Emily Stolzenberg (Villanova University Charles Widger School of Law) has posted Toward a Private Law of Intimates’ Obligations on SSRN. Here is the abstract:
When former cohabitants ask courts to distribute property at the end of a nonmarital relationship, they usually lose–even when the partners were as economically intertwined as spouses. Family law scholars have traditionally criticized these cases in terms of longstanding gendered ideas about family relationships. This Article proposes a complementary account at the intersection of feminist and private law theory: that the law of voluntary obligations is not adequately developed to protect intimates’ cooperation. Although marital status law aims to safeguard thick cooperation between spouses and contract law captures a range of more market-based cooperation, for historically contingent reasons, little doctrine has evolved to govern cohabitants’ cooperation. As a result, the current law of cohabitants frequently fails to further important purposes of private law writ large, including facilitating joint projects, providing redress for harm, and preventing exploitation.
Scholars and legal decision-makers should develop private law doctrine commensurate with the understanding that less market-based cooperation is commonplace and deserving of legal protection. This project would improve the resolution of disputes between all intimates: not just unmarried partners, but also other family members, friends, and those in relations of interdependence or trust. It also presents opportunities to build a more nuanced and complete private law and private law theory.
Recommended.