NOTARIAL SERVICES

Certain documents can by law only be drawn and attested by a notary public - who must also be a practicing attorney. This hold certain advantages to the parties having the documents so drawn, such as the fact that when a document is executed before a notary there is a presumption that every statement in the document is true and understood by the parties thereto - and that all prper solemnities have been observed by the notary public, which presumption can only be rebutted by clear proof to the contrary. 

Our Notarial department can assist with the following:

  • Antenuptial Contracts;
  • Long-term leases, cessions and terminations of leases;
  • Notarial bonds;
  • Parental (travel) Consents;
  • Authentication of Documents for use outside Namibia;

Antenuptial contracts

One of the most important tasks to consider before getting married is the antenuptial contract. This contract is entered into between two persons who intend to get married and who want to regulate the matrimonial property system that will govern their marriage. When a couple plans their wedding, they also need to know what would happen in the case of separation, divorce, or the death of one of the spouses. Only an admitted and practicing notary may execute an antenuptial contract. The notary must not be related to any of the parties, or have a personal interest. Having an antenuptial contract brings transparency and certainty to a relationship by recording the rights, duties, and consequences of the marriage and assets which will prevent unnecessary disputes down the line and – above all – the antenuptial contract protects family assets.   

An antenuptial contract is a written contract executed and attested by a notary. In such a contract, two parties who are by law competent to enter into a marriage or a civil union, and

  • who have the intention of entering into a marriage with each other or are entering into such a union with each other;
  • to regulate the matrimonial property dispensation of the proposed marriage or union;
  • with the main aim of excluding the community of property and the community of profit and loss in the proposed marriage or union.

An antenuptial contract would thus determine whether the marriage will be:

  • in community of property (all assets and liabilities are equally shared and jointly owned); or
  • out of community of property (all assets and liabilities are separate, unless otherwise provided for in the antenuptial contract); or
  • out of community of property – with accrual (each spouse declares his/her estate’s commencement value at prior to the marriage and retains their assets and liabilities – unless expressly excluded – until death or divorce, whereby the accrual of each will be calculated and divided); or
  • subject to donations between spouses and exclusion of inheritances.

Accrual system:

Namibian law does not have an equivalent law allowing for a redistribution order similar in nature to the accrual system provided for by section 3 of the Matrimonial Property Act. However, the parties can include any provision in the contract – as long as it is not contra bones mores or in conflict with the essential consequences of a marriage. Causes of this nature will be null and void.

Can a marital property regime be changed after marriage?

It is almost impossible to make a change after the marriage, unless there has been some mistake.  So it is important for a couple to consider their decision on property sharing carefully before they get married. However, in terms of section 88 of the Deeds Registries Act, a post-nuptial ANC may be entered into and registered (after solemnisation of the marriage). In this instance the parties agreed in writing or orally, expressly or tacitly, to marry under antenuptial conditions, but did not execute a notarial antenuptial contract before the marriage and have it registered. They can approach the High Court for permission to register the contract post-nuptial upon specific conditions.

To be enforceable it must be executed before a Notary prior to the marriage and registered in the Deeds Office within 3 months from the date of signing. Not doing so will result in the default situation of In Community of Property. Whether you plan on getting married within or outside of Namibia this applies regardless. If a notarial antenuptial contract is executed outside Namibia, it must still be attested by a notary and registered in a Namibian Deeds Office within six months after the date of its execution or within such extended period as the court may on application allow.  Not doing so will result in the default situation of being married in community of property. Whether intended spouses plan on getting married within or outside of Namibia, this applies regardless.

Marriage between a Namibian citizen and a non-Namibian citizen:

If a non-Namibian enters into a good faith marriage with a Namibian, the couple has a right to live in Namibia together. The non-Namibian spouse has the right to live and work in Namibia and is eligible for Namibian citizenship by marriage if he/she has been living in Namibia with the Namibian spouse for at least 10 years. The marriage must be in good faith, and not a false marriage entered into only for citizenship purposes. The non-Namibian spouse has a right to continue living in Namibia if the Namibian spouse dies. The non-Namibian spouse has a right to continue living in Namibia if the marriage ends in divorce after having lasted for at least two years. This rule ensures that a spouse does not have to stay in an unhappy or violent marriage for fear of having to leave his/her home in Namibia.

What law applies to marital property when a Namibian citizen marries a non-Namibian citizen?

Namibian law says that the property consequences of a marriage follow the law of the country where the husband made his/her home at the time the marriage took place.  Couples who will be affected by this rule should find out about the property consequences that will apply to them before they get married. They can make an antenuptial agreement which chooses a law other than that of the husband’s home country to govern the property of the marriage, but this must be done before the marriage takes place.

For further assistance please contact us at 061- 2 555 01 or email us at info@namlaw.com