Navigating Gender in Modern Intimate Partnership Law

Abstract

With women edging up to become half the workforce, claims of women’s economic empowerment now abound. But the reality is that gender equality has not been mainstreamed. The truly eye-opening new data is how marginalized and partial many women’s attachment to the labor force continues to be. Simultaneously, another misleading narrative also circulates — that of separateness — of disconnected individualism. In the context of intimate partnership and feminist legal theory, this Article pushes back against these accounts and demonstrates their problematic link. Contrary to the storylines, many women’s lives in fact remain characterized by deep bonds with partners, children, and extended family, and these connections tend to make women less economically powerful. This vulnerability is recurrently developed inside couple relationships, particularly because labor division still often translates into women specializing in unpaid work.

In this Article I explore how a feminist family law should respond to the connections and risks that come with intimate partnering. I contend that existing intimate partner economics law misses opportunities for strengthening bonds and unfairly distributes the risks and rewards of partnering by turning asymmetry into gendered inequality. This stems from law’s false assumptions that partners are situated equally and are largely unconnected. In contrast, expanding the lens from my earlier work on partnership marriage, I propose that for both unmarried and married couples, law should be based on economic sharing behavior and the benefits and burdens it recurrently produces. As one example of its application, I overview how the theory translates into law when couples break up. This serves to define, modernize and advance the partnership ideal that has so far only been partially developed and implemented in law. I situate my proposal and argue for its appeal in what I identify as related pluralist feminist and family law agendas. This framework is important for sex equality. By recognizing and valuing care work within the family economy, it mitigates the economic risks of sharing that tend to be more acute for women. Yet it resists assignment of the care-giving role to women by recognizing sharing whatever the pattern, thus supporting a range of choices. The sharing model serves equality in another critical way as well, as its principles apply across different forms of couple relationships, whether married or cohabiting, same sex or opposite sex.

Keywords: family law, intimate partnership law, domestic relations, women, couples, gender

JEL Classification: K39, K19, J12, J16