Discuss the technical terms, law of contract legal consequences in family issues etc
A contract can be defined as a legally binding agreement. There has to be an agreement between two or more parties, where one offers and the other accepts, forming the consideration for each other. We have to understand that an agreement sometimes cannot be enforced by the courts of law. These are the rules for the formation of contract.
A contract intends to formalize an agreement between two or more parties, in relation to a particular subject. Contracts can cover an extremely broad range of matters, including the sale of goods or real property, the terms of employment or of an independent contractor relationship, the settlement of a dispute, and ownership of intellectual property developed as part of a work for hire. A contract does not always have to be expressed in written form. It can be spoken as well. Also, to understood from the conduct of the parties and the course of dealing between them. The third method of contract formation is quasi contract which deals with certain dealings which are not contracts strictly, though the parties act as if there is one. This method is most relevant to the topic at hand. This is because, it is seen that in family and social matters, most contracts are either just spoken of, or not but it is assumed to be contract.
However it should also be kept in mind that the law states that some common laws are not applicable when there is an emotional attachment between the parties or relations. This will be further explained in the following segments of the paper.
Weather spoken or implied, lawful contracts exists as a constant in our everyday life. Some of them we know of as such a mundane thing that we hardly notice how are it classified. However there are some aspects where lawful contracts do not apply. There exists the possible chance that in family and social matters legally bindings can or cannot exist.
First, here is an elaboration of lawfully binding contracts in context of family matters. The most practiced religion, Islam, has some well established practices which have evolved over time to become custom laws.
Law of Contract
The law of contract deals with those legal relations that arise because of mutual expressions of agreement. The parties have expressed their intentions in words, or in other conduct that can be translated into words.
The belief is not at all uncommon that legal relations called contractual cannot exist unless the parties intended them to exist, and that the sole function of the courts, therefore, is one of interpretation: What was the intention of the parties? This concept is far from correct. Furthermore, the life history if any occur after acceptance of the offer-facts that may gravely affect the existing legal relations and yet may have been utterly unforeseen bythe parties. Many of these unusual legal relations are invariably described as contractual.
Therefore it appears that a necessary function of the courts is to determine the unintended legal relations as well as the intended ones.
Social and Domestic Agreement
The law divides agreement in two groups, social and domestic agreement and business agreement. The law presumes that in family social matters are not always intended to be legal bindings. In the article ‘Intensions to create legal Relations’ by Asif Tufal, he uses the following examples to establish his points:
Lens V Devonshire Club (1914), The Times
Balfour v Balfour (1919) 2 kb 571
Merritt v Merritt (1970) 2 All ER 760
Parker v Clarke (1960) 1 All ER 93
Tanner v Tanner (1975) 1WLR 1346
Jones v Padavatton (1969) 2 ALL ER 616
Simoskin v Pavs (1955) 3 ALL ER 10
To summaries the above, it can be said that the transaction may have contradicting objective. The cases show how it is a difficult task to rebut such a presumption. It is a legal binding when a married couple, man and woman, live together only when the agreement states so. Similarly, it is likewise assumed that the domestic agreement between a parent and a child is also assumed as legal bindings.
The first view about free gifts states it is a straightforward exchange agreement. The second view states that there is no contract. This view is supported by three members of the Court of Appeal, and by Viscount Dilhorne and Russell in the House of Lords. The promise to deliver is not binding. The third view states that there are two contracts involved in the transaction. One is straightforward and the other is a ‘collateral contract’. The term collateral suggests that it should be noted that in return for something, you receive something else. Sale of Goods Act 1893 states that it is not a contract of sale when the consideration for the exchange is not money.
Unlike in other religions, Islam is the only one that follows a registration system from the start of time. After sincere considerations, other religions have also taken upon this practice. However still in countries like ours, Bangladesh, registration of marriage exists only in Islamic religion and none other. In Islam marriage is a contract that states the permission for a man and a woman to live together under one household and legalizes the procreation of children in Bangladesh.
