Overview of the Saudi Notarization Law
On July 7, 2020 A.D., corresponding to Dhu Al-Qa’dah 16, 1441 AH, the Saudi Council of Ministers issued a resolution passing the Saudi Notarization law.
The law is designed to streamline the notarization process of different types of contracts and declarations between individuals, raise its efficiency, quality reliability and minimize the flow and filing of disputes and lawsuits to courts of law.
The law shall lay down the requirements that should be met by those specialized in notarizing and authenticating transactions, whether they are public notaries, certified private notaries, or marriage registrars. The law also shall lay down the terms pertaining to their jurisdictions and rules governing their work and its procedures while monitoring, controlling and watching notaries.
The law shall impose penalties on the violators of who shall use the electronic methods in certifying contracts and declarations between individuals.
The law has shifted some notarization authorities and powers of courts they used to enjoy before the law is promulgated to those specialized in notarizing and certifying transactions (private notaries) in order to lessen the burdens on courts’ shoulder and occupy the courts only with the judicial work and help settle the cases, lawsuits and disputes being submitted to the courts without delay.
The most prominent features that appeared in the Notarization law
Powers and Jurisdictions of the Notary Public and provisions related thereto pursuant to the law:
- A Notary Public is a government employee affiliated to the Ministry of Justice, whose task is to certify and authenticate all contracts and declarations, except the contracts and declarations whose either party is a minor, absent, or a guardian of an endowment or a will. A Notary Public follows the provisions of Islamic Sharia upon authenticating and certifying transactions.
Public notaries should report to the Chief Notary Public. The formation and dissolution of notarization departments and specifying the qualitative and territorial jurisdictions are implemented upon a decision by the Minister.
- A Notary Public is tasked with certifying numerous contracts and declarations such as marriage contracts, when one of its parties is a Saudi national and the other is non-Saudi and notarizing each of the following: Divorce, Khula (divorce initiated by the wife in return for the remuneration of the husband), returning to marital wedlock after separation of marriage, reconciliation, custody of children, alimony, parental visit to children, endowment, bequeath and the shares related thereto, dividing the common money and properties subject that there is no dispute thereon.
- A Notary Public is tasked with notarizing and certifying declarations of stakeholders with respect to damaged banknotes in order to claim compensation for such damage; declarations of the illiterates; notarizing of testimony of witnesses and statements of those concerned in social cases; notarizing title deeds of real estate properties and deeds of ownership of real properties, which comply with the legal and Islamic Sharia procedures or transferring them and notarizing the merger of ownership deeds and title deeds of real properties issued by the Notary Public departments.
- A Notary Public should refrain from notarizing contracts and declarations where one of its parties is a minor, or absent, or a guardian of an endowment or a bequeath. However in a few specific cases, a notary public may notarize such types of transactions, which are: accepting gifts, a father disposing off the money of his minor child, or expropriation of a real property for the public interest subject that a real property is granted in lieu; lease contract of a duration that does not require a permission from the court; and lastly notarizing a seller’s declaration of the sale to the bequeather of the minor and that he had collected the price from the bequeather of the minor right before his death.
- Pursuant to Article No. 7 of the law, the post of a Notary Public is divided into four categories and grades: A, B, C, and D.
The Article stipulates certain conditions and norms whereby a Notary Public has to comply with to move from one category/grade to another, beginning from the lower category/grade D shifting up to category/grade A. Out of such conditions is to hold a university degree with specialty in branch of Islamic Sharia or to hold a postgraduate degree like Masters or PhD, subject that a certain number of years of experience.
As for the Chief Notary Public, Article No. 8 of the law stipulated a number of years shall pass in order for the Notary Public to be promoted to the position of Head of the Notarization Department, in terms of the number of years of experience required to assume the post of Chief Notary Public.
This is to note that the position of the Chief Notary Public is divided into four categories/grades as that of the Notary Public, which are as A, B, C, and D. Each category/grade has its own legal conditions and requirements that should be fulfilled by the Chief Notary Public in terms of the academic degree and years of expertise.
