08 Nov The Role Of A Notary Public When Concluding Your Antenuptial Contract
Couples should address their finances and asset distribution in the event of divorce or death before getting married. One way to protect both their marriage and financial interests is by signing an antenuptial contract (ANC) in the presence of a Notary Public. This contract outlines the terms of their marriage. The Notary Public acts as an impartial witness, verifying the couple’s signatures and ensuring that the contract is legally binding. Additionally, the Notary will provide the couple with a copy of the contract for their records.
Antenuptial contracts must be signed by a notary who is actively practicing and duly admitted. The notary involved in the signing of the document must not have any personal connection to either of the potential spouses; specifically, they cannot be close relatives. The notary’s seal of office, also known as an embossing seal, is typically affixed to the final page of the contract. If the seal is absent, the notary is required to initial each of the inner pages of the contract.
A Notary public is held to a higher standard than attorneys due to their specialised skills. They are responsible for creating and legalising certain documents, and their services must adhere to exceptional ethical standards. While many lawyers prepare antenuptial agreements, they are not authorised notaries. Therefore, to include a seal on the contract, they must engage a notary.
Clients often grant their attorney a power of attorney, which allows the attorney to appear before a notary on their behalf. This arrangement addresses the difficulties often associated with finding and scheduling a notary. The notary’s role is crucial in maintaining the accuracy and integrity of the law, which is why their office is held in such high regard.
The Different Types of Marital Regimes
The choice of whether to conclude an antenuptial contract or not determines your marital regime for the period that you are married. The different types of marital regimes are:
In community of property
Out of community of property with the accrual
Out of community of property without the accrual system
Marriage in Community of Property
Without an antenuptial contract, all marriages are automatically classified as “in community of property.” This is the simplest and most basic form of marital regime when no formal agreement exists. In other words, once the wedding ceremony is complete, all possessions become joint property. If one partner becomes insolvent, neither party enjoys protection under this arrangement. After marriage, the couple’s estates combine to create a joint estate, meaning that both parties are liable for any business risks incurred by either one. Creditors can pursue any assets within the joint estate. Therefore, it’s crucial to carefully consider the risks associated with being married in community of property.
Marriage Out of Community of Property with Accrual
This type of marriage allows both parties to keep their individual assets while also sharing in the accumulation of joint assets. This means that each person is entitled to a portion of the accrued wealth, regardless of who earned it. This arrangement can be particularly advantageous for those with higher earnings, as they will receive a larger share of the accumulated assets.
Additionally, spouses may choose to exclude certain gifts, inheritances, or legacies from the accrual. For young couples, it is advisable to use antenuptial agreements that include accrual when getting married. Such agreements are particularly beneficial for partners who have roughly equal assets before the marriage.
Marriage Out of Community of Property Without Accrual
This is an excellent option for couples who want to establish different ownership rights over their individual estates. It is especially beneficial for those with children from previous marriages, as it helps ensure that their children’s inheritances remain protected from the community property system. Any gifts or inheritances received during the marriage are not considered jointly owned. Additionally, spouses have the freedom to gift or bequeath their property as they choose.
Witnesses to An Antenuptial Contract
It is customary to have the signatures of both intended spouses or their authorised witnesses on antenuptial contracts. While it is advisable to have these documents witnessed, the Registrar of Deeds may waive this requirement if the notarial contract is not signed in front of two witnesses for any reason. Simply signing the papers at home without witnesses is insufficient, and it is also improper to scan and email them to a lawyer or notary for registration.
In conclusion, antenuptial contracts do not need to be lengthy. In most cases, contracts exceeding three to four pages can confuse one party. Therefore, these agreements should be carefully evaluated. We recommend drafting your antenuptial contract with the assistance of an independent Notary Public. For professional legal advice before you get married, please contact us.
Kindly be advised that AWD Law does not enter into litigation on behalf of clients. Our conveyancers specialise exclusively in the development of vacant land, property transfers, bond registrations, administration of deceased estates and notarial practice. Should you require assistance with a litigation, kindly contact The Legal Practice Council.
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