Married by Default

Authors

• Erez Aloni, Allard School of Law at the University of British ColumbiaFollow

Author ORCID Identifier

0009-0000-4094-8304

Keywords

Cohabitation, law reform, family law contracts, unmarried couples, nonmarriage, qualitative methods, cohabitation agreements, common law marriage, opting-out

Document Type

Article

Abstract

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. In-depth 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.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Aloni, Erez. "Married by Default." Osgoode Hall Law Journal 62.2 (2026) : 671-717.
DOI: https://doi.org/10.60082/2817-5069.3960
https://digitalcommons.osgoode.yorku.ca/ohlj/vol62/iss2/8

References

1. Associate Professor, Peter A Allard School of Law, University of British Columbia. I am deeply grateful to Doctor Adam Vanzella-Yang for his invaluable assistance with interviews and crucial insights throughout this project, and to Fraser Caldwell, whose exceptional research support enhanced every aspect of this work. For thoughtful feedback at various stages of this project, I particularly thank Régine Tremblay, Michael Boucai, Wei Cui, Hoi Kong, Melissa J Durkee, Kimberly D Krawiec, and Anibal Rosario-Lebrón. This work benefited significantly from presentations at the International Society of Family Law South American Regional Conference in Buenos Aires, the Fifth Annual Nonmarriage Roundtable at Rutgers Law School, the Association for the Study of Law, Culture and the Humanities Annual Meeting at the University of Toronto Faculty of Law, and the Law and Society Association Annual Meeting in Lisbon. Research for this project was generously supported by the Law Foundation of British Columbia.

2. See Table 1, below, for categorization of the various regulatory approaches. Note that Quebec’s 2024 parental union reform represents a partial departure from its traditional opt-in approach.

3. 2002 SCC 83 [Walsh].

4. See Quebec (Attorney General) v A, 2013 SCC 5 [Quebec v A].

5. See notes 38-41, 58-60, and accompanying text, below.

6. See generally Barbara Atwood & Naomi Cahn, “The Uniform Cohabitants’ Economic Remedies Act: Codifying and Strengthening Contract and Equity for Nonmarital Partners” (2023) 57 Fam LQ 1.

7. See Uniform Cohabitants’ Economic Remedies Act (2021).

8. See Rebecca Morgan, “Labour Proposes Reform to Cohabitation Laws” (13 October 2023), online (blog): [perma.cc/QV6P-SX7B].

9. See Lisa Young, “Project on Australian De Facto Relationships” (Fifth Roundtable on Nonmarriage delivered at Rutgers Law School, 29 September 2023) [unpublished] [on file with author].

10. See Part I(B), below.

11. See Part III, below.

12. See Cynthia Grant Bowman, “Social Science and Legal Policy: The Case of Heterosexual Cohabitation” (2007) 9 JL & Fam Stud 1 at 2, 7.

13. See Statistics Canada, State of the union: Canada leads the G7 with nearly one-quarter of couples living common law, driven by Quebec, Catalogue No 11-001-X (Statistics Canada, 21 December 2022).

14. See US, Census Bureau, Cohabitating Partners Older, More Racially Diverse, More Educated, Higher Earners (US Census Bureau, 2019).

15. See UK, Office for National Statistics, Families and Households in the UK: 2021 (Statistical Bulletin) (UK Statistics Authority, 2022); UK, HC, “Common Law Marriage” and Cohabitation (Research Briefing) by Catherine Fairbairn et al (HC Library, 2022).

16. See Erez Aloni, “Deprivative Recognition” (2014) 61 UCLA L Rev 1276 at 1300-301 [Aloni, “Deprivative Recognition”].

17. See Erez Aloni, “Registering Relationships” (2013) 87 Tul L Rev 573 at 586-88 [Aloni, “Registering Relationships”]; Winifred Holland, “Intimate Relationships in the New Millennium: The Assimilation of Marriage and Cohabitation” (2000) 17 Can J Fam L 114 at 127-28; Kaiponanea T Matsumura, “Choosing Marriage” (2017) 50 UC Davis L Rev 1999 at 2020. In Canada, the ability to successfully use unjust enrichment claims has become more viable since 2011. See Kerr v Baranow, 2011 SCC 10. However, in practice, the onus of proving all elements of unjust enrichment means that an unmarried plaintiff faces a greater hurdle than a married claimant enjoying statutory protection. See Robert Leckey, “Cohabitation, Law Reform, and the Litigants” (2017) 31 Intl JL Pol’y & Fam 131 at 133, DOI: [Leckey, “Cohabitation”].