- A Notary Public must be a Saudi national; should not have been convicted of an offence prejudicial to religion or honour; or has not been fired from a public post by virtue of an order even if he/she was rehabilitated later on.
A Notary Public must be medically fit, and must hold an academic (university) degree in the area of Islamic Sharia law, earning at least score/grade ‘Good’ from any university in the Kingdom or from an equivalent university. A Notary Public must undergo and pass a written test, which is set and prepared by the competent body.
Powers and Jurisdictions of Private Notary and the provisions governing a Notary office in line with provisions of the law:
- A Private Notary is an individual or a professional company that assumes the notarization of contracts in a manner, which shall not infringe the notarization functions entrusted to the Notary Public, by virtue of a license issued by the ministry, in accordance with provisions of the law.
This is to note that some notarization powers conferred upon the Notary Public may be assigned to a private notary; be an individual or a company, upon a resolution to be passed by the cabinet following a proposal to be submitted by the minister.
- A Private Notary is tasked with certifying and authenticating several types of contracts such as: Powers of Attorney and its cancellation; mortgage and dismortgage or amending it; Articles of Incorporation, amendment annexes and decisions made by those in charge therein; notarizing minutes of corporate general assembly; notarizing trademark agreements, patents, intellectual property rights and movable property agreements; certifying bail declarations and guarantees; declarations of amounts of money and movables and collecting or assigning them.
A Private Notary holds powers to notarize the title deeds of real properties, in accordance with the stipulated and prescribed rules of the implementing regulations of the law.
- A Private Notary shall start engaging in the profession within 120 days from the date of issue of the license. If a Private Notary did not undertake the profession or stopped practicing it for a period of more than 60 days, then he/she must inform the competent department by filling a form prepared for such a purpose and should put a tick in the table that he had ceased practicing the profession. If he or she decides to get back to his/her job, the Private Notary should notify the competent department once again and puts a tick in the table tha the or she has resumed work.
- A Private Notary should have an office where he or she could undertake the profession, in line with the implementing regulations of the law. If the notary is a professional company, it must practice such a profession pursuant to the Professional Companies Law.
- A Private Notary shall comply with all the requirements and conditions prescribed to the Notary Public plus two more conditions: to pass a specialized training course in the field of notarization, in accordance with the implementing regulations, unless he or she previously engaged in for at least one year as a judge, a notary public, a lawyer, or a legal consultant, who studied Islamic Sharia science or civil law at a Saudi university.
- A Private Notary must not be employed in the public or private sectors, and shall not practice a job other than the legal profession.
Powers and Jurisdictions of Marriage Registrar:
- A Marriage Registrar is he who certifies marriage contracts, in which its parties are Saudi nationals, or non-Saudis, by virtue of a license issued by the ministry.
- A Marriage Registrar is obliged to verify, substantiate and ensure that the pillars and conditions of the marriage are met, and must check out that the couple do not have any restrictions that could prevent their marriage. A Marriage Registrar shall obligate the appearance of the guardian if either of the marriage parties is a minor.
- A Marriage Registrar shall fulfill all the requirements and conditions as that of the Notary Public; no more or less than them.
NOTE: (to avoid doubts): A Notary Public is tasked with notarizing the marriage contract where one of its party is non-Saudi, while the Marriage Registrar is tasked with notarizing marriage contracts where both parties are Saudis, or Non-Saudis.
Provisions relating to the Notarization license, its announcement and the Notarization service fees:
- A committee shall be formed to review the applications submitted for obtaining a notarization license. This committee is chaired by an Undersecretary of the Ministry of Justice, and whose members are a Consultant of Islamic law and the other is a Legal Consultant. The committee may decide the application within 30 days from the date of submission. In case of rejecting the application, the committee is obligated to state the reason why the application has been rejected, and the applicant is entitled to challenge the committee’s decision before a competent court, whether the application was turned down by the committee or has not been decided during the said period.
