In Family or social matters there can be legally binding contract

“In Family or social matters there can be legally binding contract”-illustrate & explain

INTRODUCTION

A binding contract is a contract or an agreement in writing between two or more individuals or entities in which a court can impose penalties in the event if one party attempts to negate on his or her promise as set forth in the signed document[1]. However there are situations when the contract itself is not considered to be a binding. It usually occurs if the contract terms and conditions are incomplete or uncertain it may be decided that the parties have:

· The parties have not yet reached a concluded agreement; or

· The parties do not intend the agreement to be legally binding; or

· Simply that the agreement cannot be enforced.

ESSENTIAL FEATURES FOR A CONTRACT

There are certain essential features for a contract which are as follows:

The following features must be present in a contract to make it legally enforceable.

· Offer: An expression on willingness to be bound on terms. Terms established by the party which offers here – and only those included at this stage form part of the contract.

· Acceptance: The party(s) to whom the offer has been made communicates a full and unconditional acceptance of the terms of the offer (exceptions exist in unilateral offers and the postal rule).

· Consideration: The bargain element of the contract, also known as ‘the price of a promise’. A simple contract may be a bad bargain, but it must be a bargain to be enforceable.

· Intention: The parties must intend that the agreement is to establish a legally binding contract rather than simply a social/domestic arrangement.

· Certainty: The terms of the contract must be sufficiently clear and precise to be enforceable.

Here we are going to focus on whether in family or social matters there can be a legally binding contract or not.

FAMILY MATTERS

There are several aspects involving family matters that can be considered as a legally binding contract. So here firstly we are going to focus on the family matters, whether it has a legally binding contract or not.

Marriage and divorce as a family matter- a legally binding contract or not

Firstly we can look into the area of a marriage. By the term marriage we can define it as a social union or legal contract between people called spouses that establish rights and obligations between the spouses, between the spouses and their children, and between the spouses and their in-laws. So by looking at the definition of marriage we can say that there is a binding contract between the members or more specifically there is a binding contract between the husband and the wife who did get married to each other. However there are certain areas where there is no legal binding for the parties.

There are certain issues that have been raised that falls under the contract of marriage. The most crucial aspect that makes a marriage a legally binding contract is during the separation of the partners from each other which we refer to it as a divorce. After the partners are separated from each other there are certain issues that are to be solved.

A separation agreement usually describes the terms of the separation between the partners. The lawyers are here involved to advise the partners on what terms will best protect their interests and will best meet their needs. Following are some aspects to include in an agreement[2]:

  • The issue of the primary custody of the children: Firstly we can see that if the partners did have a child or children it is through the law they will have to decide who among them will take the primary custody of their child or children or if the custody is to be shared or not.
  • The arrangements for access to the children: Here we can see that if the parents are divorced it is by law they will have to decide the arrangements for access to their children.
  • The arrangements for child support: The arrangements for child support are also to be decided whether it is going to be provided by the father or mother after the parents are divorced.
  • Whether one spouse will pay maintenance for the other, and if so, how much and for how long: This is usually a very crucial aspect as because after there is divorce the spouses tend to avoid taking up the maintenance cost for each other. This is very common among the husbands in a broken marriage who completely tend to avoid the maintenance cost of their family. So here due to the legally binding contract, the law enforces the spouse to pay for the maintenance cost for the other and decides the amount and the duration till which the payment has to be maintained.
  • Will the family home be sold; if not, who will live there: The division of the living place is also a very important as because it becomes very difficult to decide which partner is going to remain the owner of the house after the separation. So this is when the law decides whether the family home is to be sold or if not sold which of the partner will be living there. The law also gives the partners some options such as:

· Sell the house and split the profits

· Buy the house from your spouse

· Sell your equity in the house to your spouse

· Maintain joint ownership

  • Who will pay for the mortgage, the repairs, and insurance on the home: This entirely depends upon the court to decide who will be paying for the mortgage, repairs and insurance of the home. This is usually paid by the one who gets the chance of living there.
  • If the home is sold, how will the profit be divided: This is an aspect which usually occurs when after the divorce the home of the partners are sold and the topic of the distribution of the money raised from selling the house arises. This is when the legal matters come into action when the court decides how the profit is going to be allocated which is mainly based on the contribution each partner has made while buying the house.
  • How will family debts be paid: The debts in which the family is involved must be paid by the partners and the contribution that is to be made is decided by the law.
  • Who will pay for insurance policies and who will be the beneficiary: If there are any insurance policies taken, after a divorce it is decided by the law if the partners cannot fix it themselves that who will pay for the insurance policies and who will ultimately be the beneficiary.
  • How will the agreement be adjusted if circumstances change: If circumstances change the agreement is most likely to be adjusted by the law.

From the above aspects we can see that there are issues that need to be solved through legal actions after the marriage between partners are broken.

On the other hand the period of separation starts from when the partners start living separately. The term “legal separation” is just a matter of paper which has to be filled up and submitted to the court. However the partners will have to work on factors that have been discussed above as a part of a legally binding contract.

Settling of the property and financial matters in a family – a legally binding contract or not.

The settling of the property and financial matters in a family can occur during two situations:

· Firstly when there is conflict between siblings due to the property left by their parents.

· Secondly when there is separation between spouses.

Conflict between the siblings due to the property left by their parents:

Firstly regarding the division of property between siblings it is said that when someone dies, inherited property is not merely handed out in an arbitrary fashion. The distribution of an inheritance must always follow authorized written instructions. If the decedent drafted a will or trust document before his or her death, those documents provide the authority for an executor or administrator to distribute the property. If someone dies without a will, or “intestate,” then the property of the decedent’s residence will determine the proper recipients for the possessions of the property. There are certain written authorities that we must follow while dividing the property between siblings.

