# A slightly complex question =D



## jamesjones (Oct 30, 2013)

So I am studying on a study visa, my father is married to a South African women. They have been married 3 years. My plan was to wait for them to be married 5 years, he applies for permanent residency after 5 years, then once he becomes a permanent resident (maybe 12 months for the application) I apply for it, through being a daughter to him. BUT now i am thinking of getting married to a South Africa man, which under the new legislation wouldn't entitle me to a spouse visa i know, till 2 years of marriage. My question is, that if I get married and after 2 years apply for a spousal visa as well as am endorsement, can I still apply for permanent residence once my father has it? My ultimate aim is to be able to work in SA as soon as possible without having to go through the hoops of a work visa. I am concerned that my status will change from being the daughter of someone with a relative with permanent residence, to the spouse of a South African, and then hope affairs tells me i can only apply through my spouse once 5 years are up. I hope some of this makes sense?


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## LegalMan (Dec 26, 2012)

The basic answer is that you can apply for any permit that you qualify for. So if at a certain point in time your dad gets his PR, and you are at that moment on an (insert anything here) permit, then you can apply for PR on the basis of your father having PR.

Make sense?


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## jamesjones (Oct 30, 2013)

Perfectly! So i could be 2 years into a spousal visa, then apply for permanent residence via my father being a PR, instead of waiting the 3 remaining years till I qualify? =)


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## LegalMan (Dec 26, 2012)

Yes, because being eligible for PR under your father's PR still applies regardless of anything else.


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## Spiggles (Mar 19, 2014)

Hi jamesjones,

My understanding for the new immigration legislation is the 2 years rule is only for a life partner and if you are married, you immediately qualify for a spouse visa- temporary residence.
So I think if you get married to South African, you don't need to wait for 2 years of marriage to apply for a spouse visa?


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## LegalMan (Dec 26, 2012)

As the letter of the regulations stands, you do have to prove 2 years as a spouse, which goes against the constitution of SA. So, expect litigation against Home Affairs and changes later on.


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## jamesjones (Oct 30, 2013)

But either way, even if you need to prove your relationship has been 2 years before you receive a life partner/spouse visa or not, you still are required to be in a life partnership or marriage for 5 years to qualify for permanent residence, is that correct? Regardless of the fact i'll apply through my father. =)


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## LegalMan (Dec 26, 2012)

Yes, correct.


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## jamesjones (Oct 30, 2013)

Last thing that i can think of for now then haha, what about if you could prove you were in a relationship for 2 years prior to marriage, then were married for 3 years. Could you apply for PR? =)


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## Spiggles (Mar 19, 2014)

Hi LegalMan,

I didn't know that was the case for married couples as well
Does that mean you have to be married for 2 years to qualify for spouse visa, or 2 years together as a life partner prior to marriage also qualifies for spouse visa?


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## LegalMan (Dec 26, 2012)

@Spiggles - as it currently stands, yes.

@jamesjones - The 2 + 3 years option should work, yes. You really must put together a proper case and pack of documents for this. Also, the wording is key - it is not simply a "relationship", it is your LIFE partner (i.e. like a spouse). The Life Partner Visa option was started to cover things like homosexual marriages.


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## Spiggles (Mar 19, 2014)

Hi LegalMan,

So does that mean - i.e. a person who is currently on a life partner visa (been together with South African for over 2 years) can apply for a Spouse visa even if they are married for a month only?


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## LegalMan (Dec 26, 2012)

If you are on ANY type of Relative's Visa and you marry, you *should* change to a Spousal Visa (another type of Relative's Visa). But you *must* do this if you are a Life Partner and then marry.

People seem to think of a Life Partnership as a form of girlfriend and boyfriend, but it is not that. It means you are promising to stay together forever, just like a marriage, but without signing the papers.


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## LegalMan (Dec 26, 2012)

Life Partner = like a marriage but without signing forms. You commit to living together forever. Minimum of 2 years to be eligible for a Relative's (Life Partner type) Visa (the word "permit" is only for PR now).

Spouse = a marriage where you sign forms. You commit to living together forever. Minimum of 2 years to be eligible for a Relative's (Spousal type) Visa.

As mentioned to tell SA citizens who are married for less than 2 years that they cannot bring their spouses with is unconstitutional and there will definitely be litigation against Home Affairs for this.


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## Spiggles (Mar 19, 2014)

Hi LegalMan,

Like many others on this forum, we have come to rely on your advice, but I still require some clarity, as the below links and your current information are confusing.

http://www.expatforum.com/expats/south-africa-expat-forum-expats-living-south-africa/330209-very-important-new-changes-south-african-immigration-law-2.html

http://www.expatforum.com/expats/south-africa-expat-forum-expats-living-south-africa/384058-more-confusion.html


You are now advising that Spousal Visas(for married couple) have indeed changed to proving 2 years of co-habitation- I thought the draft legislation only affected on Life-Partners.
Was this change not drafted, but DHA went ahead and changed it?



Also, regarding change of status from Relative(Life partner) to Relative(Spouse),

http://www.expatforum.com/expats/south-africa-expat-forum-expats-living-south-africa/376937-marriage-life-partner-permit.html

http://www.expatforum.com/expats/south-africa-expat-forum-expats-living-south-africa/389482-marriage-info-experts-needed.html

Your current advice is that one should change to a Spousal Visa once married, if one is currently on TR life partner visa.

Can you clarify?

Thanks again for all your efforts.


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## Spiggles (Mar 19, 2014)

Spiggles said:


> You are now advising that Spousal Visas(for married couple) have indeed changed to proving 2 years of co-habitation- I thought the draft legislation only affected on Life-Partners.
> Was this change not drafted, but DHA went ahead and changed it?



Sorry to clarify- I meant not 2 years of co-habitation, its 2 years of *marriage* for Spousal visa.


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## LegalMan (Dec 26, 2012)

*Question 1*
Yes, the regulations have finally been signed and published in the government gazette and I can confirm that you must prove 2 years of marriage. Of course this is not constitutional and court cases will ensue, but it is still present for now.

*Question 2*
If you marry, yes, you do have to change to a Spousal Visa, but it is not a change of status.


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## Spiggles (Mar 19, 2014)

Hi LegalMan,

Thank you very much for your answers.

How can one change to a Spousal visa from Life Partner visa then, if you have to prove 2 years of marriage before you can qualify for a Spousal visa?

I had a conversation with a gentleman from your offices as well as a DHA official on this matter, and was told that we can stay on Life Partner Visa without changing anything until time for renewal, then apply for Spousal visa.


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## LegalMan (Dec 26, 2012)

From our offices?

That sounds correct!


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