Married by Default

This Article examines and critiques the global binary debate surrounding opt-in versus opt-out legal regimes for regulating unmarried cohabitants' financial obligations upon separation. Using Canadian jurisdictions as a case study, it challenges the prevailing academic consensus that endorses opt-out systems as superior policy, based on assumptions that they are fairer, sufficiently preserve autonomy, enhance certainty, and particularly benefit women. Drawing on empirical research, the Article explores how couples engaged with British Columbia's opt-out scheme. Indepth interviews suggest that default rules operate as quasi-mandatory, with opting out proving remarkably difficult. Moreover, the law often falls short of achieving the anticipated certainty and struggles to accommodate the diverse interests of women. The analysis cautions against transformative reforms to cohabitation law based on unexamined or overly broad assumptions and highlights shortcomings in the dominant binary policy debate between opt-in and opt-out models. Given these limitations, the Article evaluates various conceptual approaches for reform. While acknowledging the promise of bolder anti-exceptionalist visions departing from existing paradigms, it concludes that, at present, modest refinements to opt-out models are more feasible and offer viable pathways to engender incremental improvements.