“legally binding contracts in family and social matters have both positive as well as negative sides”
Before discussing or making comment on the topic we must have a clear idea on some elements like Legal contract, the law regarding Social and Family matters. First come Contracts. According to IACCM, a contract is an agreement. And this agreement must have a lawful object entered into voluntarily by two or more parties. And off course there should be legal obligations for all the parties involved in that contract. If the terms and conditions are broken by any party of the contract then they must be punished by the law. And another important point regarding contract is all the parties involved with the contract must follow the terms and conditions. Offer and acceptance are major parts of any legal contract. Without Offer and acceptance from two or more parties no legal contract can be formed.
Now we normally find that there is not any kind of pressure from the Court or the authority that all the Family and Social matter should be legally binding contract. According to The Muslim Family Laws Ordinance, 1961 it is not necessary that, each and every family matter should be legally binding contract. MOWCA also do not say anything about the necessity of legal contract regarding family matters. There are many solutions of any Family matter before going to court and thus it is not mandatory to make legal contract regarding all family matters. For the social matters, also it is not mandatory to make legal contracts.
Now we need to know what an agreement is. An agreement establishes the first stage in the existence of a contract. The three main elements of contractual formation are whether there is (1) offer and acceptance (agreement) (2) consideration (3) an intention to be legally bound.4
My belief regarding this topic (In family or social matters there can be legally binding contract) that in family or social matters (most the matters) can be legally binding contract. And now days it is very important binding the family matters and social matters with legal contracts for avoiding any future problems.
There might me controversies about the topic (In family or social matters there can be legally binding contract). But I will support this topic. I have my own explanations regarding this. I have seen and read various examples about these family and social matters. Sometimes very little problems become much bigger because at the primary stage they were not legal contracts. For example, a family matter, where a husband’s promise to pay his wife an allowance of £30 a week, during his absence on business – was deemed unenforceable. Here, it was stated that as a general rule, agreements between spouses would not be legally enforceable.5Now when a women gets married with a man, it becomes the responsibility of the man to take assure the financial security for the women. It means that the man should manage the expenditure of the women. But this is not actually written in any contract paper. So as a result in village area of Bangladesh after the marriage the man sometimes starts treating the women just like a slave. Sometimes the man starts denying about the financial security of the women.6 My point in this case is that if there were legal contract about the financial security of the women after marriage (not divorce) these types of problems might be avoided easily. Although in Bangladesh the Muslim women gets right on Property, Marriage, Divorce and connecting matters, Maintenance, Guardianship of Children and Fundamental rights. 7 But the maintenance point is always neglected in rural areas.
5 See Social and domestic agreements (Creation of legal relations in English law) http://en.wikipedia.org/wiki/Creation_of_legal_relations_in_English_law
6 See Social Security for Women http://www.nwlc.org/our-blog/social-security-womens-security
7 See The Status of Women under Domestic Laws in Bangladesh; Comparative Study Between Muslim, Hindu And Christian http://www.lawyersnjurists.com/articles-reports-journals/law-and-ethics/status-women-domestic-laws-bangladesh-comparative-study-muslim-hindu-christian/ 2
A social matter is an issue that relates to society’s perception and views of people’s personal lives and day to day life. Different societies have different perceptions. These may be normal behavior to some of them. One specific behavior in one society may be just treated as normal in society, but in the other hand this is a significant social issue in another society. Social matters are distinguished from economic issues, in law practice the social issues are normally solved outside the court. But if there it is not solved then the parties may be go to court. If it is like social matters, there are much more problems. For example, some people of a same block make a car parking to use it mutually. But there is not any legal contract among them. After a long time when conflict arises it is really heard to solve the problem now. But if at the first place there was any legal contract made, it was possible to avoid the conflict. 8
Positive Side of legally binding contracts in family and social matters:
- It can help to avoid the future conflicts and confusions.
- All the parties get a clear idea about the contract.
- In family matter the women gets security.
Negative side of legally binding contracts in family and social matters:
1. If the parties are not that much educated, then the other party may get some extra facilities while coming up with the contract.
2. Sometimes it is hard for people involving in making of a legal contract for family matter.
3. If each and every family matters become legally binding contract then it is very hard to manage all the family aspects too.
Why People are not interested:
Ø There are some reasons for what people are not that much interested in legal contracts. Some of them are discussed below:
Ø People are not that much educated about legal contracts.
Ø In the third world country like Bangladesh, people are sometimes afraid of legal terms and conditions. Thus they do not want to involve themselves in legal contracts in any sense.
Ø People are not interested to bring their family life in legal contracts or court.
Ø People cannot assume future problems just in time, until they occurs.
Ø The extra financial cost of involving in a contract is also another reason, although the cost is not that much.
we personally believe that, if there are the rules and regulations regarding legal contract for family and social issues then it will be much easier for people to avoid future problems regarding those issues. Some of the organization like ASKBD in Bangladesh is also trying to encourage people about legal contracts regarding Family and Social matters. If everything comes under proper rules and regulations it will help people to take control of the situation. And thus there will be a smooth legal procedure running for those family and social matters.