Discuss the viability of the existence of a legally binding contract between two or more parties regarding a family or a social matter
INTRODUCTION:
A legally binding contract from the common sense can be interpreted as a principle or doctrine upon which there has been an agreement between two or parties on a certain issue, keeping the guidelines set by the law in mind. The phrase “legally binding” sets the notion that the parties are lawfully bound to adhere to the conditions set aside in the agreement and therefore a breach in the contract would result in the violation of law leading to the appropriate punishment.
Two areas of our life, where we are being mostly affected regarding all these legal issues are our family matters and social matters. I will be looking at the importance, impact (both positive and negative), and validity of legally binding contracts on family or social matters.
Family matters as we all know are issues which take place within the family. One might ask the relevance of legally binding contracts in family matters as they are not someone unknown with whom we are coming to an understanding but someone who is connected to our blood and on whom we can rely on and trust completely. This a valid logic but sometimes necessity arises to have a legal contract between the family members so as no outside force can influence the family matters and can create an exploitation to harm the family’s interests. Sometimes we also see families particularly having a member who actually wants to harm the interests of the families and wants to fulfill his/her interests when it comes to property allocation. To safeguard against that as well a legally binding contract will come in handy. Overall a legally binding contract will also help to obviously solve, as well as to prevent, family disputes or conflicts.
Social matters as we all know are issues which take place in a society. These issues are relevant to the society we live in which affects the interests of it either in a good way or a bad way. Now, unlike in the family matters, where having a legally binding contract can be optional, social matters do require a great deal of legally binding contracts. Because it is not just the matter of a family rather the well being of a whole society and also this society is inhibited by people maximum of whom we do not know. We are not aware of their intentions and so to protect us from future uncertainty a legally binding contract is necessary.
Now before we embark on the conclusion of whether legally binding contracts are necessary for family matters or social matters, we need to study each of these area’s components in details and also get familiarize with different terms and rule, laws and procedures applied to deal with these two areas and the necessity, implications (both positive and negative), and relevance of legally binding contracts in these two areas.
FAMILY MATTERS:
According to Connecticut, United States of America, issues relating to family matters are:[1]
- Divorce (Dissolution of Marriage and Dissolution of Civil Union)
- Legal Separation
- Annulment
- Name Changes
- Custody of Children
- Civil Restraining Orders (Relief From Abuse)
- Visitation of Children
- Paternity
- Child Support
According to Wikipedia (February 2013), In England, English family law concerns the law relating to family matters in England and Wales. Family law concerns a host of authorities, agencies and groups which participate in or influence the outcome of private disputes or social decisions involving family law. Such a view of family law may be regarded as assisting the understanding of the context in which the law works and to indicate the policy areas where improvements can be made. Family law encompasses divorce, adoption, wardship, child abduction and parental responsibility. It can either be public law or private law. Many of the acts that cover the various family matters under the English law are: Marriage and Civil Partnership, Cohabitation, Domestic violence, Divorce and dissolution, Parental Responsibility, Child’s Upbringing, Children’s Rights, Child Protection, and Adoption.
Bangladeshi law is based on English law and therefore many of the act regarding family matters has a similarity to the English ones, but the difference lies in the fact that as Bangladesh is mostly a Muslim country, so some of the laws have a relevance to the Islamic Sharias. This has been done in order to customize the acts suitable the environment of Bangladesh. Kamal (n.d.) found that we actually have a mix of Muslim Personal Law defined by the principles of Sharia, along with the general law which is non-religious and secular in its character. The Muslim personal law covers the field of marriage, divorce, maintenance, guardianship of children and inheritance whereas the general law covers the rights under the Constitution, penal codes, the civil and criminal procedure codes, evidence act etc.[2] Females are the mostly the subject of family matters violation in our country. They are always being discriminated in family issues giving them the least possible right to speak for what they deserve. The Muslim Personal Law has the provisions for Muslim women helping them to achieve what is rightfully achieve and avoid discrimination. Let us discuss the legal rights of Muslim women in Bangladesh under the following heads according to Kamal (n.d.):
1. Succession and right to property
2. Marriage, divorce and connected matters
3. Maintenance
4. Guardianship of children, and
5. Fundamental rights.
Succession and Right to property:
Kamal (n.d.) noted that, “Muslim law of inheritance has two distinct elements, namely, the customs of ancient Arabia and the rules laid down by the Quran and prophet Mohammad (PBUH). Under the customary law of pre-Islamic Arabia the women in whatever capacity were excluded from inheritance. The Quran made quite a considerable change of the position. According to the Muslim Law there are three kinds of heirs (i) “sharers” who are entitled to a prescribed share of the inheritance, (ii) “residuaries” who take on prescribed share, but succeed to the residue left after satisfying the claims of the sharers, and (iii) “distant kindreds” who are blood relations other than the sharers and residuaries, and succeed generally in the absence of sharers and residuaries.”
Marriage, divorce and connected matters:
Kamal (n.d.) noted that, “Girls who are aged above 18 have the right to marry in their will. Realizing the evil effects of and the injustice inherent in the polygamy of men Muslim Family Laws Ordinance, 1961 was passed. It also has laws regarding divorce and the women can choose to get a divorce provided that her husband has been found guilty of the crime he has been accused of. The Islamic law has a provision for dower not a dowry where the former is an obligatory amount to be paid by the man to his wife.”