But on the other hand if the siblings are willing to divide the property on their own even when there is no proper estate distribution documents left by the decedent and when there no problem or argument arising due to the division then there is less involvement of the executor or administrator to take the matter to the court.

Finally it can be said that even though there are exceptions where some people do not take the family matter of the distribution of property in to the court but most of the times it has been seen that the siblings themselves drags the family matter to the court as they feel that this family matter is a legally binding contract and has to solved by the support of the law.

Division of property when there is a separation between the spouses:

The division of the properties between spouses has been a crucial issue after their separation. This family matter can be considered as a legally binding contract by a negotiated settlement or through court process. That is why it is why it is said that there are only two ways to get matters resolved when a relationship breaks down – by negotiated settlement or through the court process.

A negotiated settlement

When a relationship breaks down, a negotiated settlement is a settlement with which both parties can live with and can save time, money and stress. A negotiated settlement means that both parties determine the terms of the agreement, with or without legal or other professional help (such as mediators). That agreement should then be converted into a document that is legally binding. Settling will be quicker, easier and cheaper for both parties and probably get them more of what they want than a court decision would.

An agreement can be reached by both in writing or verbally. This is known as an ‘informal agreement’. It can be witnessed by the local Justice of the Peace or can simply be a verbal understanding about how the settlement will occur. However, an informal agreement is not binding on the parties and is not legally enforceable.

Court process

Besides the negotiated agreement which can be both a legal binding when converted to a document and not a legal binding when the agreement is informal, there is court process when the spouses cannot end up satisfying themselves through the negotiated agreement. In the court process it is the court which decides on the division of the property among the spouses. And the court’s decision has to be agreed upon by the spouses as they have no other choices left with them.

So all in all we can say that though there is an informal agreement in the division of property between spouses, in most of the times it has been seen that the division of the property is a legally binding contract as it includes the negotiated agreement and the court process.

SOCIAL MATTERS

Secondly the social matters which can involve a legally binding contract are as follows

The social matters involve ethical considerations. There are certain issues that can have a legally binding contract regarding the social matters.

Consumer protection from misleading marketing activities

In the recent times it has been seen that marketers have become very aggressive to make their products and services successful in the market. In order to do so they are taking every possible step without even thinking of the welfare of the society. Here it has been seen that the marketers are continuously misleading the consumers by showing them irrelevant attributes of the products which does not even exist in the product. This is when the Business Protection from Misleading Marketing Regulations came into action.

The Business Protection from Misleading Marketing Regulations enforced that the advertisements should be truthful should not mislead or be likely to mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise. It also gave the consumers the right to take legal actions against the marketers if they feel that they were in any way cheated or misguided.

So here in this situation the marketers do have a legal binding of not making their advertisements misleading to the consumers.

Protecting the environment as a social matter

There are businesses which create pollution which are harmful for the society. So here in this case we already know that such businesses like the brick factories do have a contract signed with the government regarding the limit of the pollution they can create. But if they cross the limit of creating pollution they will be charged for creating the additional pollution. So this social issue of protecting the environment can act a legal binding contract for the businesses creating pollution.

CONCLUSION

In this report we have concentrated on the issues related to the family matters as well as regarding the social matters and whether they have a legally binding contract or not. Through this research it has been realized that both family as well as social matters do have a certain level of legally binding contract. However we have also have seen that there are situations when individuals do not consider certain family as well as social matters as a legally binding contract.

Overall we can say that the legally binding contract varies from circumstances to circumstances and also varies from people to people whether they actually consider the family as well as social matters as a legally binding contract or not.

Bibliography

Business Dictionary. (n.d.). Retrieved from Business Dictionary: http:/www.businessdictionary.com/definition/binding-contract.html

Marson, J. (n.d.). Essential features of a contract. Retrieved from http://fds.oup.com/www.oup.com/pdf/13/9780199579464.pdf

Separation. (2011, 12). Retrieved from http://www.legalinfo.org/family-law/separation.html

Nischalke, R. (n.d.). Divorce and your house – splitting your assets. Retrieved from http://ricknischalke.hubpages.com/hub/Divorce-and-Your-House

Csiszar, J. (n.d.). How to divide inheritance property between siblings. Retrieved from http://www.ehow.com/how_8787597_divide-inheritance-property-between-siblings.html

Holgate, S. (2012, 12 18). Settling property and financial matters: informal agreements are not legally binding. Retrieved from http://www.slatergordon.com.au/blog/settling-property-and-financial-matters-informal-agreements-are-not-legally-binding/

Holgate, S. (2012, 12 18). Settling property and financial matters: informal agreements are not legally binding. Retrieved from http://www.slatergordon.com.au/blog/settling-property-and-financial-matters-informal-agreements-are-not-legally-binding/

Holgate, S. (2012, 12 18). Settling property and financial matters: informal agreements are not legally binding. Retrieved from http://www.slatergordon.com.au/blog/settling-property-and-financial-matters-informal-agreements-are-not-legally-binding/

Smith, D. (n.d.). Consumer protection and misleading marketing: time to get your house in order. Retrieved from http://plc.practicallaw.com/0-382-2646

[1]http://www.businessdictionary.com/definition/binding-contract.html

[2] Separation. (2011, 12). Retrieved from http://www.legalinfo.org/family-law/separation.html

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