18. See Brenda Cossman & Bruce Ryder, “Beyond Beyond Conjugality” (2017) 30 Can J Fam L 227 at 250; Frederik Swennen & Mariano Croce, “Family (Law) Assemblages: New Modes of Being (Legal)” (2017) 44 JL & Soc’y 532 at 550-51, DOI: ; Robert Leckey, “Strange Bedfellows” (2014) 64 UTLJ 641 at 652-53, DOI: [Leckey, “Strange Bedfellows”]; Shahar Lifshitz, “Married Against Their Will? Toward a Pluralist Regulation of Spousal Relationships” (2009) 66 Wash & Lee L Rev 1565 at 1569. Further, extending the scope of private support obligations can shift the responsibility to assist individuals in time of need from the state onto their partners and families. See Brenda Crossman & Judy Fudge, Privatization, Law, and the Challenge to Feminism (University of Toronto Press, 2002) at 170, DOI: ; Andrew Morrison, “Who is a Family: Cohabitation, Marriage, and the Redefinition of Family” (2015) 29 Can J Fam L 381 at 396.

19. See Elizabeth S Scott, “Marriage, Cohabitation, and Collective Responsibility for Dependency” (2004) U Chicago Legal F 225 at 249-250 [Scott, “Marriage, Cohabitation”].

20. For Canadian jurisdictions, see Julien D Payne & Marilyn A Payne, Canadian Family Law, 9th ed (Irwin Law, 2022) at 48-49.

21. See Albertina Antognini, “The Law of Nonmarriage” (2017) 58 Boston College L Rev 2 at 16-18.

22. See An Act respecting family law reform and establishing the parental union regime, SQ 2024, c 22 [An Act respecting family law] (assented to 4 June 2024; in force 30 June 2025).

23. See Lawrence W Waggoner, “With Marriage on the Decline and Cohabitation on the Rise, What About Marital Rights for Unmarried Partners?” (2015) 41 ACTEC LJ 49 at 81-82, DOI: (citing legislation recognizing marital rights in Australia).

24. See Margaret Briggs, “Property Rights of Cohabitants in New Zealand” in Margaret Briggs & Andy Hayward, eds, Research Handbook on Family Property and the Law (Edward Elgar, 2024) 158 at 173, DOI: .

25. Morrison, supra note 18 at 409-10; Payne & Payne, supra note 20 at 43-44.

26. Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Law Commission of Canada, 2001) at 115.

27. See Régine Tremblay, “Sans Foi, Ni Loi. Appearances of Conjugality and Lawless Love” in Anne-Sophie Hulin, Robert Leckey & Lionel Smith, eds, Les apparences en droit civil (Yvon Blais, 2015) 155 at 188; Ira Mark Ellman, “Contract Thinking was Marvin’s Fatal Flaw” (2001) 76 Notre Dame L Rev 1365 at 1367-70, DOI: ; Payne & Payne, supra note 20 at 56-57.

28. See Aloni, “Registering Relationships,” supra note 17 at 588; Cynthia Grant Bowman, Unmarried Couples, Law and Public Policy (Oxford University Press, 2010) at 47-53 [Bowman, Unmarried Couples]; Scott, “Marriage, Cohabitation,” supra note 19 at 249.

29. See Robert Leckey, “Family Lawyers on Cohabitation and Judge-Made Law” (2024) 74 UTLJ 408, DOI: .

30. See e.g. Family Law Act, RSO 1990, c F 3, s 1(1) [ON FLA] (differentiating between spouses and cohabiting couples). For further insights into Ontario’s legislation on support and property obligations, see Morrison, supra note 18 at 394-96.

31. See Payne & Payne, supra note 20 at 41.

32. ON FLA, supra note 30, ss 33(4), 35.

33. An Act respecting family law, supra note 22.

34. Family Law Act, SBC 2011, c 25, s 3(1)(b)(i) [BC FLA].

35. Ibid, s 93(1).

36. Family Law Act 1975 (Commonwealth), 1975/53, ss 4AA(1)(c), 90SB, 90UL(2)(b) (Austl).

37. See Morrison, supra note 18 at 402-404.

38. See Bowman, Unmarried Couples, supra note 28 at 230; John-Paul Boyd, “Reconstructing Domestic Relations: Improvements and Innovations in British Columbia’s New Family Law Act” (2014) 33 Can Fam LQ 353 at 366. Andrew Morrison asserts that opt-out “reform would do away with the current piecemeal approach and provide cohabitants with a more comprehensive regime. Cohabitants would be able to enter and exit relationships aware of their rights and obligations. An opt-out regime would provide cohabitants with certainty and predictability in the law.” Morrison, supra note 18 at 408.

