|
DOMICILE AND FAMILY LAW
The Law of Domicile
in Australia, Canada, Hong
Kong, India, Ireland, Malaysia, New Zealand, Singapore, South Africa
and the United Kingdom
Domicile is a tremendously important connecting factor in most
common law countries, providing a most significant basis for a court
to be authorized to accept jurisdiction in family law cases.
The following
outline of the rules of domicile of adults as applied in various
common law countries is adapted from the April 2005 Report of the
Law Reform Commission of Hong Kong on the Rules for Determining
Domicile.
First, no person can be without
a domicile. It is well established that everyone must have a
domicile.[1] A person
cannot choose to be without a domicile, even though he can choose to
change his domicile. Every independent person must have a domicile,
either of origin or of choice. Every dependent person must also
have a domicile, either that of the person on whom he is dependent
or that otherwise attributed by law.
Secondly, no person can at the
same time for the same purpose have more than one domicile.[2]
However, in a federal or composite state consisting of a number of
different jurisdictions, there may be statutes creating one domicile
for one purpose and another domicile for other purposes. For
example, section 39(3)(b) of the Family Law Act 1975 (Commonwealth)
in Australia creates an Australian domicile (as distinct from a
domicile in one of the various states, such as Queensland) for the
purpose of divorce jurisdiction. Therefore, a person can have two
domiciles in Australia: one for matrimonial causes and another for
other issues. Conversely, in the absence of any equivalent
legislation, a person domiciled in Hong Kong cannot concurrently be
domiciled in the PRC and vice versa.
Thirdly, an existing domicile is
presumed to continue until it is proved that a new domicile has been
acquired.[3] The burden
of proving a change of domicile rests with the person asserting such
a change.[4] The
strength of the presumption differs for different types of domicile,
ranging from domicile of dependency (which is weakest) to domicile
of origin which is "more enduring… hold[s] stronger, and [is] less
easily shaken off".[5]
Fourthly, the courts in a
specific country will apply local law in determining a person's
domicile. The person's nationality or foreign connection may be
irrelevant to that determination. Hence, applying the local law of
domicile, the local courts may determine that a person has acquired
a domicile of choice in another jurisdiction, even though he has not
satisfied the requirements for domicile imposed by the law of that
other jurisdiction. Similarly, where a person has a domicile of
origin in another jurisdiction, the law of domicile of that
jurisdiction is not relevant to the local courts' decision as to
whether he has acquired a local domicile of choice.[6]
In Australia, any person who is
over eighteen years of age or is married has the ability to acquire
an independent domicile.[7]
However, a person suffering from mental incapacity is not capable of
obtaining a domicile of his choice.[8]
At common law, where a person
has left his homeland with the intention of not returning, his
domicile of origin continues until he acquires a domicile of choice.[9]
He can acquire a domicile of choice in another country by being
there lawfully with the intention of remaining there permanently or
indefinitely. The two conditions of physical presence and the
required intention must co-exist. The length of the physical
presence is not determinative. Even though a person's permission to
stay in a country is only for a limited period, he can still obtain
a domicile of choice there if his presence there is lawful when his
intention to stay there indefinitely is formed.[10]
His new domicile once acquired is not lost upon expiry of the
permission to stay,[11]
or even after deportation.[12]
The word "permanent" in
connection with the required intention at common law ("an intention
to reside permanently or indefinitely in a country") at times
imposes a stringent requirement which makes it impossible to obtain
a domicile of choice unless the person in question has abandoned any
intention of eventually returning to his home country. Asprey JA of
the New South Wales Court of Appeal, however, in Hyland v Hyland[13]
put the common law test in a more flexible way:
"In the context of the
principles applicable to a domicile of choice I am of the opinion
that the use of the word 'permanent' means nothing more than Lord
Westbury's phrase 'general and indefinite' which, as I understand
it, produces the result that the person's intention is one which,
when formed, is to remain a resident of the country for a period
then regarded by him as unlimited in time and without having
addressed himself to the question of giving up such residence and
leaving the country of his choice upon the happening of some
particular and definite event in the foreseeable future
notwithstanding that he may entertain in the phraseology which
appears to have been coined by Story (Conflict of Laws, 8th ed p 50)
a floating intention to return at some future period of time to his
native country…"[14]
The distinction is between a
definite intention to leave and a "floating intention". According
to Asprey JA, the required intention is to remain in a country for a
period regarded as unlimited in time and without the intention of
leaving in the foreseeable future, such as on the completion of a
contract of employment.[15]
A hope of returning to one's home country at some unspecified time
in the future, or a willingness to move elsewhere for better
opportunities, will not water down the intention to remain in a
country.[16] A person,
however, who has an intention to go back to his home country on the
happening of a definite future event (though distant and unspecified
in time, such as retirement) will not acquire a new domicile of
choice.[17]
The Domicile Act 1982
(Commonwealth) has no specific provision on the nature of physical
presence required, but it provides for the requisite intention: to
make one's home indefinitely in the country concerned.[18]
The question is whether it has changed the common law test as
defined by Asprey JA in the Hyland case. No authority can be found
in Australia, but a New Zealand decision on a similar provision[19]
suggests that the test formulated by Asprey JA is still applicable.
