Friends with Benefits?

Abstract

Family law has long been intensely interested in certain adult intimate relationships, namely marriage and marriage-like relationships, and silent about other adult intimate relationships, namely friendship. This Article examines the effects of that focus, illustrating how it frustrates one of the goals embraced by most family law scholars over the past forty years: the achievement of gender equality, within the family and without. Part I examines the current scope of family law doctrine and scholarship, highlighting the ways that the home is still the organizing structure for family. Despite calls for increased legal recognition of diverse families, few scholars have considered whether family law should recognize care provided outside of the home, and no scholar has considered whether family law should recognize the care provided and received by friends. Part II turns to friendship, considering the practices of people who self-identify as friends and the ways that such practices are already influenced by the law's maintenance of a divide between friendship and family. That divide amounts to state support of the types of domestic caregiving that traditionally played vital roles in maintaining state-supported patriarchy and that still largely follow gendered patterns today. Family law thereby reinforces traditional gender role expectations rather than alleviating them. Part III then explores how simultaneous legal recognition of friendship and family could lead to greater opportunities to structure life free from state-supported gender role expectations. By supporting more pluralistic personal relationships and conceptions of care, family law could transform not just friendship and marriage, but gender itself.

Keywords: friendship, gender, family law, marriage, home, care