Married by default? Why Alberta's proposed new law is misguided

Imagine that you move in with your intimate partner. Three years later, you get a letter from the province: “Congratulations! From now on, we view you as a married couple.”

While you might not actually find such a letter in your mailbox, this is essentially the system recently proposed by the province of Alberta under its new Family Property Act.

Alberta isn’t alone. British Columbia, Saskatchewan and Manitoba already have such systems in place (for B.C. and Saskatchewan, couples are considered married after two years).

Over the past few months, we’ve interviewed 15 unmarried couples in B.C., which has been considering live-in couples “spouses” since 2013. We found that the law, while well-intentioned, infringes too far on couples’ autonomy in shaping their relationships.

It makes many unmarried couples in the province married by default, does not necessarily reflect couples’ wishes and communicates a norm of commitment to couples who live outside marriage and might not be ready to commit or have good reasons to protect their assets from their partners.

Property division

The amendment to an existing law being considered by Alberta has compelling justifications: Making the law more predictable and thus more accessible.

Under current law, unmarried couples do not have the same rights as married couples regarding division of property when a relationship ends. Furthermore, the current law makes it difficult to predict the outcome of litigation in the event of a breakup. This encourages expensive legal help, which some partners cannot afford.

To fix this, the suggested reform proposes that after three years of living together, unless the parties have executed an agreement, the same rules of property division that apply to married couples would apply to unmarried couples.

This reform tells partners: You should decide in advance — and enter into a contract — about division of assets in case of breakup.

If, in three years, you haven’t done so, the province will decide for you by extending the rules of equal division of assets to you. It therefore serves to nudge couples to deliberate about their mutual obligations in advance.

Law is still uncertain

Sounds fair, right? However, experience in B.C. reveals a few problems with the system.

A study by Robert Leckey, dean of the Faculty of Law at McGill University, compared court cases before and after the reforms in B.C. and Saskatchewan. It found that couples still litigate obligations under the new laws, seeking judgment on whether their relationship falls under the definition of living in a “marriage-like” situation, or they dispute how long they’ve been in such a relationship.

Leckey’s study implies that uncertainties remain about cohabitation laws.

In another study, Leckey argues that post-reform cases show that when judges evaluate whether couples are in “marriage-like” relationships, those judges tend to use traditional ideas of “good marriages” characterized by “gendered and class-specific notions.”

Our concern is how the law operates both long before a breakup — when couples decide whether to move in together — and also at the two- or three-year threshold, when the law kicks in.

Our study finds that couples’ degree of familiarity with and understanding of the law is abysmal. About two-thirds of the 15 couples falsely thought they had to “apply” to be considered spouses. They did not understand that they are automatically covered by the law; in other words, they must opt out to avoid being affected by the legislation.

In addition, a third of the interviewees mixed up the federal and the provincial time requirements for recognition.

Understanding the law is also difficult. The most educated and sophisticated couples we interviewed were unable to get it right, even after making great efforts to do so.

Couples hope for the best

To clarify, most couples in our study had good reasons to know about the law because they had some properties together or other mutual assets. This is not a surprise: The couples we interviewed, like married couples, were often overly optimistic about the chances of staying together, or believed any breakup would be amicable.

No couple likes to ponder their breakup, and likes to believe if they did decide to part ways, it would be amicable. FreestocksOrg/Unsplash

In fact, only one couple had actually executed a contract, but even this one did not follow the required formalities (witness and signature), so it is unclear whether the contract will be enforceable.

Default rules —such as those concerning equal division of property —typically serve to maintain the status quo. Studies examining behaviours of parties to other types of contracts demonstrate that they don’t change the default rules, even if they don’t desire them, for many reasons.

Opting out from default rules concerning property division is procedurally onerous and, in practice, requires a lawyer’s advice, which many cannot afford. Furthermore, the defaults may reflect the wishes of many couples, but they also suggest a norm of traditional marriage.

Accordingly, couples after two years (in B.C.) interpreted the law as advising they should adopt traditional, marital-like behaviour. A few couples in our study affirmed that; they believed that by the two-year threshold, their level of commitment ought to have evolved. It was a sort of deadline marking the end of a period of deliberation about whether they wanted to stay together as a couple.

We think that reforming laws relating to unmarried couples in Alberta, and elsewhere, is long overdue. But we are concerned that the Alberta bill, like its predecessors, is a strong affront to couples’ autonomy and erodes the freedom to choose to live in non-marital situations.

It’s not a gentle nudge, but more like a push.

A more innovative approach would present ways in which couples can effortlessly indicate their preferences using an online form, or at least would better inform couples about the law so they can choose for themselves if they want to “marry” —or to avoid the consequences of “marriage.”