Navigating legal protections for cohabiting and economic relationships: can the market/home dichotomy guide us?

Full text

Navigating Legal Protections for Cohabiting and Economic
Relationships: Can the Market/Home Dichotomy Guide Us?
Elise Goossens, University of Antwerp
Journal of Social Welfare and Family Law 2024
Abstract: Many Western jurisdictions take a split approach to protecting the
economically vulnerable party in private relationships. In the family sphere,
many jurisdictions are reluctant to intervene in intimate partner relationships,
particularly outside the marital context. This lack of legal protection often leaves
the economically vulnerable partner in a precarious financial position at the end
of the relationship. By contrast, legal protections for vulnerable parties are much
more common in the economic sphere. This article explores this split approach to
protecting the vulnerable partner in private relationships through the lens of the
market/home dichotomy. It focuses on the Belgian regulation for unmarried
cohabiting partners on the one hand, and for tenants, consumers, and employees
on the other hand. The article concludes that the dichotomy has value as an
explanatory framework for the divergent norms of cohabiting and economic
relationships, but that it is most useful as a heuristic framework for challenging
the ideologies that inspire the market and the family. Incorporating the viewpoint
of non-traditional families only adds to that conclusion.
Keywords: market/home dichotomy, public/private divide, unmarried
cohabitation, cohabiting relationships, feminist legal theory, separate spheres
Introduction
i
Sam and Alex have been in a relationship for ten years, eight of which they have lived
together. They have built a house together and have a child. After a difficult period,
Sam decides to end the relationship. Sam, who owns the family home, asks Alex to
leave. As they were never married, neither has a claim to the other partner's assets or
maintenance. The fact that Alex has worked part-time for a number of years due to the
needs of the household and has therefore been able to accumulate fewer assets does not

change this. After the breakdown of the relationship, Alex is left in a financially
precarious situation, with hardly any assets, no compensation for previous household
contributions and no bridging allowance.
This is a fictional example, but the situation depicted here is not. It represents
the common approach still taken today by many Western jurisdictions towards
unmarried cohabitation. As will be explained later, many Western jurisdictions are
indeed reluctant to intervene in intimate partner relationships, particularly outside the
marital context. In this sense, they are not so far removed from the Napoleonic adage
‘Les concubins se passent de la loi, la loi se désintéresse d’eux’: concubines put
themselves outside the law, and the law has no interest in them (Pintens et al. 2010;
Glendon 1989). This lack of legal protection often leaves the economically vulnerable
partner – in many instances the woman – in a precarious financial position at the end of
the relationship.
In many Western jurisdictions, Alex would have been in a more favourable
position if she had been Sam's tenant, employee or business partner rather than his
intimate partner. Legal norms aimed at protecting the vulnerable party are indeed much
more common in the economic sphere. Many Western jurisdictions for instance prohibit
unlawful and unfair contract terms and provide for measures mitigating the termination
of an economic relationship. The result is a remarkably split approach to protecting the
vulnerable party in intimate partner relationships vis-a-vis economic relationships.
While many Western jurisdictions are reluctant to adopt protective measures in the
family context, there is no such reluctance in economic relationships. At first sight, this
split approach to protecting the vulnerable partner seems to reflect the 'market/home
dichotomy': the idea that the market and the family are inherently different and should

be subject to different legal rules. The market/home dichotomy is a classic theme in
(feminist) legal theory, often taken to task for its harmful effects on women.
This article aims to explore whether this split approach to protecting the
vulnerable partner in private relationships is indeed rooted in the market/home
dichotomy. I use the term ‘vulnerability’ here in the liberal sense, as opposed to other
theoretical conceptualisations of vulnerability (Fineman 2008; Fineman and Grier 2013;
Verza 2022). The first section conceptualises the market/home dichotomy within
feminist legal theory and engages with its main critiques. The second section analyses
the protective measures that apply to the vulnerable party in cohabiting and in economic
relationships in Western jurisdictions. Belgium will serve as a case study in this respect,
as it perfectly exemplifies the split approach found in many Western jurisdictions:
hardly any legal protection for unmarried cohabitation and plenty of protection for
economic relationships. Finally, the third section uses the market/home dichotomy as a
lens to critically compare legal protections for the vulnerable party in unmarried
cohabitating relationships and economic relationships. The analysis focuses on state
interventions in private relationships between the partners. The effects of such
relationships on third parties (for example in relation to social security or taxation) are
largely disregarded.
Throughout my analysis, particular attention will be paid to the perspective of
non-traditional families. Historically, the market/home dichotomy has primarily been
conceptualised for traditional families based on a relationship between a (cisgender)
man and a (cisgender) woman. Yet this article also aims to explore whether the
conclusions drawn for heterosexual families can be extended beyond the
heteronormative family paradigm, specifically to relationships involving LGBTIQ+
people.

The market/home dichotomy
Concept
The market/home dichotomy embodies the perception that social life consists of two
separate but interdependent spheres: the economic sphere (the market) and the domestic
sphere (the family) (Olsen 1983). It is rooted in the perceived division between the
public and private aspects of life. This divide between public and private is a central
feature of liberal societies. It positions the public sphere as open to state regulation,
while the private sphere deals with personal and intimate matters that are predominantly
governed by the individual (Fredman 1997; Thornton 1995; Young 2013). The
public/private divide reflects a strong gender bias, with the public being regarded as the
domain of men and the private as the domain of women. As such, the public/private
divide has historically been used to justify the exclusion of women from public life and
confine them to the private sphere. The ‘separate spheres’ ideology thus reinforces the
traditional breadwinner-homemaker stereotypes (Gan 2019). Moreover, it keeps
dynamics within the family hidden from the public eye. This has resulted in a
continuous undervaluation of reproductive labour and a long-standing acceptance of
domestic violence (Fletcher 2002; Fredman 1997; Thornton 1995). It has hence been a
focus of feminist scholarship to dismantle the separate spheres ideology and the
stereotypes that come with it (Warren 2007). Pateman (1983) even states that the
dichotomy between the private and the public is, ultimately, what the feminist
movement is about.
Notwithstanding its central role in feminist critique, the public/private
distinction has been used in many ways within the literature. Fletcher (2002)
distinguishes three ways in which feminist scholars have engaged with the divide,
relating to either public and private spheres, public and private norms, or public and