In the Islamic Law the promise the husband makes to a wife is called ‘Mubarah”. This contract states the registration of marriage and divorce. Under the Islamic law, this also includes the delegation of power statement given by the husband to the wife regarding a divorce. Only with this power can the wife chose to divorce her husband. Otherwise, in Islam, the wife can only ask for separation but not a divorce.
Among other contracts in a family there is inheritance, custody of children, maintain ace of spouse and children, guardianship and property. Regarding property the contracts state that it can be leased or rented.
Examples of social contracts include employment contracts, receipts we receive after shopping etc. several laws could be consulted to elaborate on the above mentioned contracts like the Family Laws Act, The Contract Act and the Muslim Law. There are outstanding changes not yet made by the legislation.gov.uk editorial team to Family Law Act 1996. Those changes will be listed when you open the content using the Table of Contents below. Any changes that have already been made by the team appear in the content and are referenced with annotations.
However it has to be understood that not all moral obligations are legal obligations. For example, it is a legal obligation to look after someone under the age of 18, but it is a moral obligation to look after someone who is over the age of eighteen. In the societal context, every citizen is obligated to report wrongdoing if one witnesses any. However citizens are not obligated by law to stop the wrongdoing they witnessed.
If a married couple agrees to the terms on which they will live separately, they may enter into a separation agreement. The essence of a separation agreement is that it is an agreement. Both parties must consent to the terms of the agreement.
However the agreement is also a legally binding contract setting out each party’s rights and obligations to the other. The terms of the agreement are usually reached either through mediation or negotiation through solicitors. If agreement can be reached reasonably quickly between the parties and a separation agreement drawn up, it is cheaper and less stressful than taking a court case. Many couples formalize their separation in this way.
The actual document that is drawn up to reach the agreement is called a deed of Separation which is legally binding contract signed by both parties. Details of the contents of this deed can be found on the Courts Service website and the main issues dealt here are:
- An agreement to live apart
- Agreed arrangements in relation to custody and access to children
- The occupation and ownership of the family/shared home and any other property
- Maintenance and any lump sum payments
- Indemnity from the debts of the other spouse/civil partner
- Succession rights .
Children at the end of your relationship
At the end of a relationship, both parents are responsible for supporting their children financially regardless of where the children will live. Both parents are equally responsible even if they are not named on the child’s birth certificate. It doesn’t matter whether they have got parental responsibility or not. Either parent can be contacted by the Child Support Agency for financial support.
If you are the child’s father, you will not automatically have a right to a say in their future, even though you may be financially supporting them. This will depend on whether you have parental responsibility for your child.
If the father and mother were not married at the time of the birth of the child, the father will have parental responsibility if:
- he registered or re-registered the birth jointly with the mother after 1 December 2003; or
- he and the mother made a formal parental responsibility agreement; or
- a court granted the father legal parental responsibility; or
- He is appointed as guardian.
If you’re the lesbian or gay partner of a child’s parent, there are various ways in which you might have got parental responsibility for your partner’s children.
Among many other more decisions that follow a separation there is what decisions can a court make, Residence order- This is a court order which states who you live with, Contact order- his is a court order which sets out the arrangements for you visiting your parent or any other family member., Parental responsibility order- states who has parental responsibility for you, Agreeing on financial support, Child Support Agency (CSA)- The parent you live with should receive financial help from the other parent to pay towards food, clothes etc, Court orders, Rights to the home for owner-occupiers, Paying the mortgage when a relationship breaks down and Paying the rent when a relationship breaks down.
Personally we understand that yes there can be legal binding contracts in social and family matters. However, many a times there are not the cases. This promotes a very individualistic society, where each person looks after themselves and there is minimum sense of collectivism.
There are certain loopholes to the laws and acts that exists regarding family issues, like, the act that states that all laws do not apply to all situations when there is a family or blood relative involved. In almost all religions marriage is considered a sanction, whereas the actions that follow the fallout of a marriage have well defined lawful enforcements.
Laws vary from culture to culture and from country to country. They even have different names established by different governing bodies. The concluding purpose of this research paper was to shed light to some of these laws based on a set of ethics accepted by society, so that if somebody does something society considers morally wrong, it is generally lawfully wrong also.
Asif Tufal, Intensions to create legal Relations
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