Should I wait for the spousal permit to be extended before informing Home Affairs that we are divorced?

The long answer

Divorce Laws explains that the default position of Home Affairs is based on section 43(a) of the Immigration Act  which says that  

“A foreigner shall –

abide by the terms and conditions of his or her status, including any terms and conditions attached to the relevant visa or permanent residence permit, as the case may be, by the Director-General upon its issuance, extension or renewal, and that status shall expire upon the violation of those terms and conditions.”
 
In practice, Divorce Laws says, this means that where the foreign husband or life partner has one or more visas that connect and restrict his temporary residence to being in South Africa in order to “accompany” his wife, that visa will certainly “lapse” on the date of the divorce.  

Permanent residence is granted under section 26(b) of the Immigration Act which states:

“… the Director-General may issue a permanent residence permit to a foreigner who has been the spouse of a citizen or permanent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists:  Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permit the relationship no longer exists, except in the case of death;”

According to a 2020 article by Bregman Moodley Attorneys, 
“In terms of section 26(b) there would be no impact on the permanent residence (and subsequent green ID) if the relationship ended more than two years after the permanent residence was issued.  If it ends within the two-year period, either party could inform the Department of Home Affairs, but it is usually the South African citizen / initial permanent residence permit holder spouse that the application had been made under, who attends at a regional office to inform immigration inspectorate of the breakdown of the relationship on affidavit.

The inspectorate will then contact the foreign national to appear before them and the information will be forwarded to the office of the Director-General.  As it is at the Director-General’s discretion, there have been cases where the permanent residence was not withdrawn, despite the end of the relationship, e.g. if there are minor children who would benefit from having the foreign national parent to remain in the country.”

But generally, when the spousal visa or permanent residence lapses or is withdrawn, the foreign national automatically becomes an “Illegal foreigner”.  

Chris Watters Attorneys says that the least difficult scenario is when the couple have not yet divorced and the foreign spouse is on a valid temporary residence spousal visa. In that case, the foreign spouse would need to apply urgently to change the status of their spousal visa to whatever other category of visa they might qualify for. This visa application, he says, might require that the foreign spouse first apply for a special dispensation from the Minister to allow them to meet the requirements of the visa, given their specific circumstances.  

Chris Watters goes on to say that if the foreign spouse’s visa has lapsed as a result of the divorce, then, if the foreign ex-spouse wishes or needs to remain in South Africa, their first step will be to seek “legalization”. If that is approved, they can then start with the visa application process.  However, he says that getting that legalization is often a challenge in its own right.  This is because in terms of Regulation 30(1)(a) to the Act, the test to be satisfied is that the foreign ex-spouse must:

“ . . . demonstrate, in writing, to the satisfaction of the Director-General that he or she was unable to apply for such status for reasons beyond his or her control; . . .”

June Luna Immigration Attorneys comments that a couple is legally required to report their separation to the Department of Home Affairs, who will then begin the process of cancelling the visa/permanent residency. She goes on to advise that if you are not yet divorced and are thus still legally bound together, the foreign citizen should apply for another type of visa before the divorce.

She says that if a foreign citizen struggles to meet the requirements of any other visa option available, special dispensation can be applied for from the Minister of Home Affairs.

This is where the recent court judgements are important:

Bregmans.co.za explains that in Nandutu v Minister of Home Affairs in 2019, the Constitutional Court had to deal with the connected relationship between the constitutional right to dignity and family life, on the one hand, and state security and laws, on the other. In that matter, the applicants approached the Concourt to protect their right to dignity and family life by not obliging them to leave South Africa to lodge visa applications, and thus having to leave their wives and children whom they were supporting. The Concourt found the requirement that a foreign spouse should have to leave the country to apply for an immigration permit, to be unconstitutional, because of the impact it could have on the marriage and family life. 

Consequently, in Nandutu it was held that the foreign spouse of a permanent resident and the life partner of a SA citizen, who were in the country on the basis of a general visitor’s visa, were entitled to apply for the issue of a spousal visa whilst in SA and were not compelled to leave and to apply for it from their respective countries of origin.

BMA says, “The same approach may well be followed where one of the parties have to leave the Republic of South Africa as a consequence of the termination of a spousal visa caused by divorce.”

In T.R and Others v Minister of Home Affairs and Others on 7 June 2022, several foreign ex-spouses brought a case to the Western Cape High Court seeking to be allowed to stay in the country as they were contributing to their minor children’s care.

Judge Sher, in describing the impossible situation that faced the applicants, said, “Notionally, they would be able to apply for permanent residence in terms of s 27(g) of the Act, on the basis that they are relatives of their SA citizen children, within the first step of kinship.

“But the immediate difficulty which faces the applicants, even before they were to consider making application for permanent residence on that basis is that, for the same reason, they no longer enjoy temporary residence rights because s 11(6)(a) similarly provides that a spousal visa shall only be valid while the good faith spousal relationship between the parties ‘exists’, and s 43(b) of the Act provides that upon the expiry of their status foreigners are to (‘shall’) depart SA. If they do not, they are considered to be illegal foreigners and unless authorized by the Director-General to remain, pending an application for status become liable to be deported. In this regard it is common cause that the applicants do not qualify for any of the various visas previously referred to, save possibly for visitors visas and relatives visas, neither of which will allow them to work. In addition, following upon the termination of their spousal visas they can no longer legally be employed in SA, as the Act provides that no person shall employ an illegal foreigner or one whose status does not authorize them to be employed.

“The applicants point out that although their spousal relationships may have come to an end, their parental relationships have not, and they continue to share parental responsibilities and rights with their former partners.”

