27 Oct Divorcing Your Partner – Will You Lose Your Visa

A handful of marriages are built on a factor of chasing citizenship and the prospect of relocating to greener pastures. However, not all things are meant to last forever. If you end up divorcing your partner – will you end up losing your residency in South Africa?

You found the love of your life, you proceeded to tie the knot and now you find yourself in a foreign land with divorce papers on the dining room table. You’ve both tried to work things out – but some beautiful things cannot be restored to its former glory. Now, reality will begin to seep in. Signing away on the dotted line – you begin to think about the potential revoking of your current citizenship.

“Subject to section 25 and prescribed requirements, 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 permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;”

Section 26(b) of the immigration Act of 2002 is to be read along with the following excerpt of regulation 23(6):

“A foreigner contemplated in section 26(b) of the Act who has been issued with a permanent residence permit shall, within the last six months of the second year following the issuing of that permit, avail himself or herself for an interview at any office of the Department.”

Once the process of divorce gets kicked into gear, The starting position will stem from section 43(a) of the South African Immigration Act, stating the following:

“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.”

The key Point of this excerpt falls under the last section:

“That status shall expire upon the violation of those terms and conditions.”

In layman’s terms – as a foreign citizen, your visa/permanent residency binding you to accompany your partner in South Africa will lapse on the date that you are no longer in a relationship of good faith – so in other words, from date of separation. This of course is not done automatically, but you and your partner are legally required to report your separation to the Department of Home Affairs, who will then begin the process of cancelling your visa/permanent residency.

For many individuals – this can prove to cause some major issues, especially when children are involved.

The Divorce has not been finalised. Is there anything I can do to retain a status in South Africa?

This is where you are in luck. If you are still legally bound, you as the foreign citizen may change from your spousal Visa to any available alternative. Ensure that this is something you can qualify for to solidify your chances of success.

If you struggle to meet requirements present on any other option available to you – special dispensation may be applied for (which will be overseen by the minister himself.)

This will ensure your success of meeting certain requirements, despite the circumstances you may find yourself in.

If you currently find yourself in the vulnerable position of losing your Visa or residency due to a divorce, contact June Luna Immigration Attorneys today. We can help you make your way towards to calmer waters.