- In case of approving of the application, the minister shall issue a decision to grant a license to the applicant based on a recommendation to be made by the competent department. The license’s validity term is 5 years and it is renewable.
- The implementing regulations shall lay down the rules for the issue, renewal or reissue of the license.
- The license shall be registered in the table, which is set to keep therein the registration of the licenses with the competent department. The regulations shall denote how a license is registered and the information that should be provided upon registration.
- The competent department, upon a decision by the minister, lays down the rules governing the announcement for the notarization profession by the license holder.
- The fee that is to be paid for issuing a notarization license is SAR 1,000, and SAR 1,000 to be paid upon renewal.
- The law permits the minister to assign/outsource some of the notarization works to the private sector. The law also permits collection of fees for any notarization jobs performed by the Notary Public.
- The law invests the Council of Ministers with powers, based on a proposal by the ministry, to specify the value of the notarization fees, to defer its collection, or suspend it, or not to collect any fees for some notarization works.
- The financial consideration for any notarization job carried out by the license holder shall not be less than SAR100 and shall not exceed SAR5,000, in pursuance of the implementing regulations of the law. The law has conferred powers upon the Cabinet to increase the maximum limit of such financial consideration.
Duties and Bans respecting the Notarization works, and Provisions related thereto:
- The notarization works performed by the Notary Public shall be carried out at the premises of the Notarization Department. A Notary Public is disallowed to move outside the premises of the notarization department, but in accordance with certain and specific regulations to be laid down by the competent department, unlike the Private Notary, who is permitted by the law to move out freely if so requested by the stakeholders.
With regard to the notarization forms and notarized documents, it is strictly prohibited to get them out of the premises of the notarization departments or the private notarization offices.
- A Notary Public is obliged to take the requisite action upon receiving applications to be notarized. And, whoever had a notarization application rejected may move the competent department to file a complaint.
- A Notary Public or a license holder does have powers to resort to a certified Translator for whoever does not master the Arabic language, subject that the Translator shall not have an interest in the transactions being notarized, and the translator has to attest by signing what he/she has translated.
- A person is banned from engaging in notarization activity unless the person obtains the necessary license is required for that. Besides, contracts and declarations shall not be certified and notarized unless the identity, capacity, competency of the parties thereto are verified and unless the documents submitted are examined to check whether these documents are valid to be certified or not in line with the procedures prescribed in the implementing regulations of the law.
- A Notary Public or the licensee is banned from notarizing all transactions, which have to do with his/her personal interest or the interest of the spouse, the ancestors, descendants or those under his/her guardianship even if he or she is acting on behalf of him/her.
- A Notary Public or a Private Notary is prohibited to divulge the secrets of transactions or disclose any piece of information that he or she has reviewed or obtained because of their work.
The procedures whereby a transaction can be notarized:
- The law permits filling the notarization information electronically and such transactions shall have the power as that of the written document pursuant to the provisions of the e-Transactions law.
- Notarizing and certifying a transaction should be made in the Arabic language. The Notary Public or the Private Notary have jurisdictions and powers to notarize the documents issued outside the Kingdom, provided that they do not violate the Islamic Sharia or the legal requirements. Those documents should be attested by the ministry as well and the contents of the original document should be translated into the Arabic language by a licensed translator before being notarized.
- The law allows to notarize a power of attorney instrument and the term of such an instrument shall be valid for 5 years, following which the PoA expires.
Indexed files of notarized documents and application forms designed for notarization and provisions related thereto:
- Notarization is made in an application form prepared for such a purpose. If the transaction to be notarized has to do with a government body, then the government body should arrange the notarization form in coordination with the ministry. The application forms set for notarizing contracts shall maintain the rights of the contracting parties in terms of adding clauses and terms between the parties, without breaching the Sharia and legal requirements, acting in accordance with the principle, which state: (Pacta sunt servanda), Latin for “agreements must be kept”.
- The indexed files, wherein notarized documents are saved, and the notarized contracts shall be kept in the premises of the notarization department or the private notarization office. It is prohibited to bring them out of the premises of the public notarization departments or private notarization offices in any case for any reason whatsoever. Such indexed files of notarized documents and contracts shall be handed over to, or to make a copy of which should be handed over to the competent departments, as per the rules and procedures specified by the implementing regulations.