Judge Sher went on to say that the Children’s Act, which enacts the constitutional rights of children, provides that all organs of state in any sphere of government (including all officials, employees and representatives of an organ of state) must respect, protect and promote the rights of children, as referred to in the Act. This includes that a child should not be separated from its parents against its will unless this was in the best interests of the child. The responsibilities of parents, in terms of the Children’s Act, included the duty of care, of maintaining contact with their children and maintaining them.

In the end, the Judge said that as long as their foreign parents entered and were working in the country lawfully at the time of the termination of their spousal visa, they should, if possible, continue to be accommodated in the country so that they can continue to support their children and care for them, both financially and emotionally.

The Judge said the spousal visa had to come to an end when the spousal relationship ended, but other means could be provided for a foreign spouse who was the parent of a South African child citizen or permanent resident and therefore had parental responsibilities which they were actually discharging, to remain in the country, in order to 

1. apply for a fresh status i.e. a visitor’s or relative’s visa which would 

2. allow them to stay and work in the country so they could discharge their parental responsibilities and exercise their rights.

The Judge said that although section 43 says that when their visa expires, a foreigner shall depart, it also says that the Director-General may authorize them to remain in the Republic pending their application for a status. He went on to explain that the applicants will accordingly be protected by the Order he makes, which includes a direction that they are granted leave to submit an application for a status to the Director-General, and that the Director-General should consider granting them authorization to remain, pending the outcome of their applications. 

This Order (or readings-in to the law) will allow a foreign ex-spouse who applies, on expiry of their spousal visa, for a visitor’s or relative’s visa, to continue to live and work in the country to discharge their parental responsibilities. 

So that brings us back to your situation, and if and how the court’s order will affect your husband’s situation, once you are divorced, and his relationship with the eleven-year-old daughter you share, if he is working and contributing to her upkeep.

Perhaps your best bet would be to consult one of the following organisations which have much experience with Home Affairs for help and advice:

• Lawyers for Human Rights

Email: info@lhr.org.za

Musina 015 534 2203

Durban: 031 301 0531

Pretoria: 012 320 2943

Johannesburg: 011 339 1960

Cape Town: 021 424 8561

• Legal Resources Centre

Email:info@lrc.org.za

Johannesburg: 011 836 9831

Cape Town: 021 481 3000.

I have included below the actual Order made by Judge Sher as the details may be helpful to you. 

"The Order:

1.         It is declared that the Immigration Act, 13 of 2002 (‘the Act‘) alternatively sections 10(6), 11(1)(b) and 18(2) thereof, as read together with regulations 9(5) and 9(9) of the Immigration Regulations (‘the Regulations’), 2014 as published under GN R413 in GG 37679 of 22 May 2014 (as amended), is/are inconsistent with the Constitution of the Republic of South Africa, 1996 and invalid to the extent that it /they:

1.1      Require a foreigner who was (a) the holder of a spousal visa in terms of s 11(6) of the Act which is no longer valid by virtue of the termination of the spousal relationship on which it was based, who (b) has parental responsibilities and rights in terms of the Children’s Act 38 of 2005 in respect of a SA citizen or permanent resident child of the aforesaid spousal relationship, which responsibilities and rights they were discharging at the time of the termination of the said spousal visa, to cease working in and to leave South Africa; and

1.2      require such a foreigner to make application for a status, from outside South Africa; and

1.3      do not allow such a foreigner, who may be eligible for a visitor’s visa in terms of s 11 or a relative’s visa in terms of s 18 of the Act to conduct work in South Africa, in order to discharge their aforesaid parental responsibilities and rights in terms of the Children’s Act in respect of a SA citizen or permanent resident child of the aforesaid spousal relationship.

2.         The declaration of invalidity in paragraph 1 is suspended for a period of 24 months from the date of this Order to enable Parliament to remedy the inconsistencies that have resulted in the declaration.

3.         Should Parliament fail to remedy the inconsistencies that have resulted in the aforesaid declaration within the period referred to in the preceding paragraph the readings-in which are to be effected in terms of paragraph 4 of this Order shall become final, save and unless an affected and/or interested party makes application, before the expiry of the aforesaid period, for a further suspension of the aforesaid declaration and/or for such further or alternative relief as may be appropriate.

4.         During the period of suspension, the following is to be read into the regulations and provisions of the Act:

4.1      Regulation 9(9) of the Immigration Regulations is to be read to include, as sub-regulation 9(9)(iv): ‘(iv) is the foreign parent of a SA citizen or permanent resident child of a spousal relationship in respect of which a spousal visa was issued in terms of s 11(6) which is no longer valid by virtue of the termination of the aforesaid spousal relationship, and in respect of which child the foreign parent has parental responsibilities and rights in terms of the Children’s Act 38 of 2005, which they are discharging’;

4.2       Regulation 11(4) of the Immigration Regulations is to be read to include, as sub-regulation 11(4)(d): ‘(d)’ work which a foreigner who was the holder of a spousal visa in terms of s 11(6) of the Act (which visa is no longer valid by virtue of the termination of the spousal relationship on which it was based), is able to demonstrate he/she is required to perform in order to discharge parental responsibilities and rights in terms of the Children’s Act 38 of 2005 in respect of a SA citizen or permanent resident child of the aforesaid spousal relationship, and which responsibilities and rights they were discharging at the time of the termination of the said spousal visa,’

4.3      Section 18(2) of the Act is to be read as follows: ’Save in the case of a foreigner who (i) was formerly the holder of a spousal visa in terms of s 11(6) which is no longer valid because the spousal relationship on which it was based no longer exists, who (ii) is able to demonstrate that such work is required by the foreigner in order to discharge parental responsibilities and rights in terms of the Children’s Act 38 of 2005 in respect of a SA citizen or permanent resident child of the aforesaid spousal relationship, the holder of a relative’s visa may not conduct work.’"

Wishing you the best,
Athalie