What happens to a spouse on separation or divorce
I am a lady from Zimbabwe who came to South Africa to study in 2006. Whilst at university I met and married a man who is a permanent resident of this country. We have been married since June 2010. I am currently on a spousal visa. We have one child, who as a result of his father’s status, is a South African citizen. My son is 3 years old. My husband and I have been having problems and he moved out of our home in October 2012. Despite numerous attempts by family to help us resolve things, he insists that he wants a divorce.
When my husband files for divorce, my assumption is that I would automatically lose my residency status in South Africa. Would that mean I would lose my son as well? Would a court rule against me for custody of my son because I have not as yet secured employment? My husband has stated that he will not let me move to Zimbabwe with my son? Do I have any options?
Chris Watters replies:
In summary, a permit to reside in SA on the basis that the foreign national is living with or married to a South African (citizen or permanent resident) lapses as soon as the relationship ends. Sometimes Home Affairs even takes the view that the permit lapses as soon as either spouse walks out – it does not wait for the divorce because it is concerned only with whether or not there is a “relationship” between the parties.
That said, you would be entitled to apply to change your permit to allow you to accompany your SA citizen child. I would not see a court separating a mother and child. In any event, the Courts do not make deportations orders – only Home Affairs does that.
The problem that does arise is that there is no permit that allows you to accompany your child AND to work. Currently, one would have to make a direct approach to the Minister to get such authority.