private relations. First, the public/private distinction can refer to the division between
the public as a sphere of regulation and the private as a sphere of non-regulation.
Although this approach has the benefit of simplicity, it is also deceiving, because
private matters such as divorce and inheritance have been the object of legal regulation
for a long time. The second approach overcomes these issues, by focusing on how the
family is regulated, and not on the question of whether it is regulated or not. In this
understanding, the public/private divide maps onto the different norms used for
regulating public life (here: the market) and private life (the family). This article mainly
adopts the latter approach to analyse the different takes on the protection of the
economically vulnerable party in the economic and the family sphere. Finally, the third
approach pays particular attention to the institutionalisation of public and private
relations. It takes into account the forces that make some norms more important than
others, or more likely to be associated with the public or private. This dimension will
also be considered in this article, although it is not the central point of analysis.
Within law, the distinction between public and private has led to the emergence
of ‘family law exceptionalism’. This theory refers to the observation and normative
aspiration that family and family law are unique and must hence be treated differently
from the market (Halley and Rittich 2010). To justify the distinct nature of the family as
opposed to the market, it is often argued that the family houses a special kind of
relationships, which are caring, intimate, and altruistic by nature. The market, on the
other hand, is the domain of competition, the pursuit of self-interest, and economic
progress (Keren 2019; Warren 2007). Under this view, therefore, family law is set apart
from other regulatory domains.
Like the market/home dichotomy, family law exceptionalism is strongly rooted
in patriarchy. They both provide the theoretical framework for segregating the family as

a distinctive feminine domain and for subordinating it to the masculine market (Halley
and Rittich 2010). As the public has consistently been viewed as the sphere of
rationality, and the private as the sphere of non-rationality, the public is depicted as
superior. The result is a hierarchy that marks the home, and the women in it, as inferior
(Fredman 1997; Keren 2019; Thornton 1995).
Critiques
The engagement with the market/home divide in feminist legal theory was at its highest
point in the 1980s and 1990s (see, for example, Landes 1998; Thornton 1995). While
the public/private divide and market/home dichotomy are still important in
contemporary discourse, their relevance has been increasingly questioned. One of the
main reasons for this is the growing participation of women in the workforce, which
challenges the usefulness of the market/home dichotomy as a theoretical framework.
Women are no longer socially confined to domestic roles but also engage in paid work.
As a result, the traditional categorisations of the ‘masculine’ market and the ‘feminine’
home have become less pronounced.
Nevertheless, the feminisation of the labour market has not made the
market/home dichotomy outdated or redundant. For one, the increased involvement of
women in the workforce has not been matched by a similar involvement of men in the
family. Many studies have shown that women still do the bulk of domestic work, even
when they perform an equal amount of paid work – the so-called ‘second shift’
(Hochschild 2012; see also OECD 2024; Verbeke et al. 2015). This imbalance is further
exacerbated by the fact that women are much more likely to work part-time than men
(Verbeke et al. 2015). The family is thus still largely the domain of women. The
COVID-19 pandemic has even intensified pre-existing gender inequalities related to
care burdens. Studies indicate that women have taken on a disproportionate amount of

extra childcare and housework during the pandemic (Böök et al. 2020; Profeta 2021).
This raises concerns about the long-term effects of the pandemic on the division of
domestic responsibilities.
Furthermore, recent decades have even shown an increased privatisation of the
family (Cossman 2002; Ertman 2005; Neave 1995; Singer 1992). This evolution is
evident in both substantive and procedural family law. Examples from substantive
family law include the widespread introduction of no-fault divorce, leading to a
liberalisation of divorce (Singer 1992; Swennen 2015), and an increased emphasis on
private autonomy in marriage law through marital and separation agreements (Scherpe
2012). Similarly, private ordering also plays a central role in the legal approach of
unmarried cohabitation in many jurisdictions. Due to the limited state regulation of
unmarried cohabitation, cohabitants are often left to privately arrange the terms and
consequences of their relationship in a contract (Goossens 2021; see also the next
section). Moreover, procedural contractualisation seems even further reaching than
substantive contractualisation (Swennen 2015). Many scholars indicate that family
justice has largely moved away from court-based procedures towards alternative dispute
resolution (Diduck 2023; Singer 1992). So not only is the family still the domain of
women, but it is even more subtracted from state intervention than before, which in turn
enhances their vulnerability in the domestic realm. The market/home dichotomy hence
remains a useful analytical framework to critically compare public and private norms.
Intersectionality offers a more fundamental critique of the market/home
dichotomy. Crenshaw (1989) points out that the separate spheres ideology and its
patriarchal roots are strongly premised on white female experiences. The breadwinner-
homemaker stereotypes inherent in the public-private divide do not apply to the Black
community in the same way. Black women have historically worked outside the home

in large numbers, and Black men are socially not regarded as powerful. Patriarchy
hence manifests itself in different ways in the Black community.
Crenshaw’s critique exposes the conceptual underpinnings of the market/home
dichotomy: the white, middle-class, traditional family. This observation calls into
question the validity of the market/home dichotomy for all families outside the
dominant family paradigm. Women of colour and women from working-class families,
in particular, have rarely only occupied a domestic realm. For them, working outside the
home was usually an economic necessity, often exposing them to extremely precarious
working conditions (Delap 2020; Warren 2007).
Furthermore, the dichotomy between market and home is deeply entrenched in a
heteronormative family model, which poses challenges in incorporating the perspective
of LGBTIQ+ families. These families defy traditional notions of public and private that
form the basis of the market/home dichotomy in many ways. Firstly, relationships
involving LGBTIQ+ people do not map onto the binary conceptions of the female
family and the male market. Contrary to what is the case with heterosexual
relationships, there is no predetermined mould for gender roles in same-sex
relationships or relationships including non-binary, trans, intersex or queer people. As
such, they challenge the gendered stereotypes that traditionally emanate from domestic
life and are intimately linked to reproduction (see also Okin 1989; Solnit 2013).
Secondly, people from the LGBTIQ+ community have a different history of using
private and public spaces. Due to the historical criminalisation of homosexual behaviour
in Western jurisdictions, the LGBTIQ+ community has fought hard for a zone of
privacy that provided relative protection from the surveillance of the state. The home
offered that privacy (Mason 1995; Vider 2021). While some commentators note that
private spaces have also been viewed as safe spaces for women in some instances

(Delap 2020; Warren 2007), particularly for women of color (Kline 1989; Fletcher
2002), the home is mostly regarded as a site of oppression within feminist theory. For
LGBTIQ+ people, however, home offered a refuge. The downside of this is that
relationships involving LGBTIQ+ people were generally forced into secrecy.
Homosexuality and queerness became associated with hidden sexuality that could only
be expressed in private, and LGBTIQ+ individuals often faced criticism for expressing
their identities in public spaces (Cooper 2000; Mason 1995; Young 1998). Vider (2021)
therefore depicts the home as a ‘crucial though contradictory space in LGBTQ life and
politics – a site of constraint and a site of self-expression, a site of isolation and a site of
deep connection, a site of secrecy and a site of recognition’. Since the 1970s, the
LGBTIQ+ community has increasingly moved into the public space to achieve larger
political goals, as consolidated in the popular slogan ‘Out of the closets, into the streets’
(Vider 2021). By living out perceived private norms in public, the enhanced visibility
and activism of LGBTIQ+ people in the public sphere is hence also redefining the
conventional conceptions of public and private spaces. Thirdly, relationships involving
LGBTIQ+ people have brought to light distinct points of criticism towards the private
sphere. Much of the feminist literature on the public/private divide focuses on the
gendered subjection of the ‘inferior’ home to the ‘superior’ public sphere. In contrast,
criticism from within the LGBTIQ+ community has mainly targeted domesticity itself
and the alignment with the heteronormative family model that it supposedly implies
(Garwood 2016; Vider 2021). It is argued that imitating and idealising heteronormative
family models only perpetuates, rather than challenges, dominant heteronormative
assumptions and institutions. Duggan (2002) has termed this a ‘new homonormativity’.
That is why some in the LGBTIQ+ community (Ettelbrick 1989; Polikoff 1993) have
been critical of the opening up of marriage to same-sex couples: because it reaffirms the

primacy of the traditional family rather than disrupting it. Furthermore, it is also pointed
out that the legalisation of same-sex couples is not always defended purely on
ideological grounds, but also for economic reasons. The inclusion of same-sex couples
within the institution of marriage engenders private care responsibilities for the spouse,
thereby alleviating the state of such obligations. It indeed privatises some costs that
were previously supported by the state (Boyd 1999; Cossman 2002).
Incorporating intersectional critiques, it is now essential for feminist literature to
contextualise and redefine the separate spheres ideology to include the perspectives of
families outside the dominant family paradigm. The following sections build on these
critiques to reassess the current relevance of the market/home dichotomy for the legal
regulation of intimate relationships between cohabiting partners.
Legal Protections for Cohabiting and Economic Relationships
The central premise of this article is that many Western jurisdictions offer less
protection to vulnerable parties in cohabiting relationships than in economic ones. In the
following paragraphs, I will substantiate this premise by using Belgium as a case study,
because it represents the dominant approach in many Western jurisdictions: little legal
protection for unmarried cohabitation but ample protection for economic relationships.
One complexity in analysing (and regulating) cohabitation is that the group of
'unmarried cohabitants' is very heterogeneous. Antokolskaia (2012), building on
Schrama (2008), distinguishes at least three types of cohabitation. The first type is
cohabitation-as-trial-marriage, which includes cohabitants who want to find out if they
are compatible before committing to marriage. The second type is cohabitation-instead-
of-marriage, referring to people for whom cohabitation is a permanent form of
relationship. The third type is cohabitation-after-marriage, which is for individuals who,
after a previous divorce or relationship breakdown, prefer cohabitation in their second

relationship to a (new) marriage. The socio-demographic profile of the people involved
varies between these types of cohabitation, as do their level of commitment to the
relationship and their legal problems and needs (Schrama 2008).
Despite this diversity, there is a common thread in the regulation of unmarried
cohabitation throughout Western jurisdictions. Western jurisdictions generally target
‘marriage-like’ cohabitation: a cohabitation between two people in a stable, committed
and affectionate relationship (Boele-Woelki et al. 2019; Estin 2001; Miles 2017). The
following analysis of the legal regulation of unmarried cohabitation therefore also
concentrates on such ‘marriage-like’ cohabitation.
The legal regulation of unmarried cohabitation
Western jurisdictions have adopted remarkably diverging legal approaches to unmarried
cohabitation (Goossens 2021; Miles 2017; Scherpe and Hayward 2024). Many
jurisdictions do not regulate unmarried cohabitation at all, leaving cohabitants to rely on
contract law, general law, or equitable remedies to settle their disputes. This is the
approach taken by many US States (Aloni 2013; Bowman 2010). The contract-based
approach to cohabitation in the United States stems from the 1979 case of Marvin v.
Marvin, in which the California Supreme Court established the principle that the rights
of cohabitants can be based on contracts. The Marvin doctrine encompasses both
express and implied contracts. Courts should not only enforce express contracts
between unmarried partners, but – in the absence of an express contract – should also
look to the conduct of the parties to determine whether that conduct evidences an
implied contract, agreement of partnership or joint venture, or other tacit understanding
between the parties. Marvin soon became the blueprint for how courts across the US
deal with cohabitation (Estin 2001; Garrison 2008).

Other jurisdictions have adopted a more mitigated variation of the former
approach. They rely primarily on contract law and general law remedies to resolve
disputes between cohabitants, but supplement these by attaching ad hoc legal effects to
unmarried cohabitation on a piecemeal basis. Such ad hoc measures seek to meet the
most urgent needs of cohabitants,without establishing a full cohabitation regime. They
often focus on the protection of the family home or on the inheritance rights of the
surviving cohabitant after the death of the partner. French law, for example, provides
for a continuation of the lease by the cohabiting partner in case the tenant abandons the
family home (Art. 14 Law of 6 July 1989). Similarly, English law allows for a transfer
of certain tenancies on separation of the cohabitants (Family Law Act 1996, Schedule
7). In addition, under English law, the surviving cohabitant can claim financial
provision from the deceased's estate for their maintenance (Inheritance (Provision for
Family and Dependants) Act 1975, § 1A and 1B).
Contrary to the two preceding approaches, other jurisdictions have established a
complete legal regime for unmarried cohabitation. Such cohabitation regimes are
available in two variations. They can either take the form of a 'registered partnership',
where specific legal rules apply after a formal declaration by the partners (opt-in
regimes). Such registered partnership regimes exist for instance in the Netherlands,
where they mirror the legal effects of marriage, and in Belgium, providing for minimal
legal rules (Scherpe and Hayward 2018).
Alternatively, a cohabitation regime can also apply by default to all cohabiting
couples that meet certain criteria, unless they opt out (default or opt-out regimes).
Again, such default regimes can either mimic the legal effects of marriage, as is the case
in New Zealand, or take a more minimal form, as exists in Sweden (Scherpe and
Hayward 2024). A key difficulty in the legal design of default regimes is the criteria

that must be met to trigger the application of the regime. Different Western jurisdictions
have developed varying solutions to this issue. One possibility is to make 'cohabitation'
an open concept to be assessed by the court, taking into account a number of factors.
Consequently, in the event of a dispute, the court must decide whether the situation
before it qualifies as 'cohabitation' within the scope of the default regime. An example
of this is the Swedish cohabitation law, which applies to two unmarried persons in a
relationship who live together in a stable way and maintain a common household
(Sambolag 2003:376; Jänterä-Jareborg, Brattström and Eriksson 2015). Secondly, it is
also possible to make the application of a default rule dependent on pre-defined
eligibility criteria. Common criteria include a minimum duration of the relationship and
the presence of children. For example, Irish law gives special rights to so-called
'qualified cohabitants', i.e. people who have lived together for at least two years with
children, or at least five years in other cases (Section 172(5) Civil Partnership and
Certain Rights and Obligations of Cohabitants Act 2010).
It is evident that default regimes offer the best protection for the vulnerable party
(Goossens 2021; Miles 2017). Other legal approaches to unmarried cohabitation require
partners to take formal action, such as entering into a registered partnership (if
available) or concluding a contract. In these scenarios, one partner may unilaterally
prevent the application of protective measures that would benefit the other partner. The
unwillingness of one partner to conclude a contract or to formalise the relationship by
entering into a marriage or registered partnership can therefore keep the other partner in
an economically vulnerable position. This is particularly damaging in case the partners
have unequal bargaining power. Feminist scholars have pointed out that in relationships
between (cis)men and (cis)women, bargaining power is often gendered. An opt-in
approach works to the advantage of the economically stronger partner – traditionally the

man – and deprives the necessary protection of the economically weaker partner – the
woman. The man could indeed be incentivised to give up as little as possible, while the
woman lacks the economic power to convince him otherwise. Such dynamic puts
women at risk of being exploited (Blumberg 1981; Leleu, Alofs and Harmel 2024). This
is especially true in families with more traditional gender roles: the man as primary
breadwinner and the woman as homemaker and perhaps second earner. Moreover,
women from ethnic minority communities that have concluded a religious-only
marriage, such as the Muslim nikah, are particularly vulnerable (Women and Equalities
Committee 2022; Schrama, Tigchelaar and Yildiz 2020). Such a marriage is in
conformity with the beliefs and practices of their religion but not recognised in law,
leaving these women with limited legal protection (if any). There is also a risk of
unequal bargaining power in relationships involving LGBTIQ+ people, but this risk is
not linked to gender roles.
Despite the potential harmful effects for vulnerable parties, many jurisdictions
remain hesitant to establish default regimes due to concerns about individual autonomy.
These jurisdictions avoid applying specific legal rules to partners who have not
submitted themselves to a cohabitation scheme. Belgium, too, shares these concerns and
political discussions on introducing a default regime have been halted repeatedly as a
result. Under Belgian law, cohabiting couples are only entrusted with specific legal
rights and obligations if they sign a cohabitation agreement, which is unpopular, or
enter a registered partnership, which provides only a narrow range of benefits
(Eggermont 2016; Leleu 2021). All other cohabiting couples must rely on the general
law of obligations and property law for the resolution of their disputes. However, case
law analysis shows that judges are reluctant to take into account the specific relationship
context when applying general law remedies, and that general law rarely leads to an

adequate protection of the weaker party (Goossens, Bollen and Verbeke 2023). As a
result, cohabiting couples are not required to contribute in an equal manner to the
expenses of the household, are not entitled to maintenance or a share in each other’s
property, cannot claim financial compensation for their contributions to the household
or their partner’s property, have no rights regarding the family home that is owned by
the other partner, do not inherit from the other partner, and enjoy no relationship related
pension or social security rights (Eggermont 2016; Leleu 2021).
The protection of the vulnerable party in economic relationships
The reluctance of many jurisdictions to intervene in unmarried cohabiting relationships
contrasts sharply with how these jurisdictions deal with economic relationships. Welfare
states typically accept state intervention in economic relationships to counteract power
imbalances and prevent oppression (Olsen 1983). Accordingly, the law frequently
designates vulnerable groups, such as tenants, consumers and employees, for special
protections. Through protective measures, the law aims to enable these vulnerable
parties to effectively pursue their interests without being subjected to the interests of
their more powerful counterparts.
Bouwman (2023) has identified four characteristics that help to explain why
certain groups of people are singled out for special protection in contract law. The first
characteristic is a lack of bargaining power. The stronger party, due to its superior
socio-economic position, can unilaterally determine the content of relationship
commitments, resulting in a contract being negotiated between parties who are not on
an equal footing. Secondly, vulnerable groups often lack sufficient information to assess
whether a contractual choice aligns with their desires. In a similar vein, they may also
lack the cognitive capacity to decide which contractual choice meets their needs, for
example due to a lack of expertise in the field. This asymmetry can create significant

barriers to informed decision-making. Finally, vulnerable groups may lack the ability to
resist coercion from a stronger party, resulting in a contractual decision that does not
align with their preferences.
There are many legal techniques that jurisdictions use to protect vulnerable
parties in economic relationships, both at the beginning, during, and at the end of the
relationship. Belgian law offers numerous examples of this, especially in its protective
regimes intended for tenants, consumers, and employees. Each of these vulnerable
groups must be given extensive information on their rights and legal obligations, which
are subject to an elaborate legal framework. Regarding tenancy, the Vlaams
Woninghuurdecreet (Art. 36) outlines the costs and expenses obligations of both the
tenant and the house owner. To ensure consumer protection, the Wetboek Economisch
Recht (Art. VI.83) includes a comprehensive list of unfair contract terms deemed
impermissible. These unfair contract terms are defined as contractual provisions which
demonstrate an apparent imbalance between the parties' rights and obligations, to the
consumer's disadvantage (Art. I.8, 22° Wetboek Economisch Recht). Interestingly, the
Belgian legislator also recognised the importance of preventing power imbalances in the
economic sphere beyond consumer relations, by adopting a list of unlawful contract
terms between companies in 2020 (Art. VI.91/3-VI.91/5 Wetboek Economisch Recht).
In a similar vein, the Arbeidsovereenkomstenwet clearly defines the mutual rights and
duties of employees and employers, and includes a list of unlawful contract terms.
Moreover, there are strict rules regarding the termination of the contractual relationship.
The owner of a house can only terminate a tenancy free of charge in specific cases
(personal use of the house or renovation works) and subject to a notice period. Outside
these cases, the owner must pay a termination fee to end the tenancy early (Art. 19
Vlaams Woninghuurdecreet). Similarly, an employer may only terminate an

