Same-Sex Couples in South African Immigration Law

South African immigration law treats a same-sex partner exactly as it treats an opposite-sex one. There is no separate same-sex visa, because none is needed: the Immigration Act defines a “spouse” as a party to a marriage, including a civil union, or to “a permanent homosexual or heterosexual relationship as prescribed”, and every visa and permit that refers to a spouse applies on those terms.

Couples differ in form. A married couple proves a marriage. An unmarried couple proves a permanent relationship, and that evidence is where most of the work lies.

How the law got here

1. The Constitution. Section 9(3) of the 1996 Constitution lists sexual orientation among the grounds on which the state may not unfairly discriminate.
2. Immigration benefits for partners, 1999. On 2 December 1999, in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (CCT 10/99), the Constitutional Court held that section 25(5) of the old Aliens Control Act unfairly discriminated by extending immigration benefits to spouses but not to same-sex life partners. Rather than strike the section down, the Court read in the words “or partner, in a permanent same-sex life partnership” after “spouse”.
3. Marriage, 2006. In Minister of Home Affairs v Fourie, decided on 1 December 2005, the Court held that excluding same-sex couples from marriage was unconstitutional and gave Parliament a year to fix it. The Civil Union Act 17 of 2006 came into force on 30 November 2006. Couples marrying under it choose whether to call the union a marriage or a civil partnership, and the legal consequences are those of a marriage under the Marriage Act. The Civil Union Amendment Act 8 of 2020 repealed the exemption that let state marriage officers refuse same-sex couples, and the last exemptions lapsed in October 2022.

The Immigration Act has since been aligned with all three. Its definition of “marriage” includes a union under the Marriage Act, the Recognition of Customary Marriages Act and the Civil Union Act, and a marriage concluded under the laws of a foreign country.

Two ways to be a spouse for immigration purposes

Married couples

A same-sex couple married in South Africa, or married abroad under a country’s law, is a married couple for immigration purposes. The evidence is the marriage certificate, supported by proof that the relationship is genuine and continuing, the same standard any married couple meets.

Couples in a permanent relationship

A couple who have not married rely on paragraph (b) of the definition. Regulation 3 of the Immigration Regulations sets out what proves it:

• a notarial agreement, signed by both partners, attesting that the relationship has existed for at least two years before the application and continues to the exclusion of anyone else, and that neither partner is married or in another such relationship;
• a sworn affidavit on the prescribed form confirming the relationship continues;
• proof that any earlier marriage ended, by divorce or death;
• documents showing the financial support the partners give each other and how they share financial and other responsibilities; and
• where two foreigners concluded the relationship abroad, official recognition of it from that country’s authorities.

Home Affairs may interview the partners separately, at the same time, to test the relationship. Two years after the visa is issued, the holder must confirm by affidavit whether the relationship still exists, and anyone holding a visa on this basis must tell the Director-General immediately if it ends. The regulation applies in the same words to heterosexual and same-sex couples.

Which visa follows

The route depends on the South African partner’s status, not on whether the couple is same-sex.

A section 11(6) visa is valid only while the good-faith relationship exists, whatever expiry date is printed on it. A spouse who wants to work, study or run a business applies for that authorisation separately; it does not come with the visa.

Permanent residence after five years

Permanence comes from permanent residence under section 26(b) of the Immigration Act. Home Affairs may issue permanent residence to someone who has been the spouse of a citizen or permanent resident for five years, where it is satisfied that a good-faith spousal relationship exists. Because the Act’s definition of spouse includes a permanent relationship, this applies equally to married and unmarried couples, same-sex or not.

Three rules decide how these applications go:

• The five years is five years of relationship, not five years of living in South Africa. A couple who spent part of the relationship abroad can still qualify.
• The application is due within three months of qualifying. Section 11(6)(c) requires a section 11(6) visa holder to apply for section 26(b) permanent residence within three months of the date on which they qualify.
• It can lapse. Permanent residence under section 26(b) lapses if the good-faith relationship ends within two years of the permit being issued, except where the partner dies.

Once approved, permanent residence also starts the five-year clock towards naturalisation, which our guide to how South African citizenship is acquired and kept explains.

Where to start

Couples usually know whether they are married; what they are less sure of is whether their paperwork proves a relationship of the length and kind the regulation describes. If you are not married, the notarial agreement and the evidence of shared finances are the first things to check, and our Life Partner Visa page describes how we build that file.