The role of opt-out agreements in cohabitation reform

There is a significant measure of agreement amongst both academics and practitioners that making financial remedies available to cohabiting couples on an opt-in basis will not work. It will do little to help those in religious only marriages who are left exposed upon separation. It will do little to help those who mistakenly believe they have legal recourse because of the common law marriage myth. Neither will it help couples aware of their options under the law, but who cannot agree, or simply never get around to opting in. In all these scenarios, where the opt-in does not work, it is the most economically vulnerable cohabitants who lose. They would be no better off than under the current, ineffective web of property and trusts law, which for many, could mean poverty. The alternative is a system of financial remedies that cohabitants may opt out of. This was proposed by the Law Commission in 2007 and was also endorsed by the Women and Equalities Committee in 2022. But what does opting out entail? This article explores the nature and scope of opt-out agreements. It first looks to the Scottish experience, where opt-out agreements are currently possible under the law. It then turns to the need for opt-out agreements to have safeguards and looks to the insights that nuptial agreements can provide for cohabitation agreements in this regard.