LPL4805 ASSIGNMENT 01 SOLUTIONS, SEMESTER 1, 2022

LPL4805 ASSIGNMENT 01 SOLUTIONS, SEMESTER 1, 2022 QUESTION 1 John and Legato intend to get merited out of community of property. However, John, will be traveling to England soon and will return to South Africa on the day of their wedding. John will not have an opportunity to appear before a notary to execute their antenuptial contract before the solemnization of their marriage. John and Legato approached Mr Mbatha, a practising attorney in Pretoria for legal assistance. How can Mr Mbatha assist the clients in fulfilling their wishes to marry out of community of property? Antenuptial contracts may only be concluded or entered into before the solemnisation of the marriage. Once the marriage has been solemnised, spouses may enter into a postnuptial contract with the permission of the court. The guidelines laid down in Ex parte Oxford (1920 CPD 367) for a court application to register a postnuptial contract are • There must be an affidavit signed by both parties. • Before the solemnisation of the marriage, both parties must have made a binding agreement, either express or tacit, to marry out of community of property. • There must be good reasons why the parties did not have the agreement executed by a notary and registered in the deeds registry. • The parties must have made the application as soon as possible after realising that they had been married in community of property. • The application must be accompanied by a copy of the contract. • The rights of creditors have to be protected when this order is made Spouses must jointly bring an application to the high court to modify their matrimonial property dispensation in terms of Section 21 of Matrimonial Property Act. QUESTION 2 Stephen and Mary Intend to get married out of community of properly. However, they do not want their commencement values to be in the ante nuptial contract to be pubic knowledge. How can they ensure that their commencement valve is not pubic knowledge? If they are able to achieve their goal, how will this be facilitated? Advise them with reference to relevant legislation. Section 6(1) and 6(2) of the Matrimonial property Act 88 of 1984 allows spouses to declare their commencement value in a statement separate from the antenuptial contract. According to Section 6(1) of the Matrimonial Property Act ,a party to an intended marriage which does not, for the purpose of proof of the value of his or her estate at the time of the commencement of the marriage, declare the value in the contract, then he or she may do so within six months of the marriage in a statement attested to by a notary. If this is not done, according to Section 6(4) of the Marital Property Act, the net value of the estate of a spouse is then deemed to be nil at the time of the marriage. In effect, such a contract is valid but it will effectively render the marriage in community of property since nothing was excluded from the accrual. The notary must file the statement with the antenuptial contract of the parties in his protocol and issue a certified copy of the statement to the parties, certifying that the original certificate and the antenuptial contract are in safekeeping in his or her protocol. If the statement is drafted by another notary than the one who executed the antenuptial contract, the notary must send the original statement by registered post to the notary in whose protocol the antenuptial contract is kept QUESTION 3 You, a practising notary who has not been yet admitted as a conveyancer but who has extensive knowledge of conveyancing, you are requested by client, Company X to prepare a power of attorney transfer of X, farm Unvluich in favour of purchaser B so that a conveyancer in Pretoria may attend to the registration of the sold transfer into the names of B. Director Y will sign the power of attorney on behalf of Company X. What does the Deeds Registries Act 47 of 1937 prescribed regarding he signing of the preparation certificate on the power of attorney? Your answer must refer to relevant legislation in your answer. The preparation certificate must be signed by a notary, attorney or conveyancer. In terms of Regulation 44(1) of the Deeds Registries Act 47 of 1937, a notary is competent to sign the preparation certificate on a power of attorney intended for registration in the deeds registry. If the power of attorney has been signed by a notary, a practicing conveyancer must co-sign the preparation certificate, which serves as confirmation that the notary is a practicing notary. The registrar has discretion to waive this requirement if the preparation certificate has been signed abroad. The person who signs the preparation certificate certifies that, to the best of his or her knowledge and after due enquiries have been made, Y has been properly authorized to sign the power of attorney on behalf of the company and further that the following information is correct: B's name , his identity number/date of birth, his or her marital status and the name and the registration number of the company.