Abstract
A domestic contract refers to agreement between persons having family relationship and despite the general rule of contract, that parties in social, domestic and family agreements do not have intention to create legal relations, domestic contracts are legally binding. In the context of family law, domestic contracts normally involves marriage contracts and separation agreements which includes among others; pre-nuptial agreement, settlement agreement, division of matrimonial property agreement and custody of children agreement. Despite the common nature and structure of domestic contract as a typical agreement, there are concerns by the family law practitioners that domestic contracts should be interpreted differently from the commercial or other types of contract and judges should have special or additional factors of consideration in giving effect to the contracts. In Malaysia, there is a proposal for the formation of a Family Court to improve procedures and providing a better service to families. The main objective of the Family Court is to empower the parties to resolve their disputes by mutual consent and in a manner that best serves the needs of the children involved. With the proposal for the establishment of family court, it is very important for the issues on interpretation and effect of domestic contract to be highlighted. This paper discusses and compare the approaches which the courts applied in dealing with domestic contracts and commercial contracts. Research methodolgy adopted in this paper are statutory and doctrinal analysis.
Highlights
IntroductionIn Malaysia, the contract law is based on the English law which focuses on the principles decided by the courts
A domestic contract refers to agreement between persons having family relationship and despite the general rule of contract, that parties in social, domestic and family agreements do not have intention to create legal relations, domestic contracts are legally binding
In the context of family law, domestic contracts normally involves marriage contracts and separation agreements which includes among others; pre-nuptial agreement, settlement agreement, division of matrimonial property agreement and custody of children agreement
Summary
In Malaysia, the contract law is based on the English law which focuses on the principles decided by the courts. The laissez-faire principle is applied where parties are free to agree on terms of the contract but when dispute arise, the court retains the power in interpreting and giving effect to terms of the contract. Other than the rules of interpretation, the common law contract applies the principle of intention to create legal relation whereby parties of agreements which fall under family, social and domestic agreement is deem not to have the intention to create legal relation.. Other than the rules of interpretation, the common law contract applies the principle of intention to create legal relation whereby parties of agreements which fall under family, social and domestic agreement is deem not to have the intention to create legal relation.1 This means, in a general sense, agreements entered between husband and wife or between parent and child are not legally binding. It is interesting to see that there are different approaches applied by the courts in interprating domestic contracts compared to general / commercial contracts
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