Maintenance:
Kamal (n.d.) observed that “In accordance with Muslim Law, the father is bound to maintain his daughter until she is married. The fact that the mother has the custody of the daughter till the latter attains puberty does not relieve the father of his obligation to maintain the daughter. If the father is poor, but the mother is in easy circumstances, the mother has the obligation to maintain the daughter.”
Guardianship of children:
Kamal (n.d.) found out that, “In the matter of guardianship of children, a Muslim woman is definitely at odds. Under Muslim Law, the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian either of the person or property of the child; the father alone, or if he is dead, his executor is the legal guardian.”
Fundamental rights:
Kamal (n.d.) reported that, “These are some of the aspects of the general law, which is non-religious or secular in nature, the most important of which is the constitution. Under the Bangladesh Constitution (The Constitution of the People’s Republic of Bangladesh, 1972), various provisions exist relating to women both directly and indirectly.”[3]
By focusing on the laws for women I have just represented one side of the family law so the explanations are not to be as exhaustive.
SOCIAL MATTERS:
According to Wikipedia (February 2013), “A social issue (also called a social ill or a social problem) is an issue that relates to society’s perception of people’s personal lives. Different societies have different perceptions and what may be normal behavior in one society may be a significant social issue in another society. Social issues are distinguished from economic issues. Some issues have both social and economic aspects, such as immigration. There are also issues that don’t fall into either category, such as wars.Thomas Paine, in Rights of Man and Common Sense, addresses man’s duty to “allow the same rights to others as we allow ourselves”. The failure to do so causes the birth of a social issue. Social issues include amongst other things: Personal Issues vs. Social Issues, Inequality, Social Institutions, Drugs and Crime, Other issues.
LEGALLY BINDING CONTRACTS:
According to Wisegeek (n,d,), “Legally binding simply means that one agrees with the terms under a written or spoken contract to behave in certain ways. The terms and conditions of such a contract can either prohibit or define appropriate behavior under the agreement.
Violation of terms in a legally binding agreement can either void the contract, or cause legal repercussions.”
REASONS:
A number of reasons can be identified for the existence of a legally binding contract in family matters or social matters. The most important ones are:
· To avoid confusion in married life
· To ensure fair and equal distribution of wealth among family members.
· To ensure a safe future for children and other family members.
· To make strong policies in the country to reduce a number of social issues.
· To balance the level of employment.
· To reduce social disputes.
· To reduce crime.
· To control racism.
· To ensure a prosperous nation.
· To strike a balance between personal and social interests.
IMPLICATIONS:
One might ask whether there are any negative impacts of having a legally binding contract. Funny as it might seem to ask this kind of question, let us for the sake of knowledge evaluate the negative side of a legally binding contract.
One might come up with the fact that it gives the either parties the control and power which can eventually be misused. The party on the better side of the contract will be strong enough to be able to use the terms and conditions according to his/her choice and might exploit the weaker party.
Another negative side will be the negative mentality. This happens in case of family matters. The family members might feel insecure that either they do not trust each other or the other member is trying to exploit them legally and gain the upper hand maybe on family wealth.
Another argument might come up by stating that these contracts are sometimes manipulated if one of the parties has a strong hold on the legal authorities. The stronger party will be able influence the contract to be made according to his or choice only therefore exploiting the weaker party.
The positive effects outweigh the negative ones described above. And these can be found in the issues of family and social matters that I have explained earlier and also in the reasons I identified earlier for wanting a legally binding contract.
CONCLUSION:
So after weighing both the negative and positive sides it can be said legally binding contract should exist in both the family and social matters. As the world is becoming more advanced, more and more complex matters are piling up to make our striving in this fast changing world a challenge. The quest to strive has led to competitions taking place and the commonly used way to survive in this competition is by deceiving or forgery or breach or any other form ways deemed to be illegal. People are outplaying each other by tricks, deceit, or any other shortcuts which are bringing down the whole issue to one point: breaking the law. To get rid of this deceit and forgery a legally binding contract acts as a savior.
(2028 words)
REFERENCES:
English Family Law. (2013, February 8). Retrived from
http://en.wikipedia.org/wiki/Social_issue
Family Matters: Frequently asked questions. (n.d.). Retrieved from
http://www.jud.ct.gov/faq/family.htm
Kamal, S. (n.d.). Law for Muslim Women in Bangladesh. Retrieved from
http://www.globalwebpost.com/farooqm/study_res/bangladesh/kamal_law_women.pdf
Social Issues. (2013, February 18). Retrieved from http://en.wikipedia.org/wiki/Social_issue
What does Legally Binding mean? (n.d.). Retrieved from
http://www.wisegeek.com/what-does-legally-binding-mean.htm
[1] “Family matters” available from: http://www.jud.ct.gov/faq/family.htm [Accessed 21 February 2013].
[2] Kamal, S. “Law for Muslim Women in Bangladesh” available from: http://www.globalwebpost.com/farooqm/study_res/bangladesh/kamal_law_women.pdf [Accessed on 21 February 2013].
[3] Kamal, S. “Law for Muslim Women in Bangladesh” available from: http://www.globalwebpost.com/farooqm/study_res/bangladesh/kamal_law_women.pdf [Accessed on 21 February 2013