NOTARIAL PRACTICE

Commercial property law and property finance requires a thorough understanding of various aspects of our law including land registration and conveyancing, leases, servitudes, construction law, town planning, insolvency, finance and financing structures, mortgage and other securities, company law, the law of contract, the rules of the JSE and taxation.

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NOTARIAL PRACTICE

NOTARIAL PRACTICE

Our comprehensive and highly acclaimed notarial drafting and authentication service can assist you with the following:

Documents that are to be used outside the Republic of South Africa and by law or legal requirement must be certified by or signed in the presence of a Notary Public
Obtaining an apostille certificate (together with the requisite authentication from the Department of Foreign Affairs – if so required) which need to be attached to the above to make the authentication legally valid for use outside the Republic of South Africa (e.g. consent for minor children to travel abroad, selected visa and job applications, powers of attorney, affidavits)
Drafting and / or execution of certain documents such as the registration of property rights, mineral and mining rights and antenuptial contracts

Antenuptial Contracts

An antenuptial contract is an essential document that, under South African law, determines whether your marriage will exist in community of property or out of community of property, with or without the accrual system.

South African law recognises two forms of civil unions, marriages and civil partnerships, and for both forms of union it is prudent to consider an antenuptial contact. Civil unions include marriages and civil partnerships between same sex couples.

The matrimonial property regime that applies to a marriages or civil partnership will determine how spouses are able to effectively manage the assets owned by prior to and during the union and how assets will be divided and distributed upon the dissolution of the union by death of one of the spouses or by divorce.

It is essential that the most appropriate matrimonial property regime id determined by spouses prior to their union and that is incorporated in an antenuptial contact. The contact must be attested by a notary public and signed by both parties before the solemnisation of the union. If spouses do not enter into a antenuptial contact prior to the union, the matrimonial property regime that will apply to the union will automatically be in community of property.

Securing your future through this important document offers a number of benefits by, for example:

Preventing your intended marriage from automatically being in community of property
Offering transparency in your relationship by recording the rights, duties and consequences (legal and proprietary) of your marriage
Preventing unnecessary disputes with your spouse down the line

We offer a fully comprehensive service to local and foreign couples which includes the following:

An initial one-hour consultation at our offices
Drafting a tailor-made antenuptial contract
A follow up consultation to sign the contract
A letter for your marriage officer confirming that a contract has been executed
Lodging the contract at the Deeds Office
Notifying you that the contract has been registered and providing you with a scanned copy of it

There are three basic forms of antenuptial contracts.

1. Unions In Community Of Property

The consequence of a union concluded in community of property is that all assets owned and liabilities owed by the spouses before and after the union is shared and included in the spouses' joint estate. The spouses have shared equal powers in respect to the assets of the joint estate and in certain instances are restricted in dealing with the joint assets.
During the union, all assets acquired fall into the joint estate, but all losses are shared too.
This means that all the assets are vulnerable to the creditors of either party and that very little can be done to protect the joint estate from this exposure. This makes it very difficult for the spouses to adopt effective estate planning mechanisms to protect the assets from risk.

2. Unions Out Of Community Of Property With Accrual ("The Accrual System")

Every union that is entered into out of community of property in term of an antenuptial contact is subjected to the accrual system, unless accrual sharing in excluded. Spouses in a union out of community of property do not share ownership of the assets that they own prior to or during the union and they remain separately responsible for the respectively liabilities. Their estates remain entirely separate and there is no sharing of profits or losses during the union.
The incorporation of accrual system results in the equal sharing of value of assets acquired by the spouses during the union.
The accrual in a spouse's estate is determine by calculating the difference between the value of assets of each spouse at the commencement of the union and at the dissolution of the union, and the accrual in both estates is then shared equally.
The accrual is only calculated upon the dissolution of the union. Certain assets can be excluded from the operation of the accrual system.
This system has the advantage of sharing as contemplated in an in community of property union as well as the advantage of spouses being able to protect their estate from claims of the each other's creditors.
The accrual system is a flexible property regime and allows for effective estate planning.

3. Out Of Community Of Property' Excluding Accrual System

The third matrimonial property regime is one that excludes the sharing of assets and liabilities as well as profits and losses during and in dissolution of the union. The accrual system has to be expressly excluded in the antenuptial contact. The consequence of this regime is a complete separation of assets owned and liabilities and owed respectively by the parties. Although tis system has advantages in certain circumstances, it can result in inequitable consequences and can limit estate planning initiatives of the spouses.
The court when granting a decree of divorce has no discretion to assist a spouse by effecting a sharing of assets.

The terms of an antenuptial contact can be flexible and can be drafted to accommodate th specific needs of the spouses, subjecting to the terms not being contrary to public policy. This is a brief synopsis of our law pertaining to antenuptial contacts and intended spouses are well advised to seek legal advice regarding the matrimonial property regime that best suits their circumstances.