The American chanteuse takes the listener into her new home, located on Pretty Girl Avenue, a road where “dreams come true.” Samuel Isaac and Philippa Kum (pictured below), associates in the family department at , will use this song as a springboard to explore some common pitfalls that unmarried couples may encounter, how interests in properties can be protected, and what Ms Carpenter, and indeed anyone, should consider before showing any new partner around their home.

The editors are pleased to share these views and hope they stimulate conversations. The usual disclaimers apply to views of guest writers. To comment, email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

Laws affecting cohabiting couples
A family lawyer is not immune to the joys of a good pop song and might find themselves singing along happily to “House Tour.” That is, until they hear Ms Carpenter announce over her backing track: “what’s mine is now yours.” It is the sort of sentiment that is regularly expressed in cases involving unmarried couples, often with no clear understanding of its consequences. The upbeat 80s synth fades and the alarm bells start to ring: Ms Carpenter – “please, please, please” (taken from her 2024 hit of the same name) stop and carefully consider the implications of such promises when starting to cohabit with your significant other!

Whilst Ms Carpenter’s song might be harmless fun, it does act as a useful reminder of the much-discussed inadequacies of the English law’s treatment of cohabiting couples. It is inconsistent, outdated and can often leave the financially weaker party vulnerable. Outcomes are uncertain and proceedings are expensive. The ONS statistics reveal year-on-year increases in cohabitation and in 2021, it was reported that more than half of babies in England and Wales are now born to unmarried parents (51 per cent of births). One can only anticipate that this will rise in the coming years.

Despite its proliferation in society in recent years, many myths and misconceptions still exist around cohabitation. For example, contrary to popular belief, there is no such thing as “common law marriage” in England. An individual will not acquire an automatic right to a share of their cohabiting partner’s property by virtue of living together or even having children together (although applications can be made for financial support for the benefit of the children).

Therefore, in the absence of a clear legal framework, financial disputes between a cohabiting couple are governed by principles drawn from property and trusts law. The common law of constructive trusts is the mechanism through which an individual can establish an interest in property, and this is realised by their application to the court for a declaration to be made under the Trusts of Land and Appointment of Trustees Act 1996 (often shortened to “ToLATA”). Such disputes are long, difficult and stressful, giving rise to uncertainty and often rapidly escalating legal fees.

Ms Carpenter’s cohabitating relationship can help to illustrate this complexity. Her partner moves in and they share a vision of making that house their home together. He (or she) makes significant financial contributions and emotional investment into this process, but tensions sadly rise over the years, and the halcyon days of cohabiting bliss become a distant memory. Ms Carpenter now changes her tune and finds herself crying out to her partner “what’s mine is mine – get out!”

To establish a beneficial interest in the house on Pretty Girl Avenue, Ms Carpenter’s partner would need to evidence: 1) a common intention of joint ownership, and 2) that he relied on this to his detriment. This two-stage process is a nuanced exercise, with much depending on the facts of the case.

To establish the first limb, the court will have to scrutinise the parties’ interactions to see whether a common intention about the joint ownership of the property was expressly made or can be implied from their conduct and decisions. Much of this depends on the context. One High Court (1) decision distinguished between explicit agreements that a cohabitant shall have a beneficial interest in the property and what is known as “social chit-chat” about the property. Here, the comment “well this is your house too” was characterised as the latter, and this feels quite reminiscent of Ms Carpenter’s “what’s mine is now yours,” which might not be sufficient to establish a common intention about the ownership.

Yet, if this comment was followed by discussions about how there was no need for him to invest in his own property as this was his home as well, or other evidence of them both acting in a way that was consistent with joint ownership, the comment could contribute to a court inferring that there was a common intention to jointly own the property.

Turning to detrimental reliance, Sabrina’s partner would be able to point to his significant financial contributions – perhaps he helped with the mortgage or paid for the new recording studio in the attic or the gym in the basement. Or maybe he does not have much in the way of financial resources but spent months digging out the garden swimming pool. If he can show he only did this based on his understanding that it was their joint property, then detrimental reliance will exist.

If Ms Carpenter’s partner can successfully establish both the common intention and his detrimental reliance on this, then the next step is to establish what his share of the property is. If there is no evidence that they ever discussed or agreed their shares, then the court can decide what shares are fair considering everything the couple did and said relating to the property. This approach makes outcomes unpredictable with both financial and non-financial factors being relevant considerations.

Advice for cohabiting couples
For Ms Carpenter, and indeed for anyone who is considering cohabiting with a partner, these cases come as a warning. Love can make people say (or sing) lots of crazy things, and make lots of grand promises, all of which can come with unintended legal consequences. Saying “what’s mine is now yours” might sound effortlessly romantic but, in the absence of legal advice and clarity about the practical arrangements, such statements expose cohabiting couples to real uncertainty in the event of separation.

Any couple planning to cohabit should seek specialist family law advice early on to try and safeguard against a protracted dispute in the event of separation. One way to achieve this is through a cohabitation agreement which regulates the parties’ financial relationship whilst they’re living together and outlines the ownership of property and division of assets should they separate. Such advice would have provided some much-needed autonomy and clarity for Ms Carpenter and would have mitigated the risks of her guy turning out to be a bit of, what she might call, a “manchild.”

Footnote:
1, Kleinhentz v Harrison EWHC 3429 (Ch)

The authors

Samuel Isaac

Philippa Kum