he has no property with which to do so apart from the equity of his share of the matrimonial home. and that his former wife has no resources of her own of any consequence’: Harman v Glencross [1986] 2 WLR 637 at 657, CA, per Fox LJ. A similar sentiment was expressed in Interpool v Galani [1988] I QB 738. where the court indicated its reluctance to make a charging order relating to a debtor's interest in his matrimonial home on the basis of the debtor's obligation to provide for his family.

54. Harman v Glencross [1986] 2 WLR 637 at 651, CA, per Balcombe LJ.

55. Harman v Glencross [1986] 2 WLR 637 at 651, C A, per Balcombe LJ.

56. K O'Donovan ‘Protection and Paternalism’ in M D A Freeman (ed) The State, the Law and the Family: Critical Perspectives (London: Tavistock, 1984) p 87. O'Donovan goes on to state that: ‘[t]he crucial factor, however, is to provide the necessary “special protection” without implying that women lack full competency or sanctioning submission and control’.

57. A Bottomley ‘Women, Family and Property: British Songs of Innocence and Experience’ in M Maclean and J Kurczewski Families, Politics and the Laws (Oxford: Oxford University Press, 1994) p 261.

58. Bottomley, above n 57, p 264.

59. Jones v Challenger [1960] 2 WLR 695.

60. Re Soloman, a Bankrupt [1967] Ch 573.

61. ‘Economic theories as well as legislative doctrines treat the family as a private economic unit and avoid the fact that opposite interests might exist within the same entity … the family institution is supped to function in harmony after the contract is signed and until the relationship has possibly deteriorated to the extent that a disclosure is necessary’: T S Dahl and A Snare ‘The Private sector and the “invisibility” of women’ in C Smart and B Smart (eds) Women, Sexuality and Social Control (London: Routledge and Kegan Paul, 1978) p 18.

62. Law Commission Sharing Homes: A Discussion Paper (London: HMSO, 2002).

63. Law Commission, above n 62, para 1.8.

64. Law Commission, above n 62, para 1.8.

65. 569 HL Official Report (5th series) col 1722, 1 March 1996, Lord Mackey.

66. Above n 65; see further, L Fox ‘Living in a Policy State: From Trust for Sale to Trust of Land’ (2000) Liverpool Law Review 59.

67. A v B (23 May 1997, unreported), Transcript: LEXlS Marten Walsh Cherer; TSB Bunk plc v Marshall [1998] 39 EG 208; Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 FLR 809: First National Bank plc v Achampong [2003] EWCA Civ 48767a. See above, nn 43–47 and associated text.

68. [2001] 2 FLR 809.

69. [2004] EWHC 1745.

70. [2004] EWHC 1745 at [29].

71. [2004] EWHC 1745 at [29].

72. The mortgagee has an automatic power to conduct an out-of-court sale where the mortgage was made by deed. and the criteria set out in ss 101–103 of the LPA 1925 have been satisfied: that the legal date of redemption, as specified in the mortgage deed, has passed and that either (i) there has been a default in the payment of the mortgage money for three months after notice requiring payment is served; or (ii) interest under the mortgage is in arrear and unpaid for two months; or (iii) there has been a breach of some other provision contained in the mortgage deed.

73. Section 91(2) of the LPA 1925 provides that in an action for sale of the property the court may direct a sale of the mortgaged property, on such terms as it thinks fit.

74. W R Fisher and J M Lightwood Law of Mortgage (London: LexisNexis Butterworths, 11th edn, 2002) para 21.8.

75. (1997) 31 HLR 721.

76. The bank wished to delay the sale for the property in the hope of reducing the negative equity.

77. Administration of Justice Act 1970, s 36(1).

78. See for example, Cheltenham & Gloucester Building Society v Norgan [1996] 1 WLR 343.

79. The origins of expressions for home in the Roman (domus) and Greek (domos) languages reveals that they are:‘… very similar words arrived at in classical languages by different routes. The Romans got their domus from the Old Indo-European root dem, family; while the Greeks derived it from exactly the same-sounding root, meaning to build’: J Rykwert ‘House and Home’ in A Mack (ed) Home ––– A place in the world (New York: New York University Press, 1993) p 48. Rykwert suggests that although the fact that: ‘…the two different words moved so close together, linguists now tell us, was a coincidence … it seems to me to indicate an affinity which is not just accidental’: p 48.

