The abovementioned cases consisted of two applications for the registration of nuptial contracts subsequent to marriage in the Deeds Office.
In Ex parte Moodley (the “First Case”) the Applicants had signed a nuptial contract prior to their marriage and same was not registered within the period prescribed by the Deeds Registries Act 47 of 1937 (the “Act”). The Applicants applied to the Court to have their original antenuptial contract registered by the Registrar of Deeds.
In Ex parte Iroabuchi (the “Second Case”) the Parties prepared a nuptial contract after their marriage was concluded. They ensured that the nuptial contract complied with the recommendations of the Registrar of Deeds and sought an order from the Court that same be registered in terms of the Act.
In both the First and Second case, (the “Cases”) the notary public was absent for the creation and conclusion of the documents regulating the marital regime of the Parties (the “Documents”). The Documents in both of the Cases did not provide that any of the contracting Parties should actually appear before the notary public who would attest to the Documents. It was envisaged that the Parties would sign a power of attorney authorising someone else, as their agent, to appear before the notary public and sign the Documents.
The Court stated that in circumstances where parties appoint an attorney to appear on their behalf before a notary, the notary public who executes the contract may not know whether the parties to the contract fully understand the nature and consequences of same and, therefore, unless there is proof of urgency to justify their absence, the parties to a nuptial contract should appear personally before the notary for the signing of same.
The Court further held that the notary public in both Cases could not be satisfied that each of the contracting Parties has been fully apprised of the matrimonial regime into which they were entering, as the notary public had not met the Parties and had not explained the various options open to them in respect of their marital regimes. The Court stated that the relevant notaries had put themselves at risk in that one or both of the contracting Parties could say they never signed the Document, never knew what they were signing, did not intend that which is contained in the Document or that the Document was never explained to them and that they do not wish to be bound thereby.
The Court deprecated such situations where the Parties to a notarial contract appoint an agent to sign same on their behalf and placed great emphasis on the importance of the obligations of the Notary when notarising contracts which the Court stated not only creates a presumption of accuracy of such contracts, but also allows for public reliance on same.
Both Cases were postponed sine die and the Court allowed both Parties leave to appear before a notary personally, sign the Documents, and return to Court on the same papers.
In terms of this Case, a nuptial contract should be signed by the parties to such contract in the presence of a Notary and not by an agent in their stead, unless urgency can be proved to the Court.