In this case, despite a residence of thirty-five years in the United
States, it was held that a New Zealander had not acquired a domicile
there since he had at all times a definite intention to go back to
New Zealand upon retirement. This is in line with the common law
test defined by Asprey JA.[20]
At common law, a person can lose
his domicile of choice by leaving the country and by abandoning the
intention of residing there indefinitely. The domicile of choice
will be abandoned once these two elements co-exist. Under the
pre-1982 law, if a person has not acquired a new domicile upon the
abandonment of the old one, his domicile of origin will revive until
he obtains another domicile of choice. Where a person who had a
Tasmanian domicile of origin and a New Zealand domicile of choice
decided to move permanently to England but died in a plane crash on
his way there, his domicile as at the date of death would be
Tasmanian. This is because he had abandoned his New Zealand
domicile of choice but had not yet acquired a new domicile in
England. Hence, his domicile of origin would revive. The post-1982
law expressly abolishes the concept of revival of domicile of
origin, and an existing domicile continues until a different
domicile is acquired.[21]
Applying this to our example, the deceased's domicile of choice in
New Zealand would continue until his actual arrival in England.
In Manitoba, every person has
the ability to acquire an independent domicile provided he is not a
child or mentally incompetent.[22]
His domicile of choice is in the place where he has his principal
home and where he intends to reside.[23]
There is a presumption that a person intends to reside indefinitely
where his principal home is, subject to his contrary intention.[24]
The common law requirements of physical presence and intention are
retained, though in different wording. It is difficult to say how
much the statutory provision has changed the common law and, indeed,
whether it has changed the common law at all.[25]
The common law rule which
results in the revival of the domicile of origin is abolished,[26]
and a person's existing domicile continues until a new one is
obtained.[27] The
effect of this should be the same as that of the equivalent
Australian provision abolishing the concept of revival of domicile
of origin discussed above.
According to the Age of Majority
(Related Provisions) Ordinance (Cap 410), a person attains majority
for most purposes when he is eighteen years of age.[28]
On reaching eighteen years of age, a person remains domiciled in the
country where he was domiciled immediately before reaching the age
of eighteen.[29] If he
abandons that domicile, either he will acquire a domicile of choice
or his dormant domicile of origin will revive.[30]
Cap 410 came into operation on 1 October 1990, and the former age of
majority (twenty-one) still applies to transactions which occurred
prior to that date.
Domicile of choice
Where a person has left his
homeland with the intention of not returning, his domicile of origin
continues until he acquires a domicile of choice.[31]
A person can acquire a domicile of choice by the combination of
residence in a country and the intention of permanently or
indefinitely residing there, but not otherwise. Mere residence
without intention is not enough, and the intention must be
demonstrated by actual residence.
"Residence" appears to involve
little more than mere physical presence, but it does not include the
case where a person is present "casually or as a traveller".[32]
The "residence" must be physical presence in a country "as an
inhabitant of it".[33]
Apart from this, residence may be established without any mental
element.[34] The
length of residence is not by itself conclusive, and is only
important as evidence of animus manendi, the intention of permanent
or indefinite residence.[35]
It is not necessary that the length of residence be long.[36]
Residence for a few days,[37]
or for a period even shorter than that,[38]
may be enough.
