Information and interesting matters

Michaeli Attorneys is dedicating this page to conveying information and interesting matters pertaining to conveyancing, notarial work and other legal affairs. Please make use of this information but be mindful that the content does not constitute legal advice and is solely to be used to keep the public informed. Scroll down for more information and please contact us should you require any further assistance with these matters.

CONVEYANCING PROCESS AND COSTS

The transfer process from the date of instruction to the conveyancer (usually upon receipt of the offer to purchase) can take approximately 6 weeks or more, depending on various factors, such as complexity of the transfer, nature of the transfer, compliance by the Parties, Third Parties such as SARS, Municipalities, Body Corporates etc, payment arrangements and others. It is the Seller's prerogative to nominate and appoint the transferring conveyancer, unless agreed otherwise. Michaeli Attorneys undertakes to provide our Clients with the fastest registration of transfer in the most efficient, professional and least onerous manner.

Please contact us should you require any assistance or want to appoint as your nominated conveyancer for transfer/s.

The Transfer costs for the Seller include but is not limited to bond cancellation attorney's fees if any, estate agent's fees if any, Rates Clearance figures for up to 4 months in advance, Levy Clearance Figures, Electricity, Gas, Electrical Fence and other Certificates if necessary and other costs as may be agreed in the written offer to purchase. The majority of costs shall be borne by the Purchaser including but not limited to the Transfer Conveyancer's fees, Transfer Duty, FICA fees, Deeds Office registration fees, Deeds Office Property and Person Search Fees, Postage and Petties, Rates and Levy Clearance Certificates and other ancillary costs (costs to register the Purchaser's bond, if any, Deposit, if any). For more detail on the costs and hidden costs of transfer, please do not hesitate to contact Michaeli Attorneys and nominate and appoint us as your preferred conveyancers.

For a Transfer, Bond or Bond Finance quotation, please click HERE or the cost calculator tab above.

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NOTARIAL AUTHENTICATION OF DOCUMENTATION FOR USE OVERSEAS

Authentication of documentation is a process whereby duly qualified and practising notary publics (or a Magistrate, Registrar of Court, justice of peace and commissioner of oaths) verify the signature on the document. According to Rule 63(1) of the Uniform Rules of Court for the Supreme Court Act 59 of 1959 (as duly amended) authentication is defined as “when applied to a document, the verification of any signature thereon”. A “document” is further defined as “any deed, contract, power of attorney, affidavit or other writing, but does not include an affidavit or solemn or attested declaration purporting to have been made before an officer prescribed by section eight of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963)”. Accordingly, when a notary public or any other duly authorised person aforementioned authenticates a document, he/she is verifying the signature and identity of the person signing the said document.

However, as to the process of authentication for documentation for use overseas, there are two mechanisms available to the notary public and his/her client/s:

The Apostille – The Shortened Mechanism (1-2 working days from date of authentication) – The Convention for the Abolition of the Requirement of Legislation for Foreign Public Documents was duly passed and enacted on the 5th of October 1961at the Hague by numerous founding countries (hereinafter referred to as the ‘the Hague Convention’). The purpose of the Hague Convention was to shorten the authentication process of documents for use overseas and South Africa formally joined as a member to the Hague Convention on the 30th of April 1995. The Hague Convention only applies to public documents and to countries that are parties to the Hague Convention (see list below) (ie. The Sending and Receiving Countries of the public documents must both be members of the Hague Convention). A public document is defined under Article 1 of the Hague Convention as:

“a) documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice");

b) administrative documents;

c) notarial acts or deeds;

d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

However, the present Convention shall not apply:

a) to documents executed by diplomatic or consular agents;

b) to administrative documents dealing directly with commercial or customs operations.”

Paragraph d) is where Michaeli Attorneys will assist as we shall authenticate the signature and identity of the persons signing the documents (affidavits, powers of attorney, deeds, contracts etc) and thereafter attend at the Gauteng Local Division Registrar for the issue of a Certificate (known as an “Apostille”). Once certified with an Apostille, the document will be duly authenticated for use overseas.

