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DIVORCE AND SPOUSAL VISAS.

DIVORCE - WHAT HAPPENS TO A SPOUSAL VISA OF A FOREIGN SPOUSE IN SOUTH AFRICA?

International Divorce Attorney Cape Town

Whenever a foreign national lives in South Africa being a spouse, divorce may posses disastrous repercussions for the expat’s dreams of continued residence in South Africa.  However with a little cautious preparation, that should not often be the case.

Permanent residence under the spousal class is granted in terms of section 26(b) of the Immigration Act of 2002:

“Subject to section 25 and prescribed requirements, the Director-General may issue a permanent residence permit to a foreigner who has been the spouse of a citizen or permanent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists:  Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;”

The above is to be read with regulation 23(6):

“A foreigner contemplated in section 26(b) of the Act who has been issued with a permanent residence permit shall, within the last six months of the second year following the issuing of that permit, avail himself or herself for an interview at any office of the Department.”

Whenever a divorce occurs, the default position of the Department of Home Affairs surfaces from section 43(a) of the South African Immigration Act (the Act) which states the following:

“A foreigner shall –

abide by the terms and conditions of his or her status, including any terms and conditions attached to the relevant visa or permanent residence permit, as the case may be, by the Director- General upon its issuance, extension or renewal, and that status shall expire upon the violation of those terms and conditions.”

 
The last clause of this section is vital:

“ that status shall expire upon the violation of those terms and conditions.”

In practice this means that that where the expat has a one of many visas that connects and restricts their temporary residence to being in South Africa in order to “accompany” his or her husband or wife, that visa will certainly “lapse” on the date of the divorce.  

The above applies regardless of whether or not the other spouse to the broken marriage is a South African or is an expat himself/herself, whom is here, for instance, on a work visa or study visa, etc.

A problem that may occur is when a husband for example abuses his wife and given that South Africa has a no-fault divorce regime. This may leave the abused expat spouse dealing with the terrible dillemma of both being extradited from the country or being driven to go back to the abusive relationship. 

What is the situation where an expatriate is residing in South Africa as a permanent resident which status was awarded on the foundation of him/her being the husband or wife of a South African citizen which in this setting includes another person with permanent residence status.  Everything will depend on the conditions which have been documented on the Permanent Residency Permit. 

What can be done  presuming that the expat spouse considers that he/she needs to remain in SA?

The least complicated situation usually comes about where the husband and wife have not yet divorced and the expat is on a valid temporary residence spousal visa.  In this case, the expat needs to apply urgently to alter the status of their spousal visa to whatever other category of the visa that they require and might qualify for. Based on the expat’s circumstances, this visa application may possibly require that the expat first apply for a special dispensation from the Minister to allow the expat to meet the requirements of which ever visa, given their specific circumstances.

The Constitutional Court in the matter of Nandutu and Others v Minister of Home Affairs and Others [2019] ZACC 24 made it clear that the right to family life is not a coincidental result of human dignity, but instead a key ingredient of it. This judgment grappled with the connected relationship between human dignity and familial rights and how they function along with notions of state security and legislative regimes that seek to protect persons within the borders of the Republic of South Africa.

The applicants in this matter approached the Constitutional Court to vindicate the rights of foreign spouses and children who are required to leave South Africa in order to lodge applications to change their visa status under the Immigration Act. The Court referred to the legislative regime, that effectively left family members at the mercy of immigration authorities, and referred to the cases of Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC) where it was found to be constitutionally invalid on account of the impact that it could have on married couples where one spouse may be required to leave South Africa pending an application for an immigration permit. The same approach may well be followed where one of the parties have to leave the Republic of South Africa as a consequence of the termination of a spousal visa caused by divorce.
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​MAURICE PHILLIPS WISENBERG

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Telephone: +27 21 419 7115


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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Vaccinating Children Covid-19
    • Suspending Parental Rights
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Amended Bill
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities