Source: Copyright: Chris Watters, Chris Watters Attorneys Bedfordview, 2008

In terms of the Immigration Act, there are two types of foreign spouses. The first is the foreign national who is the spouse of either a South African citizen or of someone who has permanent residence in South Africa. The second type of spouse is the foreign national who is the spouse of another foreign national and who is in South Africa or is coming to South Africa to, for example, take up employment. The category into which one’s spouse falls dictates the procedures and requirements for getting an appropriate temporary residence permit for the spouse.

For purposes of immigration law there is no distinction between married and unmarried couples nor is there a permissible distinction arising from the couple’s sexual orientation. The key issue for the Department of Home Affairs, in this regard, is whether or not the couple are in a relationship that is monogamous, is in good faith and is intended to be permanent.

Whilst customary unions are deemed to be a qualifying relationship, persons in other potentially monogamous relationships, such as marriages by Islamic rites, are for all practical purposes disqualified. The term “monogamous” also requires that if either party has previously been married, that such relationship must have been formally ended by divorce.

If a foreign national is coming to SA to work, she or he is allowed to bring their spouse (and lawful dependants) for the duration of that appointment subject to them all getting their correct permits which includes infant children too.

If the foreign national’s spouse also wants to find and take up employment, he or she and the would-be employer have to satisfy the same requirements as any other foreign national wishing to take up employment.

One specific requirement the foreign couple must address is that if they are not married, they have to prove their relationship by showing that the relationship has been duly registered by the authorities in the country in which the relationship started. The problem is that very few countries in fact recognise life partnerships. The way around this is that the couple will need to apply to the Director General for a waiver of that requirement and will need to give him good reason to do so. It is only once such waiver is granted that the application for the foreign spouse’s permit can be made. Whilst this hurdle might seem harsh, the reality is that without these checks there could be significant abuses.

This requirement does not apply to the couple where one is a South African citizen or permanent resident. Instead, in terms of the regulations, the unmarried couple have to prove their relationship by producing FICA-style evidence that they live together. This would include utility accounts addressed to the foreign spouse at the couple’s home. A problem here is that until the foreign spouse has an appropriate long term residence permit, such proof will not in fact exist. A practice has therefore emerged in some regional offices of Home Affairs whereby they just overlook that requirement and ask the couple instead to produce a notarial deed of cohabitation and related supporting documentation.

Where the foreign national is the spouse of a citizen or permanent resident, he or she is in a privileged position compared to other foreign spouses should he or she wish to take up employment. The principal requirement to get a work permit for such spouses, is merely a job offer. And it can be in any field the spouse can find employment: it could even be waiting on tables.

If either of the parties to the relationship was divorced overseas, the Department will want to see a copy of that Order certified by the issuing authority. In addition, if children are to accompany the divorced party, the Department will want to see proof that there is due permission to remove the children to South Africa.