39. Andrew Morrison argues that, with the opt-out regime, “not much is lost by providing protection for a vulnerable party, especially starting from the presumption that the unaware public believes after three years they are considered to be married according to the law.” Morrison, supra note 18 at 415-16. Abella J in Quebec v A refers to the expert report by Professor Hélène Belleau showing that the majority of couples in Quebec were unaware of the rights and obligations that the couples living in de facto unions had. See Quebec v A, supra note 4 at para 373. The BC White Paper referred to the findings that many British Columbians wrongly assumed that the statutory property division regime extended to unmarried couples in the province. See British Columbia, Ministry of Attorney General, Justice Services Branch & Civil Policy and Legislation Office, White Paper on Family Relations Act Reform: Proposals for a new Family Law Act (Ministry of Attorney General, 2010) at 83 [BC, White Paper].

40. Natasha Bakht points out that an opt-out scheme “would also rectify the ongoing confusion among many as to the different consequences of marriage and cohabitation.” Natasha Bakht, “A v B and Attorney General of Quebec (Eric v Lola)—The Implications for Cohabiting Couples Outside Quebec” (2012-2013) 28 Can J Fam L 261 at 272-73, DOI: .

41. In 2013, when introducing law reform, BC lawmakers cited the need to reduce confusion and harmonize various legal provisions as justifications. A BC government website outlines reasons for extending property division to unmarried couples:

The most compelling reasons for changing the property regime are to make the law simpler, clearer, easier to apply and more fair.…In addition, other areas of the law, including wills and estates and income tax, already treat common-law families the same as married families….During the consultation period, feedback indicated that many unmarried couples now are under the mistaken belief that, after two years, they are treated the same as married couples and are entitled to division of property if they separate. This misunderstanding causes significant disadvantage.

See Government of British Columbia, “Family Law Act Questions and Answers” (11 April 2013) at 6-7, online (pdf): [perma.cc/CMQ8-6ULW].

42. For a definition of penalty defaults, see Ian Ayres & Robert Gertner, “Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules” (1989) 99 Yale LJ 87 at 91, DOI: .

43. See supra note 3.

44. Ibid at paras 3, 70, L’Heureux-Dubé J, dissenting.

45. Ibid at paras 35, 40.

46. Ibid at para 43.

47. Ibid at para 61.

48. Ibid at paras 120-33, 140.

49. Ibid at para 157.

50. See Quebec v A, supra note 4.

51. Ibid at para 256.

52. See Leckey, “Strange Bedfellows,” supra note 18 at 645, n 15 (explaining the property regime in Quebec).

53. McLachlin CJ concurred that the law is discriminatory but voted to uphold it, adding one vote to LeBel J’s camp, because the different treatment was justified. Deschamps J, joined by Cromwell and Karakatsanis JJ, agreed that the relevant Code articles infringe on the equality rights of unmarried couples, but distinguished between property rights and spousal support obligations. Deschamps J argued that property protection stems from acts of consent, because the parties deliberately decided to acquire it. She found exclusion from support obligations to be an unjustified infringement, while property exclusion is justified. See Quebec v A, supra note 4 at paras 403, 415. Bala and Leckey attribute McLachlin CJ’s outcome to federalism concerns, noting her references in the section 1 analysis about respecting provinces’ law-making power. See Nicholas Bala & Robert Leckey, “Family Law and the Charter’s First 30 Years: An Impact Delayed, Deep, and Declining but Lasting” (2013) 32 Can Fam LQ 21 at 33.