80. T Hareven ‘The Home and the Family in Historical Perspective’ in Mack (ed) above n 79, p 228. Lawrence also argues that:‘… conceptions of family, households, and domestic space have varied over time … the close association between the family and a place of domicile is relatively recent’: R J Lawrence ‘Deciphering Home: An Integrative Historical Perspective’ in Benjamin (ed) above n 3, pp 58–59.

81. ‘…home was the invention of the middle class and was closely related to the emergence of the family as a private, emotional entity’: Hareven, above n 80, p 258. See also L Davidoff and C Hall “‘My own fireside”: the creation of the middle-class home’ in S Jackson and S Moore (eds) The Politics of Domestic Consumption: Critical Readings (London: New York: Prentice Hall/Harvester Wheatsheaf, 1995) Chapter 5.1.

82. Watson, above n 5, p 26.

83. Hareven links the emerging concept of family home with: ‘… the new ideals of domesticity and privacy that were associated with the characteristics of the modem family ––– a family that was child-centered, private, and in which the roles of husband and wife were segregated into public and domestic spheres, respectively’: above n 80, p 232.

84. ‘The husband was expected to be the main breadwinner and worker outside the home, and the wife a full-time housekeeper and mother. This new separation of domestic and public spheres led to the rearrangement of the family's work and living patterns within the home … the world of work became separate from family activities’: above n 80, p 233.

85. G Wright ‘Prescribing the Home Model’ in Mack (ed), above n 79.

86. W Webster Imagining Home: Gender, Race arid National Identity. 1945–64 (London: UCL Press, 1998) p 58.

87. Webster, above n 86, preface, p x.

88. Englishness was represented in images of family and home which were portrayed as white. Black was not associated with domestic and familial life except through its connections with this white family ––– connections which were usually seen as threatening: Webster, above n 86, p 47.

89. See Civil Partnershiphttp://www.womenandequalityunit.gov.uk/lgbt/partnership.htm (July 2005).

90. Law Society for England and Wales Cohabitation: The Case for Clear Law, Proposals for Reform (July 2002). This paper proposes a second layer of rights, for unmarried heterosexual cohabitants, and unregistered homosexual cohabitants. In relation to family property, the Law Society focused on the rights of non-property owning partners on separation.

91. Occupation was protected independently of ownership. according to one commentator, on the basis that: ‘Men generally fix their affections more on what they are possess'd of than on what they never enjoyed… it would be greater cruelty to dispossess a man of anything than not to give it to him’: D Hume A Treatise on Human Nature (Cambridge: Cambridge University Press, reprinted from the original edition, 1938) Book III, Part II, Section I.

92. M J Radin ‘Property and Personhood’ (1982) 34 Stanford Law Review 957.

93. Radin, above n 92, at 959. Radin also argued that: ‘… the personhood perspective is often implicit in the connections that courts and commentators find between property and privacy or between property and liberty’: at 957.

94. Radin, above n 92, at 978; ‘… a house that is owned by someone who resides there is generally understood to be towards the personal end of the continuum’: at 987. Radin went on to argue that: ‘[o]ne may gauge the strength or significance of someone's relationship with an object by the kind of pain that would be occasioned by its loss’: at 959. In relation to the ‘personhood’ quality of homes, this is borne out by empirical studies focusing on the impact of losing one's home, which have identified extreme responses including alienation and grief amongst those who had lost their homes: see also R J Lawrence ‘Deciphering Home: An Integrative Historical Perspective’ in Benjamin (ed), above n 3, pp 61–62; M Fried ‘Grieving for a Lost Home’ in L J Duhl (ed) The Urban Condition - People and Policy in the Metropolis (New York: Basic Books, 1963); J D Porteous ‘Domicide: The Destruction of Home’ in Benjamin (ed), above n I. These findings were supported by J Ford et al Home Ownership in a Risk Society: A social analysis of mortgage arrears and possessions (Bristol: Policy Press, 2001) where loss of home following mortgage repossession was linked to feelings of sadness, loss, insecurity, and sometimes damage to health.

