Joseph and Maria want to get married in terms of their tradition. They are concerned that South African law won't recognize their marriage.
Are there any requirements that they would first need to meet before their marriage could be recognised?
Let's examine what the law states.
In terms of South African law, there are three types of marriages which are recognised: 
1. Civil marriage: This type of marriage is regulated by the Marriage Act 25 of 1961. It can only be entered into by a man and a woman, and unless an ante nuptial agreement is signed specifying that the marriage will be out of community of property, with or without the accrual system, such a marriage will inevitably be in community of property. 

2. Civil union marriage: This is regulated by the Civil Union Act 17 of 2006 which permits two persons to form a civil union or civil partnership, irrespective of gender. The rights, obligations, and legal ramifications enjoyed by couples who choose a civil union marital regime are the same as those in a civil marriage. Civil Unions are also known as same-sex unions, however, they can also be entered into by couples of the opposite sex. Such a marriage will by default be in community of property, unless it is stated otherwise in an ante nuptial contract. 

3. Customary marriage: It is regulated by the Recognition of Customary Marriages Act 120 of 1998, and it is entered into by a man and a woman, and it needs to be “negotiated, celebrated, or concluded in accordance with any of the indigenous African customary law systems that are practiced in South Africa".

To answer the question, we must turn to the Customary marriages Act 120 of 1998(hereafter the Act), for it recognises and regulates customary marriages. 

Requirements for a valid customary marriage  :

1. The prospective spouses need to be a man and a woman who are both above the age of 18.

2. Both Parties must consent to being married under customary law.

3. Such a union must have been negotiated, entered into, or celebrated in terms of the customary law. This entails that the parties must enter into the marriage in accordance with their respective traditions and customs.

4. If either of the parties to the marriage is under the age of 18, their parents or, in the absence of parents, their legal guardian, must provide their consent. The Act makes provision for a substituted s consent in the absence of a legal guardian.

5. The parties must be competent to marry, which means they must not be blood related.

6. Both the parties must consent to the marriage in order for it to be valid, this means that a person who is incapable of giving consent, such as a person who is mentally ill, cannot get married.

7. A husband in a customary marriage who wants to get married to another woman after the Act took effect must also abide by another requirement outlined in section 7(6) of the Act, which is to make an application to the court to authorize a written agreement that will govern the future matrimonial property system of his marriages. Failure to comply does not make the subsequent marriage void; rather, it makes it a marriage out of community of property.

8. A party whose civil marriage is still in effect cannot enter into a customary marriage with another person while the civil marriage still exits.

9. The payment of lobola is not a mandatory requirement for a customary marriage to be valid, however if it is paid, it demonstrate that the union was arranged in line with custom.
When should a customary marriage be registered?
Although failing to register a customary marriage does not render a marriage invalid if there is only one husband and one wife, it does however render a marriage invalid if the husband marries a second wife after the implementation of the Customary marriages Act. Registration is therefore advocated because it provides the strongest possible evidence that a traditional marriage actually took place.  

After the Recognition of Customary Marriages Act came into effect, all marriages which were entered into before or after the 15th of November 2000, are required to be registered with the Department of Home Affairs. However if you became married after the law took effect, you need to register your marriage three months after the wedding with the Department of Home Affairs.  

If the registration officer is satisfied that a  customary marriage has been concluded, then the marriage will be registered, and the parties will receive a registration certificate which will  serve as evidence of the existence of the marriage and this could help to resolve any potential future disputes. 
It is important to note that a customary marriage with a single husband and wife that is not registered remains legitimate;  however, a subsequent customary marriage that is not registered after the first one becomes invalid. 

What if Joseph and Maria want to enter into a civil marriage after being married under customary law?
If Joseph has no other wives, then he can get married to Maria under civil law as well, even if he is already married to Maria under customary law. However, neither of the parties will be able to enter into customary marriages with anyone else while they are married to each other under civil law.

Joseph is now married to Maria in terms of customary law. However, Joseph wants to enter into another customary marriage with his other girlfriend Paulina.
The Act permits a person to be married to multiple people at the same time (polygamous marriages) if all the marriages are customary marriages because a person is not allowed to have a customary marriage and a civil marriage at the same time with different parties.  

Therefore Joseph can enter into another customary marriage with Paulina while his customary marriage to Maria exists, provided that at the time he enters into another marriage with Paulina, he is not married to Maria in terms of the civil marriage. Joseph is also required by the law, at his own expense, to obtain a court order from an appropriate court that will govern his future matrimonial property system.

Uncertainty as to whether a customary marriage was concluded

Many couples struggle with the question of whether they are still married after their separation. The Act requires the spouses to make sure they register their customary marriage in order to remove any ambiguities. However, a marriage is not always invalid if it is not registered. 
Separated couples who are unsure and confused about whether they are married or not must seek for a declaratory order in the High Court to confirm if they are legally married or not under the customary law. 
Conclusion

It would be advisable for couples who are intending to, or are in the process of getting married in accordance with the customary law, to register and comprehend the patrimonial implications of such a union. It would also be wise for separated spouses who are still unsure of whether they had a customary marriage to seek legal clarification from a family law expert .Failing to do so could have legal repercussions for future unions with different partners or it could affect one partners claim to the assets of the other partner. 





BIBLIOGRAPHY 

Literature
Department of Justice and Constitutional Development (Getting married under customary law)  available at https://www.justice.gov.za/links.html accessed 6 July 2022. 

Khumalo P Does Lobolo Constitute a Customary Marriage , Schoeman Law Inc 2020 

Marriage Law South Africa Quick Guide Legal Wise South Africa available at https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages accessed 6 July 2022