employment contract after observing a notice period, except in the case of dismissal for
urgent reasons. He must also pay compensation in the event of an unfair dismissal
(Hendrickx 2023).
Comparing cohabiting and economic relationships through the lens of the
market/home dichotomy
Using Belgian law as a case study, I have shown that state intervention to protect the
weaker party is quite common in economic relationships. In contrast, all these
protective measures are absent in unmarried cohabiting relationships. I will now analyse
whether the market/home dichotomy indeed forms the backdrop for the diverging
regulation of intimate and economic relationships, as I hypothesised, or whether there
might be an alternative explanation.
A first conceptual problem when comparing the legal regulation of unmarried
cohabitation and economic relationships is that the latter require a contract. While
unmarried cohabitation is essentially an informal phenomenon (except when formalised
in a registered partnership), tenancy, consumer protection and employment relations
only exist as part of a contractual relationship. One could argue that the diverging
regulations of unmarried cohabitation and economic relationships stem from a
reluctance to impose rules on individuals who have not formally declared their intention
to make a legal commitment, rather than from the market/home dichotomy.
Although the non-formalised nature of unmarried cohabitation undoubtedly
complicates matters, this alone cannot account for the laissez-faire approach adopted by
many jurisdictions. One way to overcome the alleged incomparability of cohabiting and
economic relationships based on their different legal nature (non-formalised vs.
contractual), is to re-evaluate the legal qualification of cohabiting relationships. It has
been argued that the commitments made by cohabitants to each other may give rise to

an implied contract between them. This reasoning is notably present in the 1976 Marvin
v. Marvin case, which has significantly influenced the legal approach to cohabitation in
the United States. As previously explained, the California Supreme Court stated in
Marvin that courts, in the absence of an express contract, should examine the conduct of
the parties to determine whether it indicates an implied contract, an agreement of
partnership or joint venture, or some other implied understanding between the parties. If
cohabitation were to be considered as an implied contract, the comparison of cohabiting
and economic relationships would be equivalent to the comparison of two contractual
relations (as part of an implied contract or an express contract).This would address the
objections against comparing cohabiting and economic relationships on the premise that
they are fundamentally different in legal nature. Nevertheless, qualifying cohabitation
as an implied contract is not considered standard practice in most Western jurisdictions.
While some Western jurisdictions currently accept that tacit arrangements between
cohabitants may, under certain conditions, create implied contracts, they only do so with
great caution and in specific circumstances (Aerts 2024; Schrama 2004). Even in the
United States, where the Marvin doctrine forms the dominant approach to unmarried
cohabitation, courts are very reluctant to grant financial relief to cohabitants on the basis
of an implied contract (Bowman 2010; Estin 2001; Scott 2004).
However, even if unmarried cohabitation would not qualify as an implied
contract, this does not mean that economic relationships and cohabiting relationships
are fundamentally incomparable. Despite cohabitation’s informal nature, it is hard to
deny that cohabitants make commitments to each other. These commitments do not
exist in a legal void and, as such, can be monitored by the law. In this sense,
jurisdictions that refrain from regulating unmarried cohabitation because of its informal
nature seem to confuse unformalised and unregulated. Which relationships are regulated

and which remain unregulated is a societal choice, stemming from the value accorded to
each type of relationship, and in which the legislator has the final say.
A second issue concerns the definition of the vulnerable party. In economic
relationships, the economically vulnerable party is pre-defined in law: the tenant, the
consumer, the employee, etc. However, in cohabiting relationships, identifying the
economically vulnerable party is a factual matter that may differ from couple to couple.
While research indicates that women are often the economically disadvantaged partner
(Bessière and Gollac 2020; Leleu, Alofs and Harmel 2024; Women and Equalities
Committee 2022), this is not the case in every relationship, nor are all cohabiting
relationships between men and women. Cohabitation law must reflect this diversity and
avoid stereotypes that portray women as the weaker partner. This would mean that the
protection of the economically vulnerable party in cohabiting relationships requires an
individual analysis that takes into account all factual circumstances. Such an individual
analysis is more complex and demanding than a pre-defined category of the vulnerable
party in the law. Defining the vulnerable party in cohabiting relationships is therefore
more complicated than in economic relationships.
However, this diversity and factual appreciation of the vulnerable partner is also
reflected to some extent in economic relationships. On the European Union level, there
is an increasing number of instruments aimed at the protection of the weaker party in
business-to-business relations, transcending the mere focus on consumer protection
(Knapp 2020). The recent Belgian provisions regarding unlawful contractual terms
between companies, which I mentioned above, are part of that broader trend. In this
context, an unlawful contractual term is defined as a term in a contract concluded
between companies that, alone or in conjunction with one or more other terms, creates a
manifest imbalance between the rights and obligations of the parties (Art. VI.91/3

Wetboek Economisch Recht). The use of the term ‘manifest’ makes it clear that the
court should exercise restraint. Only when the term is of such a nature that its its
illegality between reasonable people cannot be disputed, i.e. when it creates a manifest,
obvious, significant and unacceptable imbalance, the term can be declared unlawful
(Steennot 2019). In order to give courts guidance when assessing the unlawful nature of
a clause, the legislator has drawn up a number of assessment criteria. In assessing the
unlawful nature of a contractual term, all the circumstances surrounding the conclusion
of the contract, the general economy of the contract, all prevailing commercial
practices, as well as all other terms of the contract or of another contract on which it
depends must be taken into account (Art. VI.91/3 Wetboek Economisch Recht). This
provision illustrates that it is possible to determine the disadvantaged (and thus
vulnerable) party on a case-by-case basis. As in cohabitation relationships, the
determination of the disadvantaged party in business-to-business relationships requires a
factual assessment by the court based on a number of assessment criteria. However, this
has not prevented legislators from adopting protective measures in a business-to-
business context.
A third issue for using the market/home dichotomy as an explanatory
framework, is the fact that protective measures do exist for other intimate relationships
in the family sphere. Marriage law, in particular, generally stipulates many protective
rules, both during marriage and upon divorce. These rules typically include provisions
regarding the spouses’ contributions to the household, the allocation of maintenance or
property upon divorce, the protection of the family home, inheritance rights, and
pension and social security benefits. In some jurisdictions, the same goes for registered
partnership. Because the vulnerable party is protected within marriage and sometimes

also within registered partnership, it is difficult to contend that the market/home
dichotomy underlies non-intervention in informal cohabitating relationships.
This issue is hard to solve when one regards the market/home dichotomy as a
static and monolithic framework, that juxtaposes the market and the home as two
internally homogenous blocks impervious to changes over time. It becomes a different
story when one approaches the dichotomy as a dynamic framework, interfering with the
regulation of the family in different ways over time. Historically, the dichotomy was
used to justify the state's non-intervention in family relations. This is best reflected in
the model of the patriarchal family, which held deep-seated assumptions about the
natural and legal subordination of women at its core (Fredman 1997). In the patriarchal
family, all marital and parental power was concentrated in the hands of the pater
familias. Women lacked the legal capacity and economic resources to counterbalance
this absolute power, and the market/home dichotomy was instrumental in removing
family dynamics from state supervision. Over time, the ideas of the Enlightment
gradually found their way to the family as well, leading to the introduction of autonomy
and equality into the family law framework and the legal emancipation of women
within the family (Antokolskaia 2006; Fredman 1997). This evolution has to a large
extent resulted in the dismantling of the separate spheres ideology.
However, this does not mean that the market/home dichotomy has completely
disappeared. Rather, it seems to re-emerge in a different guise. As previously outlined,
vulnerabilities exist in both the market and the family, but in many jurisdictions the
state only responds to the vulnerabilities in the market. It could be argued that this
unwillingness to regulate vulnerabilities within the family reflects a new manifestation
of market/home dichomoty, where vulnerabilities within the family are not considered
significant enough to warrant legal regulation. This interpretation would require a

