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However, times have changed, and many black or interracial couples have increasingly become more aware of the broader legal implications of the presence or absence of an ANC at the time of exchanging vows.
There are two issues that immediately come to mind when considering an ANC. Firstly, how 'romantic' is the concept of an ANC and does it really inspire a 'happily ever after'?
Secondly, if a couple agrees on an ANC, when should it be entered into?
Happily ever after . . . that is what we all expect from a marriage.
This is the reason why many African elders would frown upon an ANC, which in essence, 'seems' to give the couple an easy way out of their relationship during challenging times.
The notion that a tough marriage should be endured still exists, so as not to bring shame to the family of both the bride and groom.
No family wants to know that their child was the reason that a marriage ended, and would go to great lengths to ensure that it does not end.
Entering into an ANC may then be seen as a level of rebellion, and a couple wanting an ANC are likely to experience unnecessary scrutiny and criticism from their families, in the midst of what is already an emotionally-charged event.
It can be a difficult decision to agree upon, and may necessitate an awkward discussion.
If a couple have had that awkward discussion, and agree to enter into an ANC in the presence of a notary, the big question (that is often overlooked) should be when is the ANC signed?
Most African couples have two weddings; a traditional wedding, which is a 'lobola' ceremony; followed by a white wedding celebration in the presence of a marriage officer, which is recognised as a civil marriage in terms of the Marriages Act of 1961.
As the 'white' wedding is often the larger of the two ceremonies, couples would usually aim to get the ANC signed and concluded before the second ceremony, but after the lobola ceremony has been held.
What couples should be aware of is the fact that by the time the second ceremony is conducted, they are already deemed legally married in community of property according to the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which sees the traditional wedding as a legally binding marriage.
In other words, a valid and legally recognised marriage already exists even before the two parties sign the ANC in front of the notary.
The RCMA states that the matrimonial property regime automatically kicks in at the conclusion of the lobola negotiations, and the two would be classified as married in community of property, in terms of section 7(2) of the RCMA.
If the couple concludes a civil marriage (a white wedding) and the ANC is signed prior to this civil marriage, the customary marriage will change into a civil marriage.
However (and this is a big however), it will not change the condition that the two parties are married in community of property. This will only change after the court’s order provided for under section 10 of the RCMA.
This would then potentially cause unexpected challenges should the marriage be dissolved, as there could be reason to argue that the marriage was originally entered into in community of property, prior to the signing of the ANC.
Timing is everything – the intending couple who have agreed on an ANC should make sure that they are accurately informed when preparing to enter into this agreement.