2. The Long Mechanism – This is the authentication process performed by the Notary Public in the event that the intended country wherein the document is to be used, is not a member of the Hague Convention. There are four essential steps in this long process and they are as follows:

a) The person must after prove his/her identity and sign or acknowledge his/her signature in the presence of the notary public, which notary public shall thereafter authenticate the document;

b) The notary public’s certificate of authentication and his/her signature must thereafter be duly authenticated by a relevant Magistrate or Registrar of the High Court;

c) The signature of the relevant Magistrate or the Registrar of the High Court must thereafter be authenticated by the Director-General of the Department of Justice and Constitutional Development, which in turn must be duly authenticated by the Director-General of the Department of International Relations and Cooperation;

d) Finally, and although not strictly required (Michaeli Attorneys highly recommends same), the duly authenticated document/s should be processed and approved by the local embassy, consulate or duly authorised office of the country wherein the document is to be used.

As can be evidenced from the above two processes, authentication of documents for use overseas can be somewhat complex and potentially frustrating to the party desiring to use said documentation overseas if not executed properly. Should the correct process not be followed or performed by the duly designated persons in the correct manner, the documents shall not be valid and be unable to be utilised in the designated country.

Accordingly, please do not hesitate to contact Michaeli Attorneys should you require assistance in respect of notarially authenticating documentation for use overseas and our experience and expertise shall ensure that your instructions are respectfully and professionally executed, so that your documents may be used overseas.

List of Hague Convention Countries for Apostille Purposes:

Albania; Andorra; Antigua and Barbuda; Argentina; Armenia; Australia; Austria; Azerbaijan; Bahamas; Bahrain; Barbados; Belarus; Belgium; Belize; Bolivia; Bosnia and Herzegovina; Botswana; Brazil; Brunei Darussalam; Bulgaria; Burundi; Cape Verde; Chile; People's Republic of China (Hong Kong & Macao Only); Colombia; Cook Islands; Costa Rica; Croatia; Cyprus; Czech Republic; Denmark; Dominica; Dominican Republic; Ecuador; El Salvador; Estonia; Fiji; Finland; France; Georgia; Germany; Greece; Grenada; Guatemala; Guyana; Honduras; Hungary; Iceland; India; Ireland; Israel; Italy; Japan; Kazakhstan; Republic of Korea; Kosovo; Kyrgyzstan; Latvia; Lesotho; Liberia; Liechtenstein; Lithuania; Luxembourg; Malawi; Malta; Marshall Islands; Mauritius; Mexico; Republic of Moldova; Monaco; Mongolia; Montenegro; Morocco; Namibia; Netherlands; New Zealand; Nicaragua; Niue; Republic of North Macedonia; Norway; Oman; Panama; Paraguay; Peru; Philippines; Poland; Portugal; Romania; Russian Federation; Saint Kitts and Nevis; Saint Lucia; Saint Vincent and the Grenadines; Samoa; San Marino; Sao Tome and Principe; Serbia; Seychelles; Slovakia; Slovenia; South Africa; Spain; Suriname; Swaziland; Sweden; Switzerland; Tajikistan; Tonga; Trinidad and Tobago; Tunisia; Turkey; Ukraine; United Kingdom of Great Britain and Northern Ireland; Uruguay; Uzbekistan; Vanuatu; Venezuela

THE TYPES OF MATRIMONIAL PROPERTY REGIMES IN SOUTH AFRICA, THE ANTENUPTIAL CONTRACT AND THE IMPORTANCE THEREOF

Marriage, is one of the most salient decisions a person can make in his or her life. Likewise, the type of matrimonial property regime one elects is equally as important as it will determine the framework of the newly wedded couple’s working proprietary relationship for the duration of said marriage. Marriage, whether in terms of the Marriage Act 25 of 1961, the Civil Union Act 17 of 2006 or the Recognition of Customary Marriages Act 120 of 1998 is an act of betrothal between two consenting adults, the course and content of which shall not be discussed in this article, yet rather this article shall very briefly inform and explore the types of matrimonial property regimes available to those intrepid and loving couples and as governed by the Matrimonial Property Act 88 of 1984. Many important considerations are not discussed in depth for the sake of brevity, however this article seeks to educate one sufficiently to make an informed decision thereto.