dynamic understanding of the market/home dichotomy, which has evolved since its
original conceptualisation in liberal and feminist legal theory. In this view, the legal
regulation of marriage can be traced back to the historical conceptualisation of the
market/home dichotomy, while the current reluctance to regulate vulnerabilities in
cohabiting relationships is partly motivated by a new manifestation of the market/home
dichotomy.
This dynamic understanding of the market/home dichotomy ties in with previous
scholarship that has also explored alternative interpretations of the dichotomy. In
particular, Olsen (1983) has presented two alternative theories for understanding the
dynamics between the family and the market that move beyond the conventional
conceptualisation of the market/home dichotomy. The first is the lag theory, which
highlights the evolutionary nature of the regulation of the market and the family.
According to the lag theory, the legal regulation of the market and the family go
through similar stages, but the family lags one stage behind the market. With the shift
from the free market to the welfare state, protective market regulations for vulnerable
groups gained ground. Lag theory suggests that the family is undergoing a similar
transformation, albeit at a different pace. As women's emancipation initially led to a
growing liberalisation and privatisation of the family, we are now transitioning towards
the regulated family stage, which permits the implementation of protective regimes for
vulnerable groups. The extensive use of protective measures in economic relationships
may suggest that comparable measures will soon become common in the family sphere
as well. In this view, the non-regulation of unmarried cohabiting relationships would be
a matter of time, rather than a matter of separate spheres.
While the lag theory is alluring, Olsen points out that it also reinforces our
image of the family as a backward institution, sustaining its devalued position, and that

it fails to account for the mutual interplay between the family and the market. She
therefore presents a second alternative interpretation, the negotiation theory, which
overcomes these problems. The negotiation theory approaches the market and the
family as ideologies, rather than as actual contrasting spheres. The market/home
dichotomy thus forms a heuristic framework for critically questioning the values of the
other sphere. What the market can learn from the family, is its emphasis on altruism
instead of individualism. What the family can learn from the market, is its focus on
substantive equality between the parties, allowing for market corrections if needed to
remedy factual inequalities, and its refusal to accept historical hierarchies.
Olsen's negotiation theory shifts the focus to using the market/home dichotomy
as a heuristic framework rather than an explanatory one. In this model, the question of
whether the market/home dichotomy can explain the diverging legal protections in the
family and the market becomes secondary to how the dichotomy can be used to critique
them. By using the market/home dichotomy as a heuristic framework to challenge
ideologies and underlying values, instead of an explanatory framework, the dichotomy
also transcends its historical heteronormative underpinnings. I already explained that
most feminist research on the market/home dichotomy assumed a heteronormative
model of the family. The dichotomy has indeed been most effective in challenging
hierarchies between men and women and gendered perceptions in the family. I also
showed how LGBTIQ+ families redefine traditional notions of public and private that
form the basis of the market/home dichotomy. By using the market/home dichotomy as
a dynamic heuristic framework for questioning market and family ideologies, it remains
relevant beyond the heteronormative family model. According to that view, market
values and family values may challenge and inspire each other. The exact demarcation
of the public and private spheres hence becomes less important than the values that

public and private norms embody. Market values may thus continue challenging the
family, including non-traditional families. Moreover, non-traditional families and the
market (at least in welfare states) share that they are not rooted in historical hierarchies.
In that way, non-traditional families might share the market focus on substantive
equalities, thus adding to the critique on the non-protection of vulnerable partners in
cohabiting relationships.
I now return to Bouwman’s (2023) framework on the characteristics of
vulnerable groups in contract law. According to Bouwman, vulnerable groups are
targeted for special protection because of their lack of bargaining power, lack of
information, lack of cognitive capacity, and lack of ability to resist. All of these
characteristics are also present in vulnerable partners in cohabiting relationships. Yet
many jurisdictions still hesitate to extend protective market mechanisms to the family
sphere. By exposing and comparing the ideologies that underlie the market and the
family, the market/home dichotomy remains a useful framework to challenge this
diverging legal approach. In this article I have initiated such a critical comparison using
Belgium as a case study. However, the relevance of this exercise is not limited to the
Belgian context. In fact, the Belgian regime is representative of many other jurisdictions
that also refuse to provide a default protection for cohabitants on the grounds of
autonomy. My analysis shows that such objections do not exist in the economic sphere
to the same extent, and thus hopefully provides a lever for change in the family sphere
as well.
Conclusion
This article examines the extent to which the market/home dichotomy underpins the
contrasting legal protections in cohabiting and economic relationships. It argues that the
reluctance to regulate vulnerabilities in cohabiting relationships – but not in the market

– can be seen as a new manifestation of the market/home dichotomy. The dichotomy
may thus help to explain why many Western jurisdictions take a split approach to
protecting the vulnerable party in cohabiting and economic relationships. However, it
concludes that the dichotomy is most valuable as a heuristic framework for challenging
the ideologies that inspire the market and the family, rather than as an explanatory
framework. How the dichotomy can be used to critique the values underlying the
market and the family thus takes precedence over the question of whether the
dichotomy can fully explain the divergent legal protections in the family and the
market. Including the perspective of non-traditional families only reinforces this
conclusion.
References
Aerts, M., 2024. Vermogensverschuivingen tussen echtgenoten en ongehuwde
samenwoners. Brussel: Larcier/Intersentia, 172-198.
Aloni, E., 2013. Registering Relationships. Tulane Law Review, 87, 587-589.
Antokolskaia, M., 2006. Harmonisation of Family Law in Europe: A Historical
Perspective. A Tale of Two Millenia. Antwerp: Intersentia, 191-208.
Antokolskaia, M., 2012. Economic Consequences of Informal Heterosexual
Cohabitation from a Comparative Perspective: Respect Parties’ Autonomy or
Protection of the Weaker Party? In: A.L. Verbeke, J.M. Scherpe, C. Declerck, T.
Helms and P. Senaeve, eds. Confronting the frontiers of family and succession
law: liber amicorum Walter Pintens, Antwerp: Intersentia, 43-45.
Bessière, C., and Gollac, S., 2020. Le genre du capital - Comment la famille reproduit
les inégalités. Paris: La découverte.
Blumberg, G. G., 1981. Cohabitation without Marriage: A Different Perspective. UCLA
Law Review, 28, 1160-1164.
Boele-Woelki, K., Ferrand, F., González Beilfuss, C., Jänterä-Jareborg, M., Lowe, N.,
Martiny, D. and Todorova, V., 2019. Principles of European Family Law
Regarding Property, Maintenance and Succession Rights of Couples in de facto
Unions. Cambridge: Intersentia, 57-59.