54. Quebec v A, supra note 4 at paras 284, 366-69.

55. Ibid at para 371 [emphasis in original].

56. Ibid at para 360 [emphasis in original].

57. Ibid at para 372 [emphasis in original].

58. Proposals to extend the property and spousal support regime from married couples to cohabiting couples were made before Quebec v A. See e.g. Nicholas Bala & Rebecca Jaremko Bromwich, “Context and Inclusivity in Canada’s Evolving Definition of the Family” (2002) 16 Intl JL Pol’y & Fam 145 at 173, DOI: . Meanwhile, some family law scholars have generally criticized the strong focus on conjugality as a proxy for attaching obligations to families or warned against the unintended consequences of increasing the scope of private support obligations. See Tremblay, supra note 27 at 181-88 (calling for a rethink of the entire field of adult relationships and the benefits that are attached to marriage). Cossman and Ryder, while not addressing Quebec v A specifically, also worry about the expansion of recognition of marriage-like relationships. Their main argument is that conjugality ought not be the sole policy-making proxy. See Brenda Cossman & Bruce Ryder, “What is Marriage-Like Like? The Irrelevance of Conjugality” (2001) 18 Can J Fam L 269 at 300-311.

59. Supra note 40 at 272.

60. See DA Rollie Thompson, “Annotation: Droit de la famille – 091768” (2013) 21 RFL 325 at 326.

61. See Heather Conway & Philip Girard, “No Place Like Home: The Search for a Legal Framework for Cohabitants and the Family Home in Canada and Britain” (2005) 30 Queen’s LJ 715 at 735-38; Morrison, supra note 18 at 385; Matsumura, supra note 17 at 2065-66.

62. See “Introductory Materials” in Principles of the Law of Family Dissolution: Analysis and Recommendations (American Law Institute, 2002) at 1. Similarly, Cynthia Bowman proposed that couples who live together for three years or have a child should be considered spouses for all legal purposes. See Unmarried Couples, supra note 28 at 223-38.

63. See Marsha Garrison, “Nonmarital Cohabitation: Social Revolution and Legal Regulation” (2008) 42 Fam LQ 309 at 317; Lynn Wardle, “Deconstructing Family: A Critique of the American Law Institute’s ‘Domestic Partners’ Proposal” (2001) 2001 BYUL Rev 1189 at 1226; Amy L Wax, “The Family Law Doctrine of Equivalence” (2009) 107 Mich L Rev 999.

64. See Katherine M Franke, “Longing for Loving” (2008) 76 Fordham L Rev 2685 at 2697, DOI: .

65. See Atwood & Cahn, supra note 6 at 11-12 (noting that a status-based remedy might not gain widespread acceptance and could be seen as reviving common law marriage).

66. See Courtney G Joslin, “Autonomy in the Family” (2019) 66 UCLA L Rev 912 at 915.

67. See UK, Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Commission Report No 307) (The Stationery Office, 2007).

68. See UK, HC, Women and Equalities Committee, The Rights of Cohabitating Partners (HC 92) by Caroline Nokes et al (House of Commons, 2022).

69. See UK, HC, Women and Equalities Committee, The Rights of Cohabitating Partners: Government Response to the Committee’s Second Report (HC 766) (House of Commons, 2022).

70. See Andy Hayward, “Cohabitation: It’s Time to Take Legal Reform Seriously” (13 February 2023), online:  [perma.cc/2HMK-H4TW], DOI: .

71. See Erez Aloni, “Compulsory Conjugality” (2021) 53 Conn L Rev 55 [Aloni, “Compulsory Conjugality”].

72. See Patricia Ewick & Susan S Silbey, “Common Knowledge and Ideological Critique: The Significance of Knowing that the ‘Haves’ Come out Ahead” (1999) 33 Law & Soc’y Rev 1025 at 1027, n 1, DOI: .

73. Susan S Silbey, “After Legal Consciousness” (2005) 1 Annual Rev L & Soc Science 323 at 326, DOI: .

74. Janet Halley, “Behind the Law of Marriage (I): From Status/Contract to the Marriage System” (2010) 6 Unbound Harv J Leg Left 1 at 48-49, citing Robert H Mnookin & Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88 Yale LJ 950, DOI: .

75. Approval No H17-03407, approved 12 June 2018. Participants were sent the consent form in advance of each interview, and the interview team confirmed at the outset that participants had read, understood, and signed it. Signed consent forms are securely stored in accordance with UBC ethics requirements.

