When Must an ANC Be Signed for a Customary Marriage?

Key takeaways

• Do not use the Home Affairs certificate, a reception date or a later civil ceremony as the automatic ANC deadline.
• Establish whether a valid customary marriage has already been negotiated and entered into or celebrated under the applicable living customary law.
• If the marriage has not yet been concluded, instruct a notary early enough to settle and execute the ANC first.
• The three-month Deeds Registry period concerns registration of an ANC already executed before the marriage; it is not permission to sign after marriage.

1. Start with legal status, not the planned celebration

Section 3(1) of the Recognition of Customary Marriages Act sets the statutory requirements for a valid customary marriage entered into after the Act commenced. The prospective spouses must both be over 18, they must consent to marry each other under customary law, and the marriage must be negotiated and entered into or celebrated in accordance with customary law.

Those words do not create a universal checklist in which one event always determines the date for every family or community. Evidence about negotiations, agreement, family participation, lobolo arrangements, ceremonies, handover or integration, cohabitation and the parties' conduct may matter, but the weight and legal effect of each fact depend on the applicable living customary law and the circumstances.

The Supreme Court of Appeal's decision in Mbungela v Mkabi illustrates the danger of treating one ceremonial step as invariably decisive. On that case's facts, the Court accepted that the bride-handover requirement could be waived and emphasised the flexible, evolving character of customary law. The judgment does not mean that handover is irrelevant in every matter. It means a person should not assume that the absence of a particular event necessarily proves that no marriage exists.

Similar caution applies to lobolo. A negotiation, partial payment, full payment or written lobolo record can be important evidence, but none should be turned into a universal online formula detached from the relevant custom and the parties' facts. A status assessment may require evidence from both families and, where disputed, judicial determination.

This is why ANC timing should be treated as a status-first exercise. Before signing, give the notary a complete chronology of every event that could be legally significant. Do not tell the notary only the date of the future reception or civil ceremony if customary negotiations or events have already taken place.

2. Registration proves a marriage; it does not create every marriage

The Recognition of Customary Marriages Act places a duty on spouses to ensure that the marriage is registered. Section 4 also allows either spouse to apply for registration and provides a process for the registering officer to investigate the existence of the marriage. A registration certificate is prima facie proof of the marriage and its recorded details.

Section 4(9), however, says that failure to register does not affect the validity of a customary marriage. A couple can therefore be legally married even though no Home Affairs certificate has been issued. The reverse is also important: a planned registration appointment is not a safe deadline for signing an ANC if the marriage was already concluded under section 3 and the applicable customary law.

The ordinary statutory registration period is three months after conclusion, subject to longer periods prescribed by the Minister. As at 21 July 2026, Home Affairs has urged people with qualifying unregistered customary marriages to use a special registration period ending on 31 August 2026. The official notice and current government announcement should be checked for eligibility and process before attending.

Use that opportunity promptly if it applies. Registration can make proof, estate administration, benefits, identity records and later legal processes more manageable. But do not describe 31 August 2026 as a validity deadline, and do not assume that missing it automatically means the marriage never existed. Where the deadline, proof or status is disputed, obtain advice on the available registration or court process.

3. If no customary marriage exists yet, execute the ANC first

For a monogamous customary marriage entered into after commencement of the Act, section 7(2) provides that the marriage is in community of property and of profit and loss unless those consequences are excluded by an ANC that regulates the matrimonial property system.

The practical sequence should therefore be:

1. disclose all prior civil, customary, religious and foreign marriage facts to the notary;
2. map the intended customary process and identify events that may conclude the marriage;
3. choose the intended property system and settle the ANC wording;
4. execute the ANC before the customary marriage is legally concluded;
5. retain the notarially executed original or certified copy and the notary's filing details;
6. complete the intended customary process; and
7. confirm registration of both the ANC and the customary marriage through the appropriate channels.

The Deeds Registries Act requires an ANC executed in South Africa to be attested by a notary and registered in a deeds registry within three months after execution, unless a court authorises otherwise. That registration rule protects the contract's effectiveness against people who were not parties to it. It does not create a three-month grace period in which intended spouses may marry first and execute later.

The ANC notary checklist can help assemble identity, status, financial and drafting information for the appointment. It does not decide whether a customary marriage already exists. If significant customary events have occurred, place the chronology and supporting records before the notary and a family-law practitioner before relying on an intended signing date.

4. The 2026 Constitutional Court judgment closes a common timing argument

In VVC v JRM and Others, the parties concluded a customary marriage in August 2011. They signed an ANC in 2019 and later solemnised a civil marriage with each other in 2021. The dispute required the Constitutional Court to determine whether section 10(2) of the Recognition of Customary Marriages Act permitted the parties to use that sequence to change the matrimonial property system without judicial oversight.

The majority answered no. It held that the later civil marriage did not create a new property-system starting point that validated the intervening ANC. The customary marriage already existed, and the spouses could not alter its proprietary consequences through an extra-judicial agreement. The section 21 court process was the available route for a post-Act monogamous customary marriage.

The judgment included a dissenting view, but the majority holding controls. An article, adviser or template that relies on the dissent to say that spouses can sign an ANC after a customary marriage but before their later civil ceremony is not stating the governing result.

The case also shows why a formally correct notarial document may still fail if the underlying status date is wrong. Notarial attestation and later deeds registration cannot convert a post-marriage agreement into a valid pre-marriage ANC. The chronology must be resolved before execution, not reconstructed after a dispute, death or divorce.

