What options are there for the foreign national in a relationship with a South African?
Not a week goes by without my office getting an inquiry from a South African who is at his (or her) wit’s end because their foreign partner or spouse, either does not have a permit or is travelling in and out of the country every few months (or less) in order to stay legal – and they don’t know what to do.
It surprises many to find out that actually, South Africa (currently anyway) has a very accommodating and liberal attitude towards foreigners who wish to stay in South Africa because they have a partner or spouse who is South African – for the most part, anyway.
Before I deal with this, I need to do the usual ‘lawyer’ thing and deal with definitions – what does the Immigration Act mean when it talks about a “spouse”, what qualifies as a “relationship”, etc:
- When we talk about “South Africans” in this context, the term includes both SA citizens and those persons who have been granted permanent residence in SA.
- To be the “spouse” of a South African for purposes of this country’s immigration laws and residing in SA, you do not need to be married.
- The term “spouse” includes persons who are genuinely “living together” and have been for at least two years, and those who are married or in civil unions.
- The term “spouse” includes persons in same-sex and heterosexual relationships.
- The term “spouse” excludes persons who in a relationship which is potentially polygamous except for those in marriages which have been registered as “customary unions”. So where either or both parties to the relationship were previously married but are not divorced, such a “spousal relationship” is deemed to be polygamous and the foreign spouse does not qualify for the dispensation spelt out below.
- If you are the fiancé of a South African (whether formally or informally) but you are not in a “spousal relationship which is intended to be permanent”, you do not qualify to be a “spouse” for purposes of the Immigration Act [“the Act”].
- If you marry a SA citizen in order to qualify for residence rights in SA, this is referred to as a “marriage of convenience” and is double jeopardy. Not only do you not qualify for a visa (and if you do get a visa based on the relationship and the status of the marriage is discovered, your visa will be withdrawn) but, at the same time, you do remain married.
- A person who is the “spouse” of a South African is defined to be a “relative” of the South African, although that may sound confusing.
- With effect from 26 May 2014, a spousal relationship (where the couple are not married) must be as a minimum of two years old, for the expat spouse to qualify for a ‘spousal visa’.
A person who is in a qualifying spousal relationship with a South African and who wishes to stay in South Africa with their SA spouse, is entitled to apply for what is commonly termed a “spousal visa” which is issued in terms of section 11|(6) of the Act.
The spousal visa is usually issued for two (2) years at a time and can be extended – so long as the relationship still exists.
The spousal visa is issued in terms of section 11(6) of the Act. This is also the visa to be applied for if the foreign spouse needs or wishes to take up employment – and has been offered employment. As part of the application, the Department of Home Affairs will want to see that offer in writing. The would-be employer does not have to have advertise the post and the spouse does not need to have any special skills. The offer of employment can be to wait on tables at a coffee shop or pizzeria, if needs be. This is also the visa to apply for if the spouse wishes to be self-employed. The visa that is then issued is worded to the effect that the visa holder is given permission to “accompany SAC spouse ID no …. and to be employed by [ABC (Pty) Ltd)]”.
There are two ‘tricky’ aspects to this visa:
- How does one prove that you are in a spousal relationship that is intended to be permanent? Well, the answer is easy if you are married or in a civil union – your certificate does the job. But if you are not married and are instead “life partners” or living together (if those terms mean something different) – what then? The Regulations to the Act call for proof in the form of utility accounts, leases and other such evidence of a joint home and relationship. However in practice, the Department will rather look for what is called a Deed of Cohabitation. This is an agreement between the unmarried couple setting out, principally, how their mutual financial affairs are to be dealt with and managed.
- Your spousal visa is only as good as is your relationship. In terms of Department practice, as soon as one partner walks out (if the couple are not married) or the couple divorce, the visa is deemed to have lapsed and the foreign spouse is at risk of removal. The present Regulations require the foreign spouse to report the end of the relationship to Home Affairs “immediately” after which the Department may cancel the expat’s visa. It does not take an astronaut to work out that this can lead to massive abuse – as does happen.
In the event of a divorce (or in the run up to a divorce), the foreign spouse is not necessarily left “stranded”.
What the options are (for either spouse) – if there are any options at all – will depend on the facts of each case. It would be misleading to attempt to summarise the possible options and scenarios in this article. Persons finding themselves in such a dilemma are instead advised to seek legal counsel from someone well-versed in immigration law.
By way of a concluding note, once a spousal relationship is five years old, the foreign spouse qualifies to apply for permanent residence. But note that in terms of Department practice, if the couple (not being married) marry during that five-year window or once the application is submitted, the ‘clock is reset’ and the couple have to be “married” for five years before the application for permanent residence can made (again).
CHRIS WATTERS ATTORNEYS
© chris watters 2016