The "intention" required is to
reside permanently or for an unlimited time in a particular country.[39]
The residence must be general and indefinite in its future
contemplation, and not just for a limited period or particular
purpose.[40] The
intention must be directed exclusively towards one country.[41]
The intention need not be irrevocable in nature,[42]
nor is it necessary that it be for the purpose of acquiring a
domicile.[43] It also
suffices if the intention is negative in form: residing in a country
without any intention of leaving it for one's former country of
domicile or any other country.[44]
A possible move to another country which is dependent on a
contingency may have different consequences according to the nature
of the contingency. If it is unlikely to occur, such as making a
fortune,[45] this would
not be sufficient to detract from the individual's intention of
permanent or indefinite residence in the country where he is
residing. However, if the contingency is clearly foreseen and
reasonably anticipated, such as the termination of a contract of
employment,[46] this
may prevent him from establishing the requisite intention to settle
in the country where he is residing.
Any fact which is evidence of a
person's residence, or of his intention to reside permanently or
indefinitely in a country, must be considered in deciding whether he
has acquired a domicile of choice in that country.[47]
No fact can be regarded as a definite criterion of the existence of
the required intention. A fact may be considered as relevant in one
case, but can be regarded as irrelevant in another.[48]
Abandonment of a domicile of choice
A domicile of choice can be
abandoned by ceasing both to reside and to intend to reside in that
country permanently or indefinitely, and not otherwise.[49]
Giving up residence[50]
or the intention to reside[51]
alone will not abandon a domicile of choice. As far as intention is
concerned, it is sufficient to prove the absence of an intention to
continue to reside and there is no need to prove a positive
intention not to return.[52]
However, a mere dissatisfaction with the country of the domicile of
choice is not sufficient.[53]
Residence can simply be given up, and not necessarily only by
arriving in another country.[54]
Revival of domicile of origin
On abandoning his domicile of
dependency or his domicile of choice, a person may acquire a new
domicile of choice. Alternatively, he may simply abandon his
domicile of dependency or his domicile of choice without acquiring a
home in another country. In this case, his domicile of origin
revives,[55]
irrespective of where he is or what his plans are for the future.
Domicile of dependency of married women
For the purpose of the law of
domicile, a married woman is a dependent person. Accordingly, she
cannot acquire a domicile of choice[56]
by her own actions, and is dependent upon her husband. If she is a
minor, her dependence on her husband will prevail over her
dependence on her father. In other words, a married woman's
domicile is the same as, and changes with her husband's domicile.
This rule applies even where the spouses live apart in different
countries,[57] whether
or not this is according to a formal separation agreement.[58]
The rule also applies where a wife has obtained a decree of judicial
separation.[59] Where
a marriage is void from the beginning, a woman remains capable of
acquiring a domicile of her choice.[60]
However, if a marriage is valid or subsisting initially (voidable),
a woman shares her husband's domicile until it is annulled.[61]
On ceasing to be dependent, a
person continues to be domiciled in the country of his or her last
domicile of dependency. In the case of a married woman, she will
retain her existing domicile of dependency as a domicile of choice,
even after she acquires the legal ability to change it. A married
woman's dependency ends, for instance, on her husband's death or the
granting of a decree of divorce, but she will continue to be
domiciled in the country of her last domicile of dependency until
she acquires a different domicile of choice. Such a change can be
the result of acts done during dependency. Hence, a married woman
who is settled in a country other than that of her husband's
domicile during her dependency can acquire a new domicile in that
country as soon as her dependency ends.[62]
In Hong Kong, a married woman
can have her own independent domicile for certain limited purposes.
Section 11C of the Matrimonial Causes Ordinance (Cap 179) provides
that a married woman's domicile shall "be ascertained by reference
to the same factors as in the case of any other individual capable
of having an independent domicile", instead of merely following her
husband's. However, this provision applies only for the purposes of
Part II of Cap 179 (ie the jurisdiction of court in respect of
divorce, nullity, judicial separation, etc). Generally speaking, a
married woman's domicile still follows her husband's.