FOR ANY FURTHER QUESTIONS IN THIS REGARD OR DESIRE TO REGISTER AN ANTENUPTIAL CONTRACT, PLEASE SET UP AN APPOINTMENT WITH MICHAELI ATTORNEYS PRIOR TO YOUR MARRIAGE/WEDDING. QUOTATIONS PROVIDED ON REQUEST.

In South African law, there exist three types of matrimonial property regimes, namely:

in community of property and of profit and loss;
out of community of property and of profit and loss without the accrual; and
out of community of property and of profit and loss with the accrual.

All of the above three matrimonial property regimes govern only the proprietary aspects and consequences of the marriage, be it patrimonial, non-patrimonial, corporeal and/or incorporeal property. Of utmost importance is to be aware, that the proprietary consequences of a marriage follow the Husband’s domicile.

The default matrimonial property regime, if no antenuptial contract is duly concluded and registered at the relevant Deeds Office, is a marriage in community of property and of profit and loss. This type of matrimonial property regime dictates that all property of the spouses will be combined into one joint estate, meaning that all assets and liabilities, profits and loss, credits and debits, shall be jointly and severally shared by the spouses equally during and upon dissolution of the marriage, be it by divorce or death. There are few exceptions to property not forming part of the joint estate such as inheritances from a deceased person with the express provision of excluding the regime of in community of property, an example being if A bequeaths his or her favourite motor vehicle to B and excludes the motor vehicle from being part of the joint estate, the motor vehicle will belong exclusively to B and not his or her spouse. Many people believe this type of matrimonial property regime to be the most just and equitable type of matrimonial property regime, since both parties are jointly and severally liable and benefit from the marriage equally, however there exist many problems that may arise, as has been documented over the many decades of this type of matrimonial property regime existing. As a result of being jointly and severally liable, should any one of the spouses or partners become insolvent or indebted to any creditors, the creditors of such debt can by lawful court proceedings obtain a court order against both spouses or partners respectively, declaring both spouses or partners insolvent as well as attaching and selling any and all assets, in order to satisfy said debt, if necessary. Moreover, there are certain legal actions requiring both spouses’ written consents such as dealing with immovable property (including but not limited to selling or purchasing or mortgaging immovable property), children’s affairs (including but not limited to applying for birth certificates, consenting to marriage if the child is the age of minority), financial affairs, applications for credit and other necessary matters and actions. Ultimately, the advantages and disadvantages of a marriage in community of property will have to be duly considered by both spouses, as provided for by a notary public or attorney specialising in family and tax law, so that an informed decision can be made thereto.

