Welcome one and all to Sabrina Carpenter’s house tour.
The American chanteuse’s most recent single takes the listener into her new home where she tells her lover to join her on the sofa, have some cookies and follow her up to the first, second and even third floor of the building. Built, as she describes it, on “Pretty Girl Avenue” (a place where “dreams come true”), Sabrina is rightfully proud of her new house with its “waxed floors” and wants her lover to spend all the time they want there.
A family lawyer is not immune to the joys of a good pop song and might find themselves singing along happily until they hear the phrase “what’s mine is now yours”. The upbeat 80s synth fades and the alarm bells start to ring. We now find ourselves adopting the catchy plea to “please, please, please” (taken from Ms Carpenter’s 2024 hit of the same name) stop and carefully consider the implications of such promises when starting to cohabit with her significant other.
Laws affecting cohabiting couples
Whilst Sabrina’s song might be harmless fun, it does remind us of the much-discussed inadequacies of how English law treats 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 It is inconsistent, outdated and can often leave the financially weaker party vulnerable.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% of births). Despite this, and 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 simply by virtue of living together or even having children together (although applications can be made for the benefit of the children).
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 them applying 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.
To illustrate this complexity, let’s work through Ms Carpenter’s cohabitating relationship. 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 changes her tune and now finds herself crying out, “what’s mine is mine - get out!”.
In order to establish a beneficial interest in the house on Pretty Girl Avenue, Ms Carpenter’s partner must now 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. In Kleinhentz v Harrison [2020] EWHC 3429 (Ch), a distinction was made 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 (particularly where the comment was heard by millions of fans…).
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 doesn’t 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’s 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 for all of us, these cases come as a warning. Love can make us 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 could expose Ms Carpenter to real uncertainty in the event of separation.
Were Ms Carpenter to be based in England, then to protect her from these perils, we would recommend that she seeks specialist family law advice early on to try and safeguard her from 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. This would give some much-needed autonomy and clarity for Ms Carpenter and alleviates the risk of her guy turning out to be a bit of, what she might call, a “manchild”.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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