Learning About Cohabitation Law from Sabrina Carpenter

Sabrina Carpenter’s song ‘House Tour’, which has been topping the charts across the country, is a helpful albeit unconventional springboard to consider the law for unmarried cohabitants as it stands, and comment on how proposed reform might better protect families in England and Wales today.

Laws affecting cohabiting couples

A family lawyer is not immune to the joys of a good pop song and in her most recent single, the American chanteuse takes the listener into her new home, located on Pretty Girl Avenue, a road where ‘dreams come true’. They might find themselves singing along happily, that is, until they hear Ms Carpenter announce over her backing track: ‘what’s mine is now yours’. 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!

Popular music is often reflective of the concerns of contemporary culture, and this song is no different: such a phrase echoes the sort of sentiment that is regularly expressed by parties in cases involving unmarried couples, often without realising its possible consequences.

Sadly, English law as it stands is not as ‘a la mode’ as Ms Carpenter. The provision for unmarried couples is inconsistent, outdated and can often leave the financially weaker party vulnerable.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). One can only anticipate this will rise in the coming years.

Despite its proliferation in society in recent years, many myths and misconceptions still exist around cohabitation. Myths about ‘common law marriage’ in England still rage and, in our experience, many clients remain unaware that they 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 (save for applications made pursuant to Schedule 1 of the Children Act 1989).

The current framework for such couples, through an application to the court for a declaration under the Trusts of Land and Appointment of Trustees Act 1996 (often shortened to ‘ToLATA’) leads to disputes that are long, difficult and stressful, giving rise to uncertainty and often rapidly escalating legal fees. Even Ms Carpenter would be shocked by an N260 by the time the Final Hearing arrives.

To help illustrate the difficulty and complexity of such applications, let us return to 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 now changes her tune and finds herself crying out to her partner ‘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 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 will be dependent on the factual matrix. In Kleinhentz v Harrison [2020] EWHC 3429 (Ch), the High Court 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 contributions (such as towards the mortgage or works to enhance a property) and their underlying intentions and other non-financial factors being taken into account.

Government consultation

Good law should be clear law, but sadly, as it stands currently, the law for cohabitants seems unsatisfactory. The recently published government consultation on financial remedies seeks to resolve some of these issues. The proposals include incorporating cohabitants within the broader financial remedies framework, albeit limiting their financial claims to children’s needs and the parties’ housing, income and pension needs. Unmarried cohabitants would be able to apply for relief if they have lived together as partners in an enduring family relationship, and either have done so for at least three years or have a child together.

Additionally, similar to its recommendations for pre-nuptial agreements, the consultation recommends that cohabitants could opt out of the scheme through a statutory cohabitation agreement, provided each party makes full financial disclosure and receives independent legal advice.

Ongoing maintenance could be available in exceptional circumstances and parties must bring any claim within two years of separation.

This consultation signals the start of change. Hopefully, the outcome will be that the law becomes more compatible with the current realities of family life in England and will hopefully provide some safeguards and certainty for unmarried couples and their children, who might be unable to access justice under the current legal framework.

Advice for cohabiting couples

Whilst reform is pending, it remains vital for Ms Carpenter, and indeed for anyone who is considering cohabiting with a partner, to seek specialist family law advice early on to try and safeguard against a protracted dispute in the event of separation. 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 continue to expose cohabiting couples to real uncertainty in the event of separation.