95. See above nn 1–4 and associated text.

96. The proposition that families may have less need of home as a source of continuity if their home meanings travel with them is supported by evidence that, for children at least, the ‘experiential home’ may travel with the child. Empirical evidence from a child who had lived in eight different properties indicated that despite the family's mobility, that child: ‘… only had one experiential home in my childhood; my experiential home seems to have traveled with me and constantly transformed into new physical shapes as we moved’: Pallasmaa, above n 3, p 135.

97. This sum is currently NZ$82,000: Joint Family Homes (Specified Sum) Order 1996, SR 1996/175.

98. Family Law Act 1986, s 21.

99. Land (Spouse Protection) Act 1996.

100. Dower Act 2000.

101. Homesteads Act 1992.

102. Marital Property Act 1980.

103. Family Law Act 1995.

104. Quebec Civil Code.

105. Family Law Act 1990.

106. Bunreacht na hEireann (The Irish Constitution), Article 41.

107. Bunreacht no hEireann, Article 41.2.1.

108. B H Davis Introduction to Property Law, (Wellington: Butterworths, 1979) para 8.11.

109. (2000) ACWS (3d) 287.

110. See, for example, Miron v Trudel [1995] 2 SCR 418; MvH (1996) 40 CRR (2d) 240: Watch v Watch (1999) 67 CRR (2d) 311.

111. It is noteworthy, however, that a ‘domestic partnership declaration’ must be executed before cohabitants come within the remit of this homestead scheme.

112. The only states offering no exemption are Delaware, New Jersey, Pennsylvania, and Rhode Island. The amount of the exemption ranges from $500 in Iowa, to $200,000 in Minnesota, with five states (Florida. Kansas, Oklahoma, South Dakota, Texas) offering total exemption.

113. See generally, J L Baker ‘Comment: The Texas Homestead Exemption's Near Ban on Home Equity Lending: It's Time for the People to Decide’ (1996) 33 Houston Law Review 239.

114. J W McKnight ‘Protection of the Family Home from Seizure by Creditors: The Sources and Evolution of a Legal Principle’ (1983) 86 Southwestern Historical Quarterly 369.

115. Wood v Wheeler 7 Tex 13 at 22 (185l), Hemphill CJ.

116. See generally, L Fox ‘The Meaning of Home: A Chimerical Concept or a Legal Challenge’ [2002] 29 Journal of Law and Society 580–610.

117. 18 Tex 412 (1857).

118. 18 Tex 412 at 415–416 (1857), cited in Baker, above n 113, at n 94.

119. Baker, above n 113, at 257. Section 50 of Article XVI of the Texas Constitution states that: ‘The homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts except for… [the section then sets out permitted encumbrances].’ Section 51 of the Texas Constitution now permits that a ‘homestead claimant’ may be: ‘…a single adult person, or the head of a family’.

120. The head of the family must be legally or morally obligated to support at least one other member of the family, and there must be a corresponding dependence by the other family member for this support: NCNB Texas Bank v Carpenter 849 SW 2d 875 at 879 (Tex Civ App. Fort Worth, 1993); relationships accepted as showing ‘family’ have included adult child and parent, NCNB Texas Bank v Carpenter, above; brother and sisters, Real Estate Land Title & Trust Co v Street 85 SW 2d 341 (1935); divorced parent and minor child, Renaldo v Bank of San Antonio 630 SW 2d 638 at 639 (Tex, 1982); and a widower with no dependent children, Border v McDaniel 70 F.3d 841 at 844 (5th Cir, 1995). See M T Curry ‘An Overview of the Texas Homestead Law’, http://library.lp.findlaw.com/articles/file/00494/001069/title/subject/topic/bankruptcy%20law_collections%20%20repossessions/filename/bankruptcyIaw_1_24#N_21_.

121. Re Mitchell 132 BR 553(Bankr WD Tex, 1991).

122. Vernon's Interpretative Commentary to the Texas Constitution (Kansas: West Publishing, 1993) art XVI, ss 49–50, cited in Baker, above n 113, at n 94.

