New Beginnings After Divorce: What Happens to a Spousal Visa When the Relationship Ends?

Divorce can mark the beginning of a new chapter, but for a foreign national living in South Africa on the basis of a spousal relationship, it can also raise important immigration questions.

What happens to your immigration status when the relationship that formed the basis of your visa comes to an end? Does divorce automatically mean that you must leave South Africa? Can you apply for another type of visa?

The answers depend on your immigration status and individual circumstances.

A spousal visa is connected to the relationship

A spousal or relationship-based visa is granted on the basis of a qualifying relationship. This means that the continued existence of that relationship can be relevant to the person’s immigration status.

South African immigration regulations provide that where a visa or permanent residence permit has been granted on the basis of a spousal relationship, the Department of Home Affairs may need to be informed when that relationship ceases to exist. The applicable rules can differ depending on the type of status held.

This is why divorce should not be treated as only a family-law matter. It may also have immigration consequences.

Does divorce automatically cancel the visa?

Not necessarily in every situation.

The effect of divorce depends on the type of immigration status the foreign national holds and the legal basis on which that status was granted.

For example, information published by the South African High Commission states that a relative’s visa issued to a spouse lapses upon the dissolution of the spousal relationship. However, permanent residence has its own rules and should be considered separately.

This means that a person should first establish exactly what immigration status they hold before assuming what divorce means for their right to remain in South Africa.

What if the person wants to remain in South Africa?

Divorce does not necessarily mean that a foreign national has no other immigration options.

Depending on their circumstances, a person may potentially qualify for another visa or immigration pathway. This could depend on factors such as employment, qualifications, family relationships, studies or other circumstances recognised under South African immigration law.

The important point is that a person should not wait until their existing status has expired before investigating their options.

Permanent residence is different

Permanent residence should not automatically be treated in the same way as a temporary spousal visa.

Under section 26 of the Immigration Act, a foreign national who has been the spouse of a South African citizen or permanent resident for five years may qualify for direct permanent residence, subject to the applicable requirements and the existence of a good-faith spousal relationship. The Act also provides that permanent residence granted on this basis can lapse if the good-faith relationship ends within two years after the permanent residence permit was issued, except in the case of death.

This makes the timing and basis of a person’s permanent residence particularly important when considering the immigration consequences of a divorce.

Keep your documents up to date

If your relationship has ended, it is important to keep your immigration records and personal information accurate.

Documents that may become relevant include:

* Your valid passport

* Your current visa or permanent residence documentation

* Your marriage certificate

* The final divorce decree

* Relevant court orders concerning children, custody or maintenance

* Documents supporting any new immigration application

South African immigration regulations specifically refer to divorce decrees and relevant court orders as documents that may be required in immigration applications. (Department of Home Affairs.

Do not wait until your visa expires

One of the most important steps after a divorce is to establish what the change means for your current immigration status.

If your status was based on your relationship with a South African citizen or permanent resident, continuing to rely on that status without checking the applicable requirements could create unnecessary complications.

Instead, consider obtaining immigration advice as soon as possible and determine whether you need to apply for a different visa or status.

A new chapter may require a new immigration pathway

Divorce may bring significant changes to a person’s personal circumstances, but it does not mean that their life in South Africa necessarily has to end.

The appropriate immigration pathway will depend on the individual’s circumstances and the requirements of South African immigration law.

Understanding your current status, acting before important documents expire and obtaining advice on available options can help you approach the next chapter with greater certainty.

If you are a foreign national whose marriage or spousal relationship has ended and you are unsure about your immigration status, obtaining professional immigration advice can help you understand your position and the options available to you.