How to find a divorce lawyer in Cape Town, South Africa

ANTENUPTIAL CONTRACTS & the need for a Notary

In matrimonial law, whenever an antenuptial contract is drafted by an attorney, a qualified notary has to stamp the antenuptial contract and use a seal on it. Without this notarial seal, the antenuptial contract is not valid. A notary is an attorney who has studied for a further notarial qualification after passing the normal legal board exams.

Clients often ask me why a notary has to be used for this function as opposed to a normal attorney, and why a seal has to be used. What a seal basically is, is proof of an allegation made by the notary when signing a document. Documents such as antenuptial contracts have to be approved of by the deeds office in order to be valid. The seal makes it easier for the deeds office to decide on the validity of the antenuptial contract, and the allegation of the notary.

Fraud of legal documentation sometimes happens, including with antenuptial contracts. There have been situations of people being accused of document reproduction and falsifying stamps. Notaries were used approximately a thousand years ago already to seal legal documentation with a seal of the office of the notary.

Notaries have always been seen to be honest officials of the court and people of the utmost integrity. Many years ago in certain societies many people could not even read, and fraud happened frequently. Notaries were referred to then as scribes, and were of the few members of society who could actually read.

As early as 1237 notaries were being used in England. In the Netherlands notarial sealing stamps dating back to 1118 have even been found, indicating that notaries were being used that early. In Cicero’s time notaries were highly respected, and were even referred to as ‘honestus’.

In Holland in 1524, recognition was given to the notary profession for the first time. The following is a direct quote from the Refolutie van de staaten van Holland, boudende declaratoir, dat het recht van het klein zeegel moet voldaan worden van ongezeegelde of qualyk gezeegelde actens, which was later added to the GPB, vol VII, 1490:

“[E]n onder de Notulen…van oud Burgemeefter…als Commiffaris over de Notariffen aldaar…Is dat de Minuten der Notariffen, dewelke geheel ongezeegelt of qualyk gezeegelt worden bevonden, met een behoorlyk Zeegel worden voorzien…”

As appears from the above, the notarial role is a highly respected function, and has been for many centuries. Many attorneys are responsible for the drafting of antenuptial contracts, but aren’t qualified notaries, and need to find a qualified notary to use a seal on the document. Often clients sign power of attorneys authorizing the attorney to appear before a notary on his or her behalf, due to the difficult of finding a notary and making an appointment with them.

Often clients only instruct an attorney to draft an antenuptial contract a few days before getting married. The client is sometimes busy with wedding plans then, and does not have the time to go see a notary himself, and signs a power of attorney authorizing the attorney to appear before the notary himself.



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