One of the question we receive at Intergate Immigration is how the immigration regulations cater for those who are in permanent homosexual relationships.
South Africa’s constitution
In 1996, after decades of apartheid, South Africa received a new constitution. Under this constitution South Africa became the first country in the world to constitutionally prohibit discrimination based on sexual orientation. The new South African Constitution protects people from discrimination on the basis of “race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
The immigration rules for homosexual couples
The court case case cct 10/99, first applicant the National Coalition for Gay and Lesbian equality was heard in 1999. The High Court had declared section 25(5) of the Aliens Control Act of 1991 unconstitutional because it omitted to give persons who were partners in permanent homosexual life partnerships the benefits it extended to “spouses”.
The court ruled:
Section 25(5) of the Aliens Control Act 96 of 1991, by omitting to confer on persons, who are partners in permanent same-sex life partnerships, the benefits it extends to spouses, unfairly discriminates, on the grounds of their sexual orientation and marital status, against partners in such same-sex partnerships who are permanently and lawfully resident in the Republic. Such unfair discrimination limits the equality rights of such partners guaranteed to them by section 9 of the Constitution and their right to dignity under section 10. This limitation is not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom and accordingly does not satisfy the requirements of section 36(1) of the Constitution. This omission in section 25(5) of the Act is therefore inconsistent with the Constitution. It would not be an appropriate remedy to declare the whole of section 25(5) invalid. Instead, it would be appropriate to read in, after the word “spouse” in the section, the words “or partner, in a permanent same-sex life partnership”. The reading in of these words comes into effect from the making of the order in this judgement.
Marriage
In 2006 the common law definition of marriage was changed to include same sex spouses. This was following a case at constitutional court known as Fourie versus Minister of Home Affairs.
The basic guidelines of the Civil Union Act are:
- The couple to be married must be at least 18 years of age
- Immigration benefits are extended to the foreign partners of South Africans
- The laws on degrees of affinity and consanguinity applies
- Married same sex couple get the same medical insurance benefits as other married couples
- Same sex married couples are allowed to adopt children
- The use of artificial insemination is accepted for the couple to be considered legitimate parents
- A South African married gay or lesbian can claim inheritance in case of death of partner provided it is intestate
- Insurance claim by married same sex couples for accidents is recognized
The passing of the same sex law means there are 3 types of marriage laws in South Africa. They are the Recognition of Customary Marriages Act signed in 1998, the Marriage Act signed in 1961, and the Civil Union Act signed in 2006. A person can only file one type of marriage in South Africa.
Summary
The same permit and visa options apply to immigration visas for homosexual as they do hetrosexuals. This includes life partner and spousal visas and permits.
Getting help with your visa or permit application
We welcome the opportunity to consult with you as to your eligibility for a visa /permit and answer any questions you may have with no obligation.
You can take our free one minute assessment here or request a call back for more information. Or simply call us at +27 (0)21 424 2460.
Alternatively you can fill out the below online enquiry form to contact us.
If you are already in South Africa feel free to visit us chat over a coffee.
