Spousal Visas in South Africa – Implications on Residency Status and Custody Rights upon Divorce

Background to a client’s dilemma: will her residency status in South Africa be affected when her husband files for divorce?

A client from Zimbabwe came to South Africa in 2006 for studies and married a permanent resident in 2010. They have a three-year-old child who is a South African citizen. The couple is now experiencing marital problems, and the husband wants a divorce. The client is concerned about losing her residency status in South Africa and custody of her child. She wonders if she can move back to Zimbabwe with her son. The situation depends on the type of spousal visa she holds.

Types of spousal visas

There are two types of spousal visas in South Africa: Section 18, allowing a foreign spouse to stay with their partner, and Section 11(6), which permits the spouse to work, run a business, or study. If the marriage ends, the spousal visa of the foreign spouse will lapse, and they must urgently apply for a different visa category based on their circumstances, which may require approval from the Minister of Home Affairs.

South African Law regarding the lapsing of spousal visas

In South Africa, spousal visas are issued to foreign nationals who are married to either South African citizens or permanent residents. These visas allow the foreign spouse to reside in the country as long as the marital relationship remains intact. However, if the relationship comes to an end, whether through separation or divorce, the residency rights of the non-resident spouse under the spousal visa will also cease to exist. In some cases, the permit may even be considered lapsed as soon as one spouse leaves the shared residence, irrespective of whether divorce proceedings have officially started.

A spousal visa is directly linked to the existence of the marital relationship. If the marriage ends, the non-resident spouse’s permit to stay in South Africa will no longer be valid. However, the woman can apply to change her visa status to accompany her South African citizen child, and the courts are unlikely to separate a mother from her child. It’s important to note that deportation orders are issued by the Department of Home Affairs, not the courts.

Recent judgments

Recent legal judgments highlight the importance of family rights and human dignity. The courts are unlikely to separate a mother from her child, and the Department of Home Affairs issues deportation orders, not the courts. However, there is no specific visa allowing a parent to accompany their child and work in South Africa. The foreign spouse would need to seek special authorization from the Minister of Home Affairs to work.

The Constitutional Court’s ruling in Nandutu and Others v Minister of Home Affairs and Others [2019] ZACC 24 emphasized the connection between family rights, human dignity, state security, and immigration laws. The case dealt with the rights of foreign spouses and children who were forced to leave South Africa to apply for changes in their visa status under the Immigration Act. The court criticized the legislative regime that left family members at the mercy of immigration authorities and referred to previous cases where requiring a spouse to leave South Africa during visa applications was deemed unconstitutional.

The client’s residency status in South Africa will be affected if her husband files for divorce, as her spousal visa will lapse. However, she can apply to change her visa to accompany her South African citizen child, and the courts are unlikely to separate them. Nonetheless, there is no visa allowing her to accompany her child and work, requiring special authorization. The Nandutu case underscores the importance of family rights and dignity in immigration matters, protecting foreign spouses and children from undue hardship during visa applications.

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