The Family Economy versus the Labour Market (or Housework as a Legal Issue)

This chapter examines freedom of contract as a possible factor of cultural and social change in family relations. It aims at answering to the following question: To what extent can private ordering within the family equal self-determination and social enhancement for men and women, both in terms of personal liberty and wealth redistribution? The legal status of housework proves to be crucial here. So the analysis addresses housework as a legal issue affecting gender relations within both marriage and cohabitation arrangements (unmarried couples) and draws on two lines of reasoning. On the one hand, it considers that familial solidarity – in spite of the presumed contractualisation of the family - continues to play a role in the legal regulation of the household beginning with the construction of rigid oppositions between the family and the market, and between (unpaid) housework and (paid) market work. On the other hand, it challenges the idea of freedom of contract as the solution, as long as contract law is deployed with a gender-neutral approach which underestimates how deeply social and legal norms, ranging from gender roles to the opposition between paid and unpaid work, affect the bargaining power of men and women within the family, the market, and society. The investigation about the role played by the legal treatment of housework in family matters is carried out through the lens of US, UK and Italian case laws on domestic agreements and contractual arrangements in consideration of divorce. It highlights that, by disregarding the importance of housework, childcare and other unpaid contributions typically made by women to the family economy and treating them instead simply as instances of love and affection, family law adjudication negatively affects women’s position both within the family and the market. On the contrary, the reappraisal of unpaid housework emerges as a central factor in realizing contractual fairness in family matters. Under such conditions contracts expand people’s free choice within the family contributing to affirm progressive values in the legal system and society.