So you got married Traditionally and didn’t sign an ANC? Probably because it was either an afterthought or you did not realise that after the lobola negotiations and traditions are concluded, that it means, in the eyes of the law, you are legally married.
In terms of the Recognition of Customary Marriages Act 120 of 1998 (“RCMA”), a customary marriage is defined as a marriage concluded in accordance with Customary Law. As we have varied African cultures such the Bapedi, AmaZulu, Basotho, Batswana, Amaxhosa, Tshivenda, Xitsonga, Ndebele and Siswati, likewise,these cultures while similar in outlook, have many differences in tradition too.
The bottom line however, is that if the families of the parties have accepted the intended couple as married in terms of their individual customs and traditions, the RCMA recognizes the marriage as lawful. All that is required thereafter, is for the couple to register the marriage with the Department of Home Affairs in order for a certificate of marriage to be issued. The RCMA allows for a period of 3 months from the date of conclusion of the traditional marriage, within which to register the marriage with the Department of Home Affairs, however, failure to do so does not invalidate the marriage.
This question is becoming increasingly more apparent among African couples, who are under the misapprehension that a traditional wedding does not carry the same weight as the typical civil ‘’white’’ wedding. In fact, we are often contacted by clients seeking to sign an ANC after having concluded a traditional marriage, only to be advised that its too late to do so.
The stark reality is that the RCMA came into operation in November 2000, wherein traditional marriages were finally, conferred the same legal status as civil marriages. In simple terms, this means that once parties marry traditionally, the default matrimonial property regime automatically applies i.e. community of property, entailing that they cannot sign an ANC”.
The term ANC is an abbreviation for the word “antenuptial contact”. By its very definition, the Latin word “ante”, means “in front of” or “before”. Therefore, an ANC, can only be signed before a marriage takes place, whether that marriage is entered into in terms of traditional rights or a civil ceremony. An ANC is also referred to as a Pre-Nuptial Agreement.
The only way to change a matrimonial regime is to apply to the High Court, with grounds as to why the regime should be changed. If the Court is satisfied that good grounds to do so exist and that no creditors will be prejudiced or have objected to the application, then an order may be granted allowing the married parties to conclude a Post Nuptial Contract.
Unfortunately, such an Application is made to the High Court which entails an expensive process and can be a long wait, especially if creditors have objected to the change, as the Application requires:
After all this is done, the Application must then be enrolled on the motion proceedings Court roll at a date pre-arranged by the Registrar of the High Court, which could take anything from 6 weeks to 6 months, if not longer.
Once the application is heard and if successful, the draft post nuptial agreement must then be signed and registered along with the Court Order at the relevant Deeds Office.
All the effort, time and most especially money, can be avoided if future spouses take the time to consult with a Notary Public beforehand. The costs to do is cost effective and the process to register the ANC, simple and quick.
For more information or assistance with either an ANC or post-nuptial contract, please feel free to contact our offices.
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