When the marriage ends: foreign spouses, divorce and the Rayment judgment

Many foreign nationals live in South Africa because they are married to, or in a life partnership with, a South African citizen or permanent resident. Their visa depends on that relationship. So what happens when the marriage ends? Until recently the answer was harsh: the visa ended with the relationship, the right to work went with it, and the foreign spouse was expected to leave, even if they were raising South African children. In Rayment and Others v Minister of Home Affairs the Constitutional Court changed that for parents.¹ This commentary explains, in plain terms, what the Court said and why it matters.

The position before the judgment

A foreign spouse or life partner usually holds a visitor's visa under section 11(6) of the Immigration Act. The Act says that visa is valid only while the "good faith spousal relationship" exists. Divorce or separation ends it.²

That left a divorced parent with few options. A relative's visa, based on their South African child, did not allow them to work. And the regulations generally required them to leave South Africa and apply for a new visa from abroad. A parent could keep the child and lose the income to support them, or keep the job and lose the right to stay near the child.

The law treated the end of a marriage as the end of a family. For children, it is not.

The people who brought the case

The applicants were foreign parents of South African children whose relationships had ended. Tereza Rayment, a German national, was the main provider for her children. Thierry Gondran, a French national, was solely responsible for his sons in Cape Town. Richard Anderson, a British national, had applied for permanent residence as a spouse before his marriage broke down, which ended his eligibility. Joshua Ogada, a Kenyan national, shared the care of his son equally with his former wife.¹

The Western Cape High Court found in their favour, and the matter went to the Constitutional Court for confirmation.

What the Constitutional Court said

On 4 December 2023 the Court ruled unanimously, in a judgment by Chief Justice Zondo. Its reasoning was simple. Forcing a parent to stop working, or to leave the country, because a marriage has ended limits the dignity of that parent and of the child. It also limits the child's right to have their best interests treated as paramount under section 28 of the Constitution. The Court noted that the rules "may separate a parent from his or her child", and held that the State had not justified that harm.¹

The Court declared parts of sections 10(6), 11(6) and 18(2) of the Act, and regulation 9(9)(a), unconstitutional. It gave Parliament 24 months to fix them and, in the meantime, read new words into the law.

What changed

The new position protects a foreign parent of a South African citizen or permanent resident child who is caring for the child, or shows an intention to do so:

• The visa does not simply die. When the relationship ends, the section 11(6) visa is treated as still valid while the parent applies for a new visa.
• There is a deadline. The new application must be made within three months of the end of the relationship. A later application needs good cause.
• The parent may work. A relative's visa held as the parent of a South African child allows work for its full duration.
• No need to leave. The parent may apply for the new visa from inside South Africa.

The regulations were amended in May 2024 to allow parents of South African children to change status inside the country, and Home Affairs issued Circular 11 of 2024 on the judgment.³ The 24-month period ended on 4 December 2025. Under the Court's order, its wording then became final unless Parliament corrected the law first; reports indicate that it did not.⁴

Who is not covered

The judgment is about children. It does not protect every divorced spouse.

Spouses without a South African child are in the old position. The section 11(6) visa ends with the relationship, and they need a different visa in their own right, such as a work, business or critical skills visa.

Spouses who hold permanent residence should check its date. A permanent residence permit granted as a spouse under section 26(b) lapses if the good faith spousal relationship ends within two years of the permit being issued, unless the relationship ended because the spouse died.⁵ After two years, divorce does not affect it.

Spouses still applying for permanent residence lose the basis of the application if the relationship ends, as Mr Anderson did.

Why it matters

The judgment matters for three reasons. First, it puts children at the centre. A child's relationship with a parent does not end because the parents' marriage does, and the law now recognises that. Second, it reflects how families actually live: separated parents share care, pay maintenance and need to work to do it. Third, it continues a line of cases, from Dawood in 2000 to Nandutu in 2019, in which the Court has held that immigration rules must respect family life and dignity, not only administrative convenience.⁶

It also leaves a gap. A foreign spouse without children, who may have lived in South Africa for years, still loses status when the relationship ends. Whether that is fair is a question the Court was not asked to decide.

If your relationship is ending

• Note the date the relationship ended. The three months run from the end of the relationship, which may be earlier than the final divorce order.
• Apply in time. Lodge the new visa application within three months, and keep the VFS receipt.
• Gather proof of your role as a parent. Birth certificates, a parenting plan or court order, maintenance records and school or medical records.
• Check any permanent residence date. If your spousal permit is less than two years old, take advice before the relationship formally ends.
• If you have no South African child, plan another visa route before your current visa lapses.

Conclusion

Rayment is a short answer to a hard question. When a marriage ends, the State may not use immigration law to end a parent's relationship with a South African child. For parents, that is real protection, provided they act within three months. For spouses without children, the old rules still apply, and early advice remains the best protection.