76. I did not separate same-sex and different-sex couples, as interviews suggested minimal differences in knowing or understanding the law. Although some studies find same-sex couples more egalitarian in dividing property or more familiar with legal agreements due to lack of marriage rights, participants reported similar experiences to different-sex couples. My conclusions would be unchanged with only different-sex couples. For studies about gender roles and obligations among same-sex couples, see Suzanne A Kim & Edward Stein, “Gender in the Context of Same-Sex Divorce and Relationship Dissolution” (2018) 56 Fam Ct Rev 384 at 388-89, DOI: ; Melanie E Brewster, “Lesbian women and household labor division: A systematic review of scholarly research from 2000 to 2015” (2017) 21 J Lesbian Studies 47 at 63-65, DOI: .

77. See Part II(A)(3), below, for the strengths and limitations of this.

78. See Appendix A for the sociodemographic of the interviewees, online: [perma.cc/YT4Y-ARW3].

79. See Benoît Laplante & Ana Laura Fostik, “Cohabitation and Marriage in Canada. The Geography, Law and Politics of Competing Views on Gender Equality” in Albert Esteve & Ron J Lesthaeghe, eds, Cohabitation and Marriage in the Americas: Geo-historical Legacies and New Trends (Springer Nature, 2016) 59, DOI: . While Laplante & Fostik’s article examines ages between 15 and 49, our minimum age was 18, acknowledging the age requirement for marriage in British Columbia. The participants’ ages ranged from 21 to 48. Only four couples had a partner older than 40, and in only one relationship were both partners older than 40.

80. Ibid at 68.

81. See Sharon Sassler & Amanda Jayne Miller, Cohabitation Nation: Gender, Class, and the Remaking of Relationships (University of California Press, 2017) at 14, DOI: (justifying their decision to interview couples between the ages of 18 and 36 because they are at “the prime family formation years when young adults make key decisions about work, marriage, and children”). See generally Harry T Reis et al, “Change and Consistency in Social Participation During Early Adulthood” (1993) 29 Developmental Psychology 633, DOI: (discussing the centrality of relationships to the lives of early adults).

82. The mentioned groups have or might have a particular interest in regulating adult relationships. Elderly cohabitants likely have different needs than cohabitants in early adulthood. Additionally, recent Asian immigrants are a large group of Canadians warranting scholarly attention, as the 2006 Canadian census found living arrangements vary by ethnocultural group. See Statistics Canada, Families, Living Arrangements, and Unpaid Work, by Anne Milan, Leslie-Anne Keown & Covadonga Robles Urquijo, in Women in Canada: A Gender-based Statistical Report, Catalogue No 89-503-X (Statistics Canada, 2011) [Living Arrangements]. Finally, Laplante & Fostik hypothesize “that people born abroad and children of immigrants are less likely to live in a consensual union than people born in Canada or born to parents born in Canada.” See Laplante & Fostik, supra note 79 at 95.

83. See Jessica Dorfmann, “New Wealth Seeks a ‘Home’: The Global Rise of the Hedge City” (2015) 36 Harvard Intl Rev 4 at 4.

84. See e.g. Ayelet Blecher-Prigat, “The Costs of Raising Children: Toward a Theory of Financial Obligations Between Co-Parents” (2012) 13 Theor Inq L 179 at 190, DOI: . Blecher-Prigat argues that “the obligations created between adults by virtue of their joint parenthood should not be limited to the activity of parenting, but rather extend to financial obligations that they owe one another.”

85. Childless families grew from 34% in 1981 to 50.2% in 2019. See Living Arrangements, supra note 82; Statistics Canada, “Census Families by Total Income, Family Type and Number of Children” (27 June 2024), online: .

86. Sassler & Miller, supra note 81 at 199.

87. Under s 93(1) of the BC FLA, the property division contract must be in writing and must be signed by both spouses in the presence of a witness. The court may accept an unwitnessed written contract pursuant to s 93(6), if it is satisfied that it would be appropriate under the circumstances. In the absence of a written contract, the court may still order unequal division of the family property per s 95(2)(b), if the oral agreement between the spouses can be proven on the evidence. See BC FLA, supra note 34.

88. See Aloni, “Compulsory Conjugality,” supra note 71 at 81-82.

89. As reflected in the earlier discussion of Abella J’s dissent and the commentators who support opt-out regimes, their arguments do not address the practical and structural limitations of contractual opt-out mechanisms. See supra notes 58-60 and accompanying text. Policy makers have also overlooked the complexities of opting out. In a “White Paper” drafted by the BC Ministry of Attorney General prior to the BC FLA law reform, the authors briefly mentioned opting out, without substantive discussion of its challenges. The authors stated, “If married or common-law spouses do not wish the statutory property division rules to apply to them, they can make different arrangements in a written agreement.” See BC, White Paper, supra note 39 at 84.