- It is not permitted to countersign/endorse the suspension of the indexed file containing the notarized documents, confiscate or lift it unless the competent court or the legally competent authority orders so.
Using Notarized Transactions as an Evidentiary Document:
- A notarized transaction is a binding enforceable instrument, which serves as a proof before courts of law. It does not require extra evidence to corroborate it and it cannot be contested or objected to as well. If the notarized transaction is found to be in violation of the Islamic Sharia and the civil law, or if it is found to be forged, then the court may issue an order to invalidate and cancel the transaction, that is after going through a full legal court proceeding.
- This is to note that any stakeholder (even it is potential), be a natural or a legal person, is entitled to sue whoever is having a transaction or a notarized document in hand, before the competent court, in pursuance of the law of Civil Procedure or the law of Criminal Procedures.
- If the record, registration of the instrument, or the indexed file of notarized documents issued by the Notary Public is lost or damaged in a manner, which could obscure the content of the instrument or the indexed file, then the registration has to be made again, that is in case the instrument of the indexed file of notarized documents matched the original that it has been based on.
- This procedure could be done after obtaining the consent of those concerned, otherwise the issue would be put forward to the competent department to take the necessary action.
Monitoring and Inspecting the Works of Notary Public and Licensee:
- The competent department is tasked with inspecting and monitoring the Notary Public and the license holder for investigating him/her with respect to their functions, in line with the procedures stipulated in the implementing regulations and in a way which is not prejudicial to the jurisdictions of the Judicial Inspection Department at the Supreme Judicial Council, with regard to its powers when interrogating a Notary Public or a notarization license holder. At the end, the outcomes of the investigation shall be referred to the competent department to take the necessary action in this regard.
- The minister is invested with powers to suspend the license holder from work during investigation for a period of no more than 90 days based on a recommendation to be made by the competent department. The suspension would come to an end if a decision was issued to revoke the suspension or if the investigation period expired.
Provisions pertinent to penalties:
- The minister may form a committee/s to review the outcomes of investigation with the Notary Public or the licensee to look into violations he/she had committed and to impose the penalties that are prescribed in the law.
- The committee shall be chaired by an Undersecretary of the ministry, and two members; a Legal Consultant and an Islamic Sharia Consultant.
- The minister shall name who will replace the committee member if a member fails to turn up.
- The term of such membership is 4 renewable years. The committee convenes upon attendance of all members, and gives its award by majority. The committee’s award shall be grounded and supported with reasons. The committee’s award is contestable as well, in accordance with the law of Civil Procedure and it pronounces a verdict after hearing the statements of the Notary Public or the licensee.
- The disciplinary penalties handed to the Notary Public may vary between: reprimanding him/her; deduction from his/her salary with no more than 3-month net salary deduction; depriving him/her from one periodic allowance; or terminating him/her from job.
- As for the disciplinary penalties designed for a license holder, they are: warning; a fine of no more than SAR 500,000; suspension of the license for a period of no longer than 3 years; or revocation of the license completely.
- In all such cases, the final decision issued stating the penalty shall be endorsed in the table designed for such a purpose.
- In case the license (of the license holder) has been repealed and cancelled, the law stipulates the elapse of 5 years effective from the date of issue of the award imposing such penalty so that the license holder could apply again to be re-registered in the table and be issued a license, in accordance with the procedures set for re-registration that are prescribed in the implementing regulations.
- Whoever pose as the license holder, impersonate his/her identity or capacity, or engage in notarization activities without obtaining a license that allows him/her to undertake the profession shall be sentenced to no more than one year in jail or be slapped with a fine of no more than SAR 100,000, or with both penalties.
- A summary of the court ruling may be published in a local newspaper at the expense of the convict, depending on the type, degree and effects of the offense committed, provided that the ruling will not be published unless a final ruling is issued.
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