Out of community of property and of profit of loss matrimonial property regimes are governed by an antenuptial contract (commonly known as a pre-nuptial contract) and is exactly as the name implies, a marital contract signed before a couple is betrothed in terms of either the Marriages Act, Civil Union Act or Recognition of Customary Marriages Act. There is also a myth that discussing an antenuptial contract is in violation of the oath and betrothal of the forthcoming marriage and the unity that it signifies, however as with any contract between persons, marriage being an intended lifelong contract between spouses, considering concluding an antenuptial contract is pivotal and attaches many benefits to the spouses not afforded to those in community of property marriages. The benefits and negative consequences shall be discussed further on in this brief article. There are two available options in respect of antenuptial contracts, out of community of property without the accrual and out of community of property with the accrual. In respect of the former, each spouse’s estate will remain separate and independent, essentially continuing your proprietary regime that existed before you were married. In respect of the latter, each spouse will also retain their own separate estate, however the accrual system shall apply during the tenancy of the marriage. The accrual is the growth of a spouse’s estate during the tenancy of the marriage. The accrual system dictates as the default position that any assets and/or income of each spouse’s estate (those not excluded) will form part of the accrual. The accrual is neither attachable nor transferrable during the tenancy of the marriage and only comes into effect upon dissolution of the marriage by either death or divorce of a spouse or spouses together in the event of death. Upon dissolution of the marriage by either death or divorce, the difference between the larger accrual and the smaller accrual, shall then be divided by 2 (two), which amount shall be payable to the surviving spouse or his/her estate. An example is as follows: Spouse A and Spouse B both commence with a starting value of R0.00 (Zero Rand) (this is known as the commencement value and is the amount at which both spouses must declare to the Notary Public). The spouses’ marriage lasts for 15 years and is dissolved by divorce. During the marriage, Spouse A accumulates an accrual (made up of assets and income such as immovable properties, vehicles, shares in companies, jewellery etc) of R2 000 000.00. Spouse B on the other hand accumulates an accrual (made up as well of assets and income such as immovable properties, vehicles, shares in companies, jewellery etc) of R1 000 000.00. The difference between R2 000 000.00 and R1 000 000.00, equates to R1 000 000.00. The R1 000 000.00 is then divided by 2 (two) or halved, so that the smaller accrual of Spouse B’s estate shall be entitled to R500 000.00 and is payable in money only. As with any contract, an antenuptial contract’s provisions can be amended to fit the purposes and intentions of each spouse, provided that it does not include but not limited to provisions that are unlawful, illegal, unpractical, contra bonos mores (against public policy) or defeats the purpose of the antenuptial contract and accrual system. The benefits of the of a marriage out of community of property are but not limited to:

Benefits:

Separate Estates – Each spouse shall be in control of his/her own estate during the subsistence of the marriage;
Signing Power – as a result of the separate estate, each spouse can conclude and engage in any lawful affairs in his/her own right, such as but not limited to signing contracts, agreements, opening accounts and others;
Creditor Protection - Creditors may only proceed against the spouse’s estate that became insolvent or defaulted or breached any agreement and/or contract and/or obligation, thus safeguarding the solvent spouse’s estate from the risk of debts and court ordered attachments incurred by said insolvent and/or defaulting spouse;
The Accrual – The spouse with the smaller estate shall be entitled to the proceeds of the accrual of the larger estate, as explained in the example above.

Negatives:

There are very few negatives, however a common negative consequence experienced by spouses, is the inability to share in the accrual during the tenancy of the marriage if need be, particularly when one spouse does not possess his or her own funds or sources of income, however in this case the problem of sharing mostly arises from the personal relationship between the spouses.

As can be viewed from the above content, which again, leaves many seminal considerations unaddressed hereto or requires further elaboration, is but the foundation of the three matrimonial property regimes available in South Africa. The decision of which matrimonial property regime to elect, is one to be determined by both spouses who are informed, trusting and based on their own vision for their futures together, prior to solemnizing their vows of marriage. Michaeli Attorneys will expertly serve, advise and assist you prior to the commencement of your married life together, particularly with drafting the Antenuptial Contract that is intended by you and caters for your needs and desires. We also look forward to continuing providing you with our legal prowess and services during your journey of married life together, with services such as transfers of property (all conveyancing matters), wills, business and miscellaneous contracts, trusts, notarial deeds, notarial authentication of documents for use overseas and notarially certifying copies of salient documents.

We trust that the above better informs you in your decision on the type of matrimonial property regime to elect and we look forward to assisting you thereto.

The above does not constitute legal advice and Michaeli Attorneys shall not be held liable for any of the above information relied upon by any person or consequences whatsoever direct or indirect thereto. Drafted by Delon Michaeli of Michaeli Attorneys.