Domicile of dependency of the mentally
incapacitated[63]
Although different jurisdictions
discussed in Chapter 4 may use different terminologies, we are
essentially referring to the same type of persons, ie those who are
unable to exercise their will because of their mental condition.
Not every person who suffers from any of the recognised types of
mental incapacity will be treated as a "dependent person". It is a
question of fact as to whether or not a mentally incapacitated
person is an independent person and can therefore change his
domicile.[64] The
question is whether the person has the ability to form the necessary
intention to make his home in a country permanently or
indefinitely. It does not seem appropriate to link the question of
capacity for the purposes of the law of domicile to the use of
compulsory detention or guardianship.[65]
The general rule is that a
mentally incapacitated person who is regarded as a dependent person
for the purpose of the law of domicile cannot acquire a domicile of
choice by his own actions, but retains the domicile which he had
when he was first legally regarded as mentally incapacitated for so
long as he remains in that condition.[66]
The rationale is that acquisition and abandonment of a domicile of
choice require the exercise of will, and a mentally incapacitated
person may be "unable to exercise any will".[67]
There is, however, an exception
to this general rule. The domicile of a person who is born mentally
incapacitated, or becomes mentally incapacitated while he is a
dependent child, is determined, while he remains mentally
incapacitated, as if he continued to be a dependent child.[68]
Burden and standard of proof
The burden of proving a change
of domicile rests with the person alleging such a change. A
domicile of origin is more tenacious and it is harder to prove that
a person has abandoned his domicile of origin than his domicile of
choice.[69] Where the
change is from a domicile of origin to a domicile of choice, the
older case law indicates that the standard of proof is more onerous
than the balance of probabilities[70]
applied in other civil cases, and the elements of "residence" and
"intention" must be shown with "perfect clearness and satisfaction"[71]
or "beyond a mere balance of probabilities".[72]
More recent cases,[73]
however, prefer the balance of probabilities as the standard of
proof. The position appears to be uncertain.
In India, a person's domicile of
origin prevails until he acquires a new domicile.[74]
If a person is not insane,[75]
on reaching eighteen years of age[76]
he may acquire a domicile of choice in a country by fulfilling two
conditions: residence in the country concerned and intention to live
there permanently. The co-existence of residence and intention is
necessary for obtaining a domicile of choice, but intention can
precede residence, or it can be formed after years of residence.
Section 10 of the Indian
Succession Act 1925 provides that a person acquires a new domicile
by taking up his fixed habitation in a country which is not his
domicile of origin. It was held by the Supreme Court of India in
Central Bank of India v Ram Narayan[77]
that even though the defendant had the intention to move to India,
he was still domiciled in Pakistan before he actually lived in
India. The period of residence need not be long, and brief
residence will not necessarily negative the possibility of acquiring
a domicile.
The required intention is to
reside in a country permanently or for an unlimited time. The
intention must be fixed but not fickle, and must also be directed
towards one particular country. A person's intention can be
gathered from all the events and circumstances of his life.[78]
It is the cumulative effect of all the facts which indicates his
intention, and no one single fact is determinative. The intention
to reside permanently or for an unlimited time in a country must be
made voluntarily. A person is not deemed to have taken up his fixed
habitation in India merely because of residing there in the civil,
military, naval or air force service or in the exercise of any
profession or calling.[79]
Where a person stops residing in
the country of the domicile of choice and has no intention to reside
there indefinitely, he abandons his domicile of choice. Mere
intention to abandon, or mere residence in another country, will not
suffice. The concept of revival of domicile of origin does not
apply in India since a person's domicile continues until he acquires
another one or his former domicile resumes.[80]
On reaching the age of majority,
a person can obtain a domicile of his choice in Ireland provided
that he is not mentally incapable. The Age of Majority Act 1985[81]
changed the age of majority from twenty-one to eighteen, or to the
time of marriage where that takes place below the age of eighteen.
