The Immigration Act No 13 of 2002 “The Act” does not differentiate between spouses who are married to one another or are in customary unions, civil unions or merely cohabiting as permanent cohabitative partners.
Source: Julian Pokroy
Chairperson: Immigration Nationality and Refugee Law Committee of the LSNP
Chairperson: Immigration and Refugee Law Committee of the LSSA
Any of these categories, together with substantiation will be capable of forming the basis of an application for temporary or permanent residence, provided that the substantive supporting documentation forms part of the substantive application to the Department of Home Affairs.
A marriage certificate, in the case of a marriage, would be sufficient proof of a marriage having been finalised. Collateral and supporting documentation to such an application could be a copy or proof of registration of an antenuptial contract and a background statement to the relationship providing proof that it is indeed a de facto marriage.
In the case of a customary union generally a receipt proving payment of lobola and a lobola contract would be the type of documentation required.
In the case of a civil union an agreement in respect of that civil union would be sufficient.
Where the marriage has been conducted on a religious basis such as in the case of the Muslim and Jewish religious traditions then a document from the marriage officer confirming the marriage having been solemnized would be sufficient.
Where a couple, heterosexual or homosexual, are cohabiting in a permanent cohabitative relationship it is a requirement of the Immigration Regulations that a cohabitation agreement be provided.
Based on proper and substantive documentation there should be no impediment to the granting of the relevant temporary residence status in this regard.
The situation however becomes a bit more complex when permanent residence is being applied for.
In terms of section 26(b) of the Act under the heading “Direct Residence” a partner who has been the spouse of a citizen or South African permanent resident for a period of 5 years, has substantiated the continued relationship in order to prove that a good faith spousal relationship or marriage exists, for a period of 5 years may apply for permanent residence in this category.
It is a moot point as to whether a period of cohabitation which results in a marriage can calculate continuous years of cohabitation in order to found a five year application of this nature.
The Department of Home Affairs has on various occasions taken an attitude that you are either in a spousal cohabitative relationship or a marriage and if you hypothetically interrupt your spousal cohabitation and get married that the clock must start ticking from day one again.
In a recent matter handled by the writer of this article and in a Ministerial Appeal on this issue, the matter was successfully concluded on the basis that the years of cohabitation run together irrespective of whether they are in one or other of the two camps.