90. See Cass R Sunstein, “Nudging: A Very Short Guide” in How Change Happens (MIT Press, 2019) 59, DOI: . Sunstein discusses opting out as a “nudging” mechanism in other areas.

91. See Omri Ben-Shahar & John AE Pottow, “On the Stickiness of Default Rules” (2006) 33 Fla St UL Rev 651 at 655-60.

92. Ibid at 653.

93. See e.g. Richard H Thaler & Cass R Sunstein, Nudge: The Final Edition (Penguin Books, 2021) at 38, 209.

94. See Sunstein, supra note 90 at 98.

95. See Pascal Güntürkün et al, “Crowding-out Effects of Opt-out Defaults: Evidence from Organ Donation Policies” (2025) 4 PNAS Nexus 4, DOI: .

96. Supra note 90 at 97.

97. See Thaler & Sunstein, supra note 93 at 254.

98. Ibid at 260-64.

99. Elizabeth F Emens, “Disability Admin: The Invisible Costs of Being Disabled” (2021) 105 Minn L Rev 2329 at 2335.

100. Property Division: Common Law Couples and Adult Interdependent Partners, Report 112 (2018) at paras 106-125, online: [Property Division, Final Report]. At para 122 it is noted that “[t]hese safeguards are particularly important in the absence of a statutory provision to allow a court to review an agreement at the time property is divided” (ibid).

101. The Alberta Law Reform Institute lists cost and inconvenience as the first reasons against the opt-in regime but does not mention these reasons in relation to the opt-out regime despite the independent legal advice requirement. See Property Division, Final Report, supra note 100 at paras 145, 181, 245.

102. See e.g. Family Law Act, SNWT 1997, c 18, s 7(1); The Family Property Act, CCSM c F25, s 5(1).

103. The Alberta Law Reform Institute rejected a proposal for a standard form that would allow couples to opt-out because it “could not advise partners about how an agreement would affect their specific circumstances….A standard form cannot take the full context into account or tailor advice to an individual.” See Property Division, Final Report, supra note 100 at para 132.

104. Bala & Bromwich note that couples “are generally not psychologically prepared to contract about their personal relationships” and that is why a “purely contractual approach” to personal relationships is “unrealistic and flawed.” Supra note 58 at 160.

105. See William N Eskridge Jr, “Family Law Pluralism: The Guided-Choice Regime of Menus, Default Rules, and Override Rules” (2012) 100 Geo LJ 1881 at 1889.

106. See generally Brenda Cossman, “Family Feuds: Neo-liberal and Neo-Conservative Visions of the Reprivatization Project” in Brenda Cossman & Judy Fudge, eds, Privatization, Law, and the Challenge to Feminism (University of Toronto Press, 2002) 169 at 184, DOI: .

107. The British Columbia Branch of the Canadian Bar Association called for “an extensive educational campaign” in 2010. See Family Relations Act Working Group, Submission to Ministry of Attorney General, White Paper on Family Relations Act Reform: Proposals for a New Family Law Act (Canadian Bar Association, British Columbia Branch, 2010) at 45.

108. See e.g. RSC 1985, c 1 (5th Supp), s 248(1); Old Age Security Act, RSC 1985, c O-9, s 2; Employment Insurance Act, SC 1996, c 23, s 2(1); Government Employees Compensation Act, RSC 1985, c G-5, s 2; Pension Act, RSC 1985, c P-6, s 3(1); Canada Business Corporations Act, RSC 1985, c C-44, s 237.5(2)(b).

109. See Government of British Columbia, “Family Composition” (last visited 19 November 2023), online: .

110. See Government of Manitoba, “Common-law Unions” (last visited 19 November 2023), online: [perma.cc/H5Q5-S8NW].

111. See Laplante & Fostik, supra note 79 at 59-60 (“[a] substantial part of the research on unmarried cohabitation in Canada has actually focused on Quebec”).

112. See e.g. Quebec v A, supra note 4 at para 313. Abella J dissents, citing a report by the Ontario Law Reform Commission that states that common-law relationships are “the same as marriages,” because common-law spouses pool their resources and make joint economic plans and raise children.