5. A later civil marriage is not a reset button

Section 10 allows spouses in a monogamous customary marriage to contract a civil marriage with each other if neither is married to another person under customary law. The later civil ceremony does not simply erase the existing customary marriage and allow the spouses to choose a new property system privately.

Following the VVC majority, use the date and legal consequences of the existing customary marriage as the starting point. Do not assume that an ANC can be placed between the customary and civil ceremonies to achieve a change that would otherwise need a court order.

This distinction matters for couples who plan two celebrations, delay civil registration, or describe an earlier family event as an engagement. Labels used socially are not conclusive. If the earlier process may have satisfied section 3 and living customary law, pause the ANC and civil-ceremony plan long enough to obtain a status opinion.

6. If already married, investigate section 21 instead

Section 21(1) of the Matrimonial Property Act permits spouses to apply jointly to court for leave to change the matrimonial property system that applies to their marriage. The court must be satisfied that there are sound reasons for the proposed change, that sufficient notice has been given to creditors and that no other person will be prejudiced.

If those requirements are met, the court may order that the existing system no longer applies and authorise the spouses to enter into a notarial contract regulating their future matrimonial property system on conditions set by the court.

This is not a clerical late-registration application. It is a court-controlled change with evidence, notice and potential creditor or third-party consequences. The work commonly includes:

• establishing the marriage date and current system;
• preparing a complete asset, liability and creditor picture for both spouses;
• explaining the sound reasons for the requested change;
• identifying prejudice risks and proposed safeguards;
• giving the required notice;
• obtaining the court order;
• executing the authorised notarial contract; and
• completing the ordered registration steps.

Do not backdate an ANC, conceal the earlier customary events or ask a notary to describe already-married parties as unmarried. Those steps create evidential and professional problems without curing the underlying timing defect.

The notarial services hub explains the broader service category. A notary can draft and execute the authorised instrument, but a disputed marriage date or section 21 application may require coordinated family-law and litigation work rather than a form-only service.

7. A further customary marriage uses a different court process

Section 7(6) of the Recognition of Customary Marriages Act addresses a husband in a customary marriage who wishes to enter into a further customary marriage with another woman. He must apply to court for approval of a written contract regulating the future matrimonial property system of the marriages before entering into the further marriage.

The court considers the existing property system and may terminate or divide it as the Act directs. The existing spouse or spouses and the prospective spouse must be joined in the proceedings. The process protects affected proprietary interests and is not interchangeable with an ordinary ANC or a section 21 application for one monogamous marriage.

Anyone contemplating an additional customary marriage should obtain advice before the further marriage is entered into. The family-law hub is the broader topic route for marriage status, matrimonial property, divorce, maintenance and related family-law questions.

8. Build a chronology that another person can verify

Create one dated timeline rather than separate versions for the notary, Home Affairs and the families. Record what happened, who participated, what was agreed and which document or witness can support each entry.

Include, where relevant:

• identity documents and current contact details for both intended spouses;
• details and proof of every prior marriage, divorce, annulment or deceased spouse;
• dates and messages arranging family meetings or negotiations;
• lobolo letters, written agreements, receipts and payment records;
• names and contact details of family representatives and other witnesses;
• photographs, invitations, travel records or venue records linked to ceremonies;
• communications about handover, integration, celebration or cohabitation;
• Home Affairs enquiries, certificates, applications and recorded status;
• any planned or completed civil-ceremony documents;
• every ANC draft, instruction, quotation and notary communication;
• the signed notarial document and deeds-registration evidence, if one exists; and
• a current list of assets, debts, suretyships, businesses, trusts and creditors if section 21 may be required.

Preserve originals and export important digital messages with dates and participants visible. Do not edit screenshots to remove inconvenient parts of the exchange. If family members disagree about what an event meant, record the competing account and its supporting evidence instead of rewriting the chronology as settled fact.

9. Use the correct route for the status you actually have

Route A: no customary marriage has been concluded

Confirm the intended customary sequence, settle the property-system decision and execute the ANC first. Leave enough time for advice and drafting; the legally significant event may arrive before the public celebration.

Route B: the status is uncertain

Pause execution and obtain a focused status assessment. Ask which custom applies, which requirements were satisfied, whether any requirement was waived, what date is supportable and what evidence is missing. Do not gamble on the absence of a certificate.

Route C: a post-Act monogamous customary marriage already exists

Treat the current system as operative unless authoritative advice or an order establishes otherwise. If both spouses want to change it, investigate a joint section 21 application and the later court-authorised notarial contract.

Route D: a further customary marriage is proposed

Obtain advice on section 7(6) before the additional marriage. Identify and join every person whose proprietary interests the Act requires the court to consider.

Route E: a civil ceremony between the same spouses is planned

Do not treat it as a new ANC deadline. Resolve the customary marriage date and existing property system first, applying the VVC majority judgment.

10. When professional help should be prioritised

Seek help before the next ceremony, signing or registration step where:

• customary negotiations or ceremonies have already started;
• one family says the marriage exists and the other disputes it;
• the ANC was signed after any potentially conclusive customary event;
• an ANC was executed in time but not registered within the prescribed period;
• Home Affairs records are absent, incomplete or inconsistent;
• either person has a prior marriage that may still exist;
• a later civil marriage has occurred or is planned;
• either spouse wants to change an existing property system;
• a further customary marriage is contemplated;
• creditors, insolvency, estates, trusts or business interests may be affected; or
• death, divorce or a property dispute has already made status contested.

The notary directory supports notary discovery for pre-marriage execution and court-authorised contracts. Where the matter involves disputed status, litigation or competing family evidence, compare an appropriate lawyer or law firm with relevant family-law and matrimonial-property experience.

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