123. Barlow has argued, in support of a modified community property scheme, that: ‘ [r]estricting the availability of the family home as an easy means of securing business credit, and reducing its attractiveness to lenders by the risk of continued occupation rights in the family home, are consequences … which commercial vested interests may oppose. Yet forcing creditors to inform and consult a client's partner, consider business plans more thoroughly and ultimately find other suitable means of guaranteeing loans are outcomes worth pursuing in the interests of family life’: A Barlow ‘Rights in the Family Home - time for a conceptual revolution’ in A Hudson (ed) New Perspectives on Property Law, Human Rights and the Home (London: Cavendish, 2004) p 75.

124. ‘Lending is their job… it is also the main cause of why they sometimes lose money’: ‘Creditor and Economic Policy’, Deputy Governor's speech at the Institute of Credit Management National Conference, 9 March 1994, reprinted in [1994] Bank of England Quarterly Bulletin, May. The Committee on Bankruptcy and Insolvency has also acknowledged that: ‘[i]n the ordinary consequence of human experience the creation of credit must involve the possibility that the credit may in the event be misplaced, resulting in a debt which is not recoverable in full’: above n 36, para 5.

125. An illustration of the ability of creditors to protect their own interests is provided by the Boland litigation. Although the decision in Williams and Glyn's Bank Ltd v Boland [1981] AC 487 caused some alarm on behalf of both creditors and conveyancers with regard to its deterrent effect on the grant of mortgages, the alleged difficulties were described by Lord Scarman as ‘exaggerated’: ‘… bankers, and solicitors, exist to provide a service which the public needs. They can - as they have successfully done in the past - adjust their practice if it be socially required’: [1981] AC 487 at 510. By 1987 the Law Commission conceded in relation to Bolund that: ‘… conveyancers have learnt to live with it…’: Third Report on Land Registration (Law Com no 158, 1987) para 2.63.

126. See, for example, Ford et al, above n 94.

127. See, for example, the decision in White v White [2000] FLR 981, which established a ‘yardstick of equality’ for the division of assets between a wealthy breadwinner husband and a homemaker wife when property adjustment orders are made on divorce.

128. The bases for this ‘added value’ were the presence of children, or the value placed on ‘family life’ within the home by occupiers.

129. J Lewis ‘Family Policy in the Post-War Period’ in S N Katz, J Eekelaar and M Maclean Cross Currents: Family Law and Policy in the United States and England (Oxford: Oxford University Press, 2000) p 82.

130. S N Katz ‘Individual Rights and Family Relationships' in Katz. Eekelaar and Maclean, above n 129, p 621.

131. Lewis discusses a number of concerns associated with the trend towards greater individualisation in family policy, particularly in relation to the interests of lone mothers and children: see Lewis. above n 129; while O'Donovan has argued that it is important not to lose sight of the:‘… danger in raising individual autonomy in opposition to protective legislation in that this ignores the fact that family responsibilities, however, voluntarily taken on, deprive individuals of autonomy’: above n 56, p 85.

132. Katz, above n 130. p 621.

133. Katz states that: ‘I believe this emphasis on individual rights is a positive development, leading to a new concept of the marriage relationship’: Katz, above n 130, p 622.

134. Law Commission, above n 62, para 3.71.

135. T Wikstrom ‘The Home and Housing Modernisation’ in Benjamin, above n 3, p 268.

136. The argument that children should be ‘counted’ as individual occupiers is in line with current approaches towards children's rights, which emphasise the position of children as citizens and ‘rights-bearing individuals’ and as autonomous legal subjects: see, for example, ‘Children, Citizenship and Family Practices’ in C Smart, B Neale and A Wade The Changing Experience of Childhood: Families and Divorce (Oxford: Balckwell, 2001) ch 6.

137. If interests in the home were valued according to the individual's attachment to the property, it would not be necessary to define the home interest by reference to relationships with other people, thus avoiding both the exclusionary issues and the presumptions of dependency discussed above.

138. Fitchen, above n 1, at 315.

139. S Saegert and G Winkel ‘The Home: A Critical Problem for Changing Sex Roles’ in G R Wekerle, R Peterson and D Morley New Space for Women (Boulder: Westview, 1980) p 41.

140. S Kent ‘Ethnoarchaeology and the Concept of Home: A Cross-Cultural Analysis’ in Benjamin (ed), above n 3, p 163, emphasis added.

141. See Fox, above n 116.