113. Determination of the type of entitlement for spousal support (compensatory or non-compensatory), as well as the quantum, are influenced by having children or not. See objectives of spousal support under the Divorce Act, RSC 1985, c 3 (2nd Supp), ss 15.2(6)(a)-(b). LeBel J noted that even in Quebec, the social-demographic character of de facto unions is hard to quantify, since “little research based on large samples representative of the population as a whole has been conducted into the meaning of the de facto union in relation to marriage.” See Quebec v A, supra note 4 at paras 127-28 [emphasis in original].

114. For exceptions to equal division of property, see e.g. BC FLA, supra note 34, s 95.

115. See Laplante & Fostik, supra note 79 at 91.

116. See e.g. BC FLA, supra note 34, s 84(2)(g).

117. Ibid, s 85(1)(g) (tracing of excluded property).

118. In BC, pre-reform, the female to male plaintiff ratio was 61:27 (69 per cent of the total). Post-reform, it was 21:15 (58 per cent of the total). See Leckey, “Cohabitation,” supra note 17 at 136-37.

119. As an example of a policy that uses technology as part of an anti-exceptionalist move, Brenda Cossman proposes replacing family law with a new system that moves beyond the private law framework which she argues is failing families. She suggests decoupling separation and divorce from the adversarial court system and private law model, instead envisioning a form of social law and dispute resolution better equipped to deal with the volume and costs of family breakdown in society. Her proposals encompass institutional redesign ideas like shifting forums to tribunals and integrating technology, as well as substantive legal reforms around no-fault divorce, limiting discretion, and insurance schemes. See generally Brenda Cossman, “Abolishing Family Law (as We Know It)” in Erez Aloni & Régine Tremblay, eds, House Rules: Changing Families, Evolving Norms, and the Role of the Law (UBC Press, 2022) 303, DOI: .

120. See Janet Halley & Kerry Rittich, “Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, Introduction to the Special Issue on Comparative Family Law” (2010) 58 Am J Comp L 753, DOI: .

121. Supra note 4.

122. See “Unbundling Marriage Law” (2024) 62 Fam Ct Rev 877 at 887-91, DOI: .

123. Ibid at 891-93.

124. Notably, this regime applies only to couples who become parents after 30 June 2025, excluding existing families from its protections. See Robert Leckey, “Parental Union in Quebec: A Model for Recognizing Cohabitants?” (2025) 39 Intl JL Pol’y & Fam 1, DOI: .

125. Studies in the United Kingdom, Scotland, Sweden, the United States, and Quebec have all found significant legal misconceptions and lack of knowledge among cohabitants regarding their rights and obligations when compared to married couples. Specific statistics include: Over half of cohabitants in a UK survey incorrectly believed they had a “common law marriage” conferring the same rights; 55-57 per cents of Quebec cohabitants were unaware that they did not have equal property division or spousal support rights if separating; 50 per cent of Scottish respondents falsely believed cohabiting couples accrued the same rights as married couples over time; The majority of US spouses correctly answered only about 60 per cent of questions about legal impacts of separating. See Hélène Belleau, “One Myth Leads to Another: From Ignorance of the Laws to the Presumption of Informed Choice among de Facto Spouses” in Aloni & Tremblay, supra note 119, 213 at 218-21, DOI: .

126. See Helen Reece, “Leaping without looking” in Robert Leckey, ed, After Legal Equality: Family, Sex, Kinship (Routledge, 2015) 115, DOI: .

127. See Aloni, “Deprivative Recognition,” supra note 16 at 1331 (criticizing systems that recognize couples for the purpose of eliminating benefits but not for imposing mutual obligations, characterizing such approaches as asymmetrical and unfair); Leckey, “Strange Bedfellows,” supra note 18 at 655 (“Yet it is questionable whether recognizing de facto spouses in public law benefits them. At least, they experience the benefit unevenly.”).

128. See Erez Aloni & Adam Vanzella-Yang, “‘WAR’ and Other Reasons People Move In Together: Analyzing Cohabitating Relationship Progressions in British Columbia” in Aloni & Tremblay, supra note 119, 238 at 249-50, DOI: . Their study found that twenty-one couples cited practical reasons for moving in together, while only fifteen cited relationship considerations.

129. See Property Division, Final Report, supra note 100 at paras 116-18, 216-20, 248-49.

130. See Government of British Columbia, “Online Divorce Assistant” (last visited 6 March 2025), online: [perma.cc/9SGJ-RUP9].