Böök, B., van Hoof, F., Senden, L., and Timmer, T., 2020. Gendering the COVID-19
crisis: a mapping of its impact and call for action in light of EU gender equality
law and policy. European equality law review, 2020 (2), 22-44,
https://www.equalitylaw.eu/downloads/5300-european-equality-law-review-2-
2020-pdf-1-446-kb.
Bouwman, T., 2023. Nudging in het contractenrecht ter bescherming van zwakkere
partijen. The Hague: Boom juridisch,
https://dspace.library.uu.nl/handle/1874/427393.
Bowman, C.G., 2010. Unmarried Couples, Law, and Public Policy. Oxford: Oxford
University Press, 47-53.
Boyd, S., 1999. Family, Law, and Sexuality: Feminist Engagements. Social & Legal
Studies, 8 (3), 377-378.
Cooper, D., 2000. And You Can’t Find Me Nowhere’: Relocating Identity and Structure
within Equality Jurisprudence. Journal of Law and Society, 27(2), 264-271.
Cossman, B., 2002. Family Feuds: Neo-Liberal and Neo-Conservative Visions of the
Reprivatization Project. In: B. Cossman and J. Fudge, eds. Privatization, Law,
and the Challenge to Feminism, Toronto: University of Toronto Press, 179-217.
Crenshaw, K., 1989. Demarginalizing the Intersection of Race and Sex: A Black
Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and
Antiracist Politics. University of Chicago Legal Forum, 1989, 154-156.
Delap, L., 2020. Feminisms. A Global History. London: Pelican Books, 101-140.
Diduck, A., 2023. Laws’ Families 20 years later: The Challenges of Modern Family
Justice. Keynote at the 18th World Conference (Golden Jubilee Conference) of
the International Society of Family Law, Rethinking Law’s Families & Family
Law?, 12-15 July Antwerp.
Duggan, L., 2002. The New Homonormativity: The Sexual Politics of Neoliberalism.
In: R. Castronovo and D. D. Nelson, eds. Materializing Democracy: Toward a
Revitalized Cultural Politics, Durham: Duke University Press, 175-194.
Eggermont, S., 2016. Tweerelaties. Huwelijk, wettelijke samenwoning en feitelijke
samenwoning juridisch ontleed. Antwerp: Intersentia.
Ertman, M., 2005. The Business of Intimacy. Bridging the Private-Private Distinction.
In: M. A. Fineman and T. Dougherty, eds. Feminism Confronts Homo
Economicus: Gender, Law, and Society. Ithaca: Cornell University Press, 468.
Estin, A. L., 2001. Ordinary Cohabitation. Notre Dame Law Review, 76 (5), 1381-1392.

Ettelbrick, P., 1989. Since when is marriage a path to liberation. Out/Look: National
Lesbian & Gay Quarterly, 6, 14-16.
Fineman, M. A., 2008. The Vulnerable Subject: Anchoring Equality in the Human
Condition. Yale Journal of Law and Feminism, 20 (1), 1-23.
Fineman, M. A. and Grier, A., eds, 2013. Vulnerability. Reflections on a New Ethical
Foundation for Law and Politics. Farnham: Ashgate Publishing.
Fletcher, R., 2002. Feminist Legal Theory. In: R. Banakar and M. Travers, eds. An
Introduction to Law and Social Theory. Oxford: Hart, 135-154. Post-print
version available from:
https://www.researchgate.net/publication/277248454_Feminist_Legal_Theory.
Fredman, S., 1997. Women and the Law. Oxford: Oxford University Press, 7, 1-58.
Gan, O., 2019. Anti-stereotyping theory and contract law. Harvard Journal of Law and
Gender, 42 (1), 84.
Garrison, M., 2008. Nonmarital Cohabitation: Social Revolution and Legal Regulation.
Family Law Quarterly, 42 (3), 315.
Garwood, E., 2016. Reproducing the Homonormative Family: Neoliberalism, Queer
Theory and Same-sex Reproductive Law. Journal of International Women's
Studies, 17(2), 9-10.
Glendon, M., 1989. The Transformation of Family Law. Chicago: The University of
Chicago Press, 253.
Goossens, E., 2021. One Trend, a Patchwork of Laws. An Exploration of Why
Cohabitation Law is so Different throughout the Western World. International
Journal of Law, Policy and the Family, 35 (1), 1-36,
https://doi.org/10.1093/lawfam/ebaa017.
Goossens, E., Bollen, K., and Verbeke, A. L., 2023. Waarover maken feitelijke
samenwoners ruzie? Een empirisch-juridische dwarsdoorsnede van de
rechtspraak feitelijke samenwoning. Tijdschrift voor Privaatrecht, 60 (3), 424-
425, 429, 439-440.
Halley, J., and Rittich, K., 2010. Critical Directions in Comparative Family Law:
Genealogies and Contemporary Studies of Family Law Exceptionalism.
American Journal of Comparative Law, 58 (4), 754-758.
Hendrickx, F., 2023. Inleiding tot het Belgische arbeidsrecht. Bruges: die Keure.
Hochschild, A., 2012. The Second Shift. Working Families and the Revolution at Home.
3rd ed. New York: Penguin Books.

