Demand for the help of a notary in the corporate sphere is steadily increasing. In the first half of 2022, notaries certified more than 144 thousand decisions of the governing bodies of legal entities and their participants. This is 10% higher than in the same period of 2021. At the same time, according to the results of last year, this figure increased by 25%. For comparison: this is five times more than in 2019.
In total, there are more than 6 million small and medium-sized entrepreneurs in Russia. Since the beginning of the year, their number has been increasing every month. The departure of foreign brands, sanctions, currency and market fluctuations provide new opportunities for the growth of domestic companies. But during the crisis, new difficulties in work also appear.
Often, failures in business affect not only business processes, but also those close to the entrepreneur. Unpaid debts and unfulfilled obligations may be the reason for initiating bankruptcy proceedings. In this case, recovery may be directed to the jointly acquired property of the entrepreneur and his spouse. Including for an apartment, joint deposits and more. To avoid dramatic losses, the format of ownership needs to be changed from shared to shared. This is done through a marriage contract or an agreement on the division of property. Both documents must be notarized.
However, this tool should not be regarded as a cap of invisibility, with which you can hide anything from collection. If all property is transferred to the second spouse, and only loans are left to the entrepreneur, the transaction will be considered enslaving. Subsequently, it can be challenged by the “injured” party, the financial manager or creditors.
The distribution of rights and obligations in the marriage contract should be relatively proportional. On the one hand, it is logical to register the only apartment as the personal property of the non-entrepreneur spouse, so that under any circumstances the family would have a roof over their heads. On the other hand, the entrepreneur must be responsible for his financial obligations, that is, he must also own liquid assets.
A marriage contract or an agreement on the division of property must be concluded in advance. If the bankruptcy procedure has already been launched or everything is moving towards it, any transactions made at that moment will most likely be challenged and declared invalid. Therefore, notaries must check the existence of bankruptcy status both for spouses when concluding a marriage contract, and for participants in any transaction, such as a sale.
Another important point is that you need to inform creditors about a marriage contract or an agreement on the division of property, and sometimes even get their approval before signing. If you forget or deliberately hide information, creditors will not be bound by the terms of the marriage contract and will be able to foreclose on property that has become the personal property of the non-entrepreneur spouse.
It is also recommended to involve a notary in serious internal matters of the company. For example, certify decisions or transfer to him the maintenance of a list of members of the company. This allows for equal access to it for all interested parties. When the lists are kept by the CEO, many important processes and transactions are closed on him. This means that they can be deliberately blocked or disrupted for objective reasons, for example, due to illness or death of the director.
It also makes sense to immediately conclude corporate agreements with business partners in order to settle the main issues of joint activities in advance. And provide for options to buy or sell shares. This will come in handy if something goes wrong or, conversely, if the business is successful and one of the participants wants to increase the share. In addition, it is worth paying attention to convertible loan agreements. They allow you to raise funding and provide the investor with a share instead of a refund.
The help of notaries can also be useful when concluding transactions with external counterparties. This is especially true for small companies that do not have their own professional lawyers. Notaries work in the “one-stop shop” mode: they promptly request the documents necessary for the transaction, check the powers of the parties and legally significant facts, help to understand the details, and reveal the real will of the parties. After the transaction is certified, the notary sends documents for registration, when necessary. If entrepreneurs are located in different cities, the transaction can be carried out remotely.
One of the fundamental advantages of a notarized contract is greater trust on the part of judges, if it comes to that, as well as the ability to make a notary’s execution on it. For example, if we are talking about a loan agreement and the other party does not repay the debt, you can immediately apply to the bailiffs to recover money or collateral, bypassing the court. For the same reason, some entrepreneurs certify supply contracts, construction contracts and others with notaries.
By the way, not everyone knows about such an instrument as a simple partnership agreement, which can also be concluded with a notary. It allows, for example, two individual entrepreneurs to conduct a joint business without forming a legal entity. Such contracts are also drawn up, for example, by neighboring entrepreneurs in order to conduct communications to their retail outlets or offices.
The author is a member of the commission of the Federal Notarial Chamber on image, interaction with the media and public organizations
The position of the editors may not coincide with the opinion of the author
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