Presentation on July 6, 2017
at the International Symposium on Divorce by mutual consent
I. The Notary since the 2011 reform
The Mauritian notary, civil law notary (UINL)
According to Jean Carbonnier “The notary is the personal assets doctor.”
New Article 240 CCM: “Notwithstanding the emergency measures taken by the district magistrate, the Chamber Judge may take any provisional measures he considers necessary to ensure the well-being of the spouses and that of the children until the date on which the judgment becomes res judicata. The judge may in particular –
[…] 5º grant one of the spouses provisions to assert on his rights in the liquidation of the matrimonial property regime if the situation makes it necessary;
6 ° rule on the allocation of the enjoyment or management of common or undivided property other than those referred to in paragraph 2 above, subject to the rights of each of the spouses in the liquidation of the matrimonial property regime;
(7) designate any qualified professional with a view to drawing up an estimated inventory or making proposals as to the settlement of the pecuniary interests of the spouses;
8 ° appoint a notary to draw up a plan to liquidate the matrimonial property regime and form the lots to be shared. “
II. The fields of intervention of the notary
In matters of divorce:
Upstream: premarital counseling, marriage contract, or purchase deeds
During the procedure: liquidation project, transaction protocol
Subsequent to the final decree: liquidation of assets from the purchasing community
Uniqueness of heritage
The 3 heritages of the spouses married under the regime of the community reduced to acquests (Arts.1401 to 1474 CCM)
Wife’s own heritage
Own heritage of the husband
Please note: heritage is both assets and liabilities!
III. The 3 heritages according to the CCM
Art. 1402: Any property, movable or immovable, is deemed to be a community acquisition if it cannot be proved that it is proper to one of the spouses by application of a provision of the law
Art. 1406: Form own, except reward if necessary, goods acquired as an accessory to own property as well as new securities and other increases related to own securities. Also form own, by the effect of real subrogation, claims and indemnities which replace own, as well as goods acquired in employment or re-employment
Art. 1434: The employment or the re-employment is supposed to be done with regard to a spouse, whenever, during an acquisition, he declared that it was made of own money or derived from the alienation of own, and to take the place of employment or re-employment. Failing this declaration in the deed, employment or re-employment takes place only by agreement of the spouses, and it produces its effects only in their reciprocal relationships
Art. 1450: The community dissolved, each of the spouses takes back those of the goods which had not entered into community, if they exist in kind, or the goods which were subrogated there. It is then necessary to liquidate the common, active and passive mass.
IV. Principles of liquidation
Account for repossession of own property
Rewards account (by community to own, and vice versa)
Determination of the mass to be shared
Allocations in kind, or undercutting
(example of the allocation of a single asset to Madam, Sir taking the majority of the assets and all of the community liabilities)
Certain date and enforceability of the authentic instrument
V. Example (simplified) of liquidation statement
VI. Tax difficulties (… in Mauritius!)
Registration Duty Act: fixed duty registration
“2. Unconditional (pure and simple) acceptance or renunciation of community of property (communautaire), legacy or succession, when not made judicially. ”
Attempt by the Administration to tax the act on proportional law on the basis of … abuse of tax law (!). The Notary should have chosen the most costly route, that of partition, and not that of community liquidation.
Protest vehemently against Madame the Conservative of Mortgages:
I would be keen to find out which court of law would agree to the absurd proposition whereby Mr X and Mrs Y decided to initiate divorce proceedings – which are extremely costly in terms of time, energy and lawyers’ fees – and liquidate their community property for the “sole or dominant purpose” of reducing or avoiding payment of duty or tax!
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