Jänterä-Jareborg, M., Brattström, M. and Eriksson, L., 2015. National Report: Sweden.
In: Commission on European Family Law, ed. Informal relationships.
http://ceflonline.net/wp-content/uploads/Sweden-IR.pdf, 2-4.
Keren, H., 2019. Feminism and Contract Law. In: R. West and C.G. Bowman, eds.
Research Handbook on Feminist Jurisprudence. Cheltenham: Edward Elgar,
410.
Kline, M., 1989. Race, Racism, and Feminist Legal Theory. Harvard Women's Law
Journal, 12, 130-131.
Knapp, M., 2020. Protection of a Weaker Party in Public Interest. Material Scope of the
Directive on Unfair Trading Practices in Business-to-Business Relationships in
the Agricultural and Food Supply Chain. Public Governance, Administration
and Finances Law Review, 5 (1), 63.
Landes, J. B., ed, 1998. Feminism, the Public and the Private. Oxford: Oxford
University Press.
Leleu, Y.-H., 2021. Droit patrimonial des couples. Brussels: Larcier.
Leleu, Y.-H., Alofs, E., Harmel, C., and Peters, M., 2024. La transmission genrée du
capital familial. Étude juridique et empirique pour l'Institut pour l'égalité des
femmes et des hommes. Brussels: Larcier/Intersentia, 272-275.
Marvin v. Marvin, 557 P.2d 106 (Cal. 1976).
Mason, G., 1995. (Out)Laws: Acts of Proscription in the Sexual Order. In: M. Thornton,
ed. Public and Private. Feminist Legal Debates. Melbourne: Oxford University
Press, 66-88.
Miles, J., 2017. Unmarried Cohabitation in a European Perspective. In: J. M. Scherpe,
ed. European Family Law Vol. III, Cambridge: Intersentia, 94-98.
Neave, M., 1995. Private Ordering in Family Law – Will Women Benefit? In: M.
Thornton, ed. Public and Private. Feminist Legal Debates. Melbourne: Oxford
University Press, 144-149.
OECD, 2024. Time spent in unpaid, paid and total work, by sex.
https://www.oecd.org/gender/data/time-spent-in-unpaid-paid-and-total-work-by-
sex.htm.
Okin, S. M., 1989. Justice, Gender and the Family. New York: Basic Books, 140.
Olsen, K., 1983. The Family and the Market: A Study of Ideology and Legal Reform.
Harvard Law Review, 96 (7), 1497-1528.

Pateman, C., 1983. Feminist Critiques of the Public/Private Dichotomy. In: S. I. Benn
and G. F. Gaus, eds. Public and Private in Social Life. New York: St. Martin’s
Press, 281.
Polikoff, N., 1993. We Will Get What We Ask For: Why Legalizing Gay and Lesbian
Marriage Will Not Dismantle the Legal Structure of Gender in Every Marriage.
Virginia Law Review, 79, 1535-1550.
Profeta, P., 2021. Gender Equality and the COVID-19 Pandemic: Labour Market,
Family Relationships and Public Policy. Intereconomics, 56(5),
https://www.intereconomics.eu/contents/year/2021/number/5/article/gender-
equality-and-the-covid-19-pandemic-labour-market-family-relationships-and-
public-policy.html.
Pintens, W., Declerck, C., Du Mongh, J., and Vanwinckelen, K., 2010. Familiaal
vermogensrecht. Antwerp: Intersentia, 505.
Scherpe, J. M., 2012. Marital Agreements and Private Autonomy in Comparative
Perspective. In: J. M. Scherpe, ed. Marital Agreements and Private Autonomy
in Comparative Perspective. London: Hart Publishing, 443–446.
Scherpe, J. M., and Hayward, A., ed, 2018. The Future of Registered Partnerships.
Cambridge: Intersentia.
Scherpe, J. M., and Hayward, A., ed, 2024 (forthcoming). The Legal Status of De Facto
Relationships. Cambridge: Intersentia.
Schrama, W., 2004. De niet-huwelijkse samenleving in het Nederlandse en Duitse recht.
Amsterdam: Stichting tot Bevordering der Notarile Wetenschap, 382-396.
Schrama, W., 2008. The Dutch Approach to Informal Lifestyles: Family Function over
Family Form? International Journal of Law, Policy and the Family, 22, 314-
315.
Schrama, W., Tigchelaar, J. and Yildiz, Y., 2020. De rol van de staat in het relatierecht.
In: W. Schrama en S. Burri, eds. Verantwoordelijkheden in het familierecht: de
rol van staat, familie en individu. The Hague: Boom juridisch, 11-77.
Scott, E. S., 2004. Marriage, Cohabitation and Collective Responsibility for
Dependency. University of Chicago Legal Forum, 256–257.
Singer, J. B., 1992. The Privatization of Family Law. Wisconsin Law Review, 1992(5),
1443-1568.
Solnit, R., 2013. In Praise of the Threat: What Marriage Equality Really Means. In: R.
Solnit, 2014. Men Explain Things to Me. Chicago: Haymarket Books, 62-63.

Steennot, R., 2019. Commentaar bij artikel VI.91/3 WER. In: R. Steennot, G.
Straetmans, J. Stuyck and H. Vanhees, eds. Economisch recht. Artikelsgewijze
commentaar met overzicht van rechtspraak en rechtsleer (OHRA). Mechelen:
Wolters Kluwer Belgium, 3.
Swennen, F., 2015. Private Ordering in Family Law: A Global Perspective. In: F.
Swennen, ed. Contractualisation of Family Law - Global Perspectives, Cham:
Springer, 1-59.
Thornton, M., 1995. Preface. The Cartography of Public and Private. In: M. Thornton,
ed. Public and Private. Feminist Legal Debates. Melbourne: Oxford University
Press, xiii, and 2-16.
Verbeke, A. L., Alofs, E., Defever, C., and Mortelmans, D., 2015. Gender Inequalities
and Family Solidarity in Times of Crisis. In: L. Cornelis, ed. Finance and Law:
Twins in Trouble. Cambridge: Intersentia, 59-66.
Verza, A., 2022. Vulnerability, Justice and Care. Oñati Socio-Legal Series, 12 (1), 211–
230, https://doi.org/10.35295/osls.iisl/0000-0000-0000-1254.
Vider, S., 2021. The Queerness of Home. Gender, Sexuality & the Politics of
Domesticity after World War II. Chicago: The University of Chicago Press.
Warren, K., 2007. Separate Spheres: Analytical Persistence in United States Women’s
History. History Compass, 5(1), 262–277.
Women and Equalities Committee, House of Commons, 2022. The rights of cohabiting
partners. Second Report of Session 2022–23.
https://committees.parliament.uk/publications/23321/documents/170094/default/
.
Young, I. M., 1998. Impartiality and the Civic Public: Some Implications of Feminist
Critiques of Moral and Political Theory. In: J. B. Landes, ed. Feminism, the
Public and the Private. Oxford: Oxford University Press, 442.
Young, M., 2013. Gender and Terrain: Feminists Theorize Citizenship. In: M. Davies
and V.E. Munro, eds. The Ashgate Research Companion to Feminist Legal
Theory. London: Routledge, 177-195.

i
I am grateful to Ursula Basset, Martha A. Fineman, Hila Keren, Dafni Lima, Alice Margaria,
Marie Spinoy, the anonymous reviewers, and the participants to the 2024 Workshop ‘FLT at
40: The Family and the Constitution of Everyday Life’ at Emory University School of Law
for commenting on earlier drafts of this article. I have benefited greatly from their insightful
feedback, which will continue to shape my scholarship in the years to come. All remaining
mistakes are my own.