What Is a Notarial Deed?

A notarial deed is a formal legal document drawn up or executed before a notary, which the law treats as especially reliable evidence. The term comes mainly from civil law countries, where the notary drafts the deed as a public official. In Australia, a notary usually witnesses or certifies your deed rather than creating one with that special status.

Key takeaways

• "Notarial deed" usually means a civil law document, such as a Spanish escritura or a French acte authentique, drafted by a civil law notary.
• In Australia, a deed is a formal document that you sign under your state or territory's rules. A notary may witness it, but does not normally draft it.
• An Australian notary public is not the same office as a civil law notary, although both are called notaries.
• When a foreign authority asks for a notarial deed, the usual routes are a power of attorney, the country's consulate, or a notarial act here that it agrees to accept.
• The receiving authority decides what it will accept. Ask before anything is signed.
• Whether a deed is legally effective is a question for a solicitor, in Australia or in the other country.

Why does the term cause confusion?

Because the word "notary" means two different jobs. In most of continental Europe, Latin America and many other civil law countries, a notary is a legally trained public official. They draft important documents, check that the transaction is lawful, read the document to the parties, and keep the original in their official archive. Their documents have strong legal force.

In Australia, which follows the English common law tradition, a notary public is usually an experienced lawyer appointed to perform notarial acts, mostly for documents going overseas. They witness signatures, administer oaths, certify copies and issue notarial certificates. They do not normally draft your transaction or confirm that it is lawful, and they never certify that a document's contents are true. Our guide to different kinds of notary compares the roles.

What is a notarial deed in a civil law country?

In many civil law countries, a notarial deed is a document the notary prepares and executes in an official form. The parties appear before the notary, often with identification checked in detail. The notary reads the deed aloud or confirms the parties understand it, the parties sign, and the notary signs and seals it. The original usually stays in the notary's official records, and the parties receive certified copies.

Such a deed is treated as strong evidence of what it records, often hard to challenge in court. In some systems parts of it can be enforced directly, without a court judgment. Many countries require a notarial deed for important transactions, such as a sale of land, forming a company, a marriage property agreement or a gift of significant assets. The detail varies by country, and only that country's law or its notaries can say what is required.

What is a deed in Australia?

A deed is a formal written document by which a person or company makes a binding promise, transfers something or confirms an arrangement. Unlike an ordinary contract, a deed can generally be binding without anything being given in return. Common examples are a deed poll for a change of name, a deed of gift, an indemnity, a release, and a trust deed. Our guides to a deed of gift and a trust deed cover two of them.

How a deed must be signed and witnessed depends on the law of the state or territory, and for companies on the Corporations Act. The rules have changed in recent years, including for electronic signing, and they differ across Australia. A deed for Australian use is usually witnessed under local rules, often by an adult who is not a party, not by a notary. A notary becomes relevant when the deed is going overseas and the foreign recipient wants proof of who signed it. Whether a particular deed is properly executed is a question for a solicitor.

Can an Australian notary make a civil law notarial deed?

Not in the full civil law sense. An Australian notary cannot give a document the special status that a notarial deed has under another country's law, because that status comes from that country's law and its own notaries. What an Australian notary can do is perform a notarial act that other countries recognise. They can witness your signature on a deed, identify you and record the details in a notarial certificate. Some Australian notaries also prepare formal notarial instruments that resemble the civil law style. Once DFAT adds an apostille or authentication, the foreign authority can rely on the notary's signature and seal. DFAT's page on documents it can legalise explains that a private document becomes a public document, and so legalisable, once notarised.

Whether that is enough is for the receiving authority to decide. Some accept a document signed before an Australian notary and apostilled. Others insist that the deed itself be executed before one of their own notaries, and accept only a power of attorney from abroad. The only way to know is to ask the foreign notary, registry or lawyer handling the matter. Our guide to the legal effect of a notarial certificate explains what the Australian certificate proves.

What are the usual routes?

Most people who are asked for a notarial deed end up on one of three routes. The first is a power of attorney. You sign it before an Australian notary, DFAT apostilles or authenticates it (check the HCCH status table on the day to see which applies), and a trusted person or lawyer in the other country signs the deed there, before a local notary, on your behalf. This is common for buying or selling property abroad. Our guide to international powers of attorney covers how that works.

The second is the country's consulate in Australia. Consulates of some countries can perform notarial acts for certain documents, particularly for their own citizens. What they can do varies widely, so ask the consulate directly. The third is a notarial act in Australia that the foreign notary or registry has agreed in advance to accept. This is more likely for simpler documents, such as a declaration, a consent or an acceptance, than for a property transfer.

What you are asked for	Usual route	Who to ask first
Deed of sale or purchase of foreign property	Power of attorney signed here; deed signed there	The foreign notary handling the sale
Company formation deed abroad	Power of attorney, sometimes with notarised company documents	The foreign notary or company lawyer
Marriage property agreement under foreign law	Often signed before a notary in that country or its consulate	A lawyer in that country
Declaration, consent or acceptance	Signed before an Australian notary, then apostilled	The foreign authority
An Australian deed to be used overseas	Executed under Australian rules, then notarised and apostilled	Your solicitor, then the recipient

How do you handle a request for a notarial deed?

1. Ask exactly what is required. Get the foreign notary, registry or lawyer to say in writing what form of document they will accept.
2. Ask whether a power of attorney will do. It is often the simplest route for property and company matters.
3. Check the consulate option. If the deed must be executed by that country's official, ask its consulate in Australia.
4. Get the wording and a translation. Make sure you understand every word before you sign.
5. See a solicitor for legal effect. Especially for property, family property or company matters.
6. Sign before the notary. Bring photo identification and the original documents the deed refers to.
7. Arrange the apostille or authentication. Then send the original with tracking.

Common mistakes to avoid

The most common mistake is assuming an Australian notary can produce the same document a Spanish or German notary would. They cannot, and the foreign notary may reject it. The second is signing a deed prepared abroad without a translation you understand. The third is having a deed witnessed by a JP for overseas use; a JP's witnessing is not accepted abroad and cannot be apostilled. The fourth is sending the only original without first checking whether it needs DFAT's apostille or authentication. The last is treating the notary as your adviser on the transaction. A notary identifies you and witnesses your signature; your lawyer advises on the deal.

Here is an illustration, not a real case.

Lucia lives in Perth and is selling an apartment in Madrid. Her Spanish agent tells her the sale must be completed by a notarial deed in Spain. She asks the Spanish notary what she can do from Australia, and is told a power of attorney is the usual route. The notary sends a draft in Spanish with an English translation. Lucia signs it before an Australian notary, who identifies her from her passport. DFAT adds an apostille, and her brother in Madrid signs the deed of sale on her behalf.

In short

A notarial deed is usually a civil law instrument, drafted by a civil law notary, with strong legal force in that country. An Australian deed is a formal document signed under state or territory rules, and a notary may witness it for use overseas. An Australian notary cannot create a foreign notarial deed. When one is asked for, the usual routes are a power of attorney, the country's consulate, or an Australian notarial act the recipient accepts. Our document notarisation services page explains what a notary can do for documents going abroad.

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Been asked for a notarial deed and not sure what the other country will accept? Send us the request and any draft, and we will explain each step before you book.