What happens to my visa if I, a non-citizen, divorce from my permanent resident spouse?

The long answer

There was a recent case (June 2022) brought to the Western Cape High Court by several foreign ex-spouses wanting to stay in South Africa as they were contributing to their children’s care, even though their spousal visas had lapsed as a result of the divorces.

Judge Sher said that as long as these foreign parents had entered and were working in the country lawfully at the time their spousal visas ended, they should, if possible, continue to be accommodated in the country so that they could 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 of the Immigration Act states that when their visa expires, a foreigner shall depart, it also says that the Director-General of Home Affairs 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.

You could consult one of the following organisations which have a lot of experience in dealing with Home Affairs: 

• Lawyers for Human Rights

Email: info@lhr.org.za

Tel: 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.

Wishing you the best,
Athalie