In Ireland, the acquisition and
abandonment of a domicile of choice are still governed by the common
law. In order to acquire a domicile of choice, a person is required
to satisfy two conditions: residence and intention. Casual presence
in a country (for example, as a traveller) is not enough, but the
length of the residence is immaterial. The required intention is
the intention of remaining in a country permanently or
indefinitely. The words "permanent" and "indefinite" have been used
interchangeably in a number of decisions.[82]
Walker C of the Irish Court of Appeal observed that it was obvious
that, as the word "indefinite" had no fixed legal meaning, every
case had to depend on its own special facts.[83]
Sir P O'Brien CJ in the same case quoted with approval and applied
the following test formulated by Lord Westbury in the English case
of Udny v Udny:[84]
"Domicil of choice is a
conclusion or inference which the law derives from the fact of a
man fixing voluntarily his sole or chief residence in a
particular place, with an intention of continuing to reside
there for an unlimited time. This is a description of the
circumstances which create or constitute a domicil, and not a
definition of the term. There must be a residence, freely
chosen, and not prescribed or dictated by any external
necessity, such as the duties of office, the demands of
creditors, or the relief from illness; and it might be a
residence fixed, not for a particular purpose, but general and
indefinite in its future contemplation. It is true that
residence, originally temporary, or intended for a limited
period, may afterwards become general and unlimited; and in such
a case, so soon as the change of purpose, or animus manendi, can
be inferred, the fact of domicil is established."
Sir P O'Brien CJ commented:
"This is the language of
Lord Westbury in what appears to me to be the greatest, the most
luminous, and, though not long, the most comprehensive judgment
that is to be found in our English law books upon the law of
domicil. It has been adopted as laying down the true test by
which domicil has been determined in all subsequent cases, …".[85]
To obtain an independent
domicile, a person's residence in a country must co-exist with the
required intention, but it does not matter which comes first. An
emigrant may have the required intention before leaving for the new
country; a person fleeing from persecution may form the required
intention years later.[86]
Any person can abandon his
domicile of choice by ceasing to reside[87]
in the country where he is domiciled and by ceasing to intend to
reside there permanently or indefinitely. He may prove this[88]
by, for instance, establishing the acquisition of another domicile
of choice. He may, however, abandon his existing domicile of choice
without obtaining another one.[89]
In this case, his domicile of origin will then revive and apply
automatically until he acquires a new domicile. Budd J summarised
the position well:
"A person abandons a domicil of
choice in a country by ceasing to reside there and by ceasing to
intend to reside there permanently or indefinitely and not
otherwise. On abandoning a domicil of choice, a person either
acquires a new domicil of choice or resumes his domicil of origin."[90]
In Malaysia, any person being
sui juris (not an infant or a mentally incapable person) has the
ability to acquire a domicile of choice. The age of majority is
eighteen years.[91] It
is still the common law which governs the acquisition and
abandonment of domicile of choice in Malaysia. A person can obtain
his domicile of choice by establishing his chief residence in the
country in which he wishes to be domiciled, and by having the
intention of residing there permanently or indefinitely. The
intention need not be directed to the acquisition of domicile,[92]
but an individual must have a definite and final intention of
changing the existing domicile.[93]
No single fact is ever decisive or too trivial.[94]
Each trivial fact of a person's life is relevant, such as membership
of social clubs.[95]
Continued residence is not
required to retain a newly acquired domicile of choice. In other
words, a person will not lose his domicile of choice merely because
he is frequently absent from the country of domicile. He can,
however, abandon his domicile of choice by ceasing to reside in the
country concerned and by ceasing to intend to reside there
permanently or indefinitely. Lord Hatherley, the Lord Chancellor,
stated in Udny v Udny:[96]
"It seems reasonable to say that
if the choice of new abode and actual settlement there constitute a
change of the original domicile, then the exact converse of such a
procedure, viz, the intention to abandon the new domicile, and an
actual abandonment of it, ought to be equally effective to destroy
the new domicile. That which may be acquired may surely be
abandoned…".
Upon abandoning his domicile of
choice, a person either acquires a new domicile of choice or his
domicile of origin revives.[97]
A person becomes capable of
acquiring an independent domicile on reaching sixteen years of age
or on marrying at an earlier age.[98]
This is subject to the common law rule that the mentally incapable
cannot acquire an independent domicile.[99]
Once a person becomes capable of obtaining an independent domicile,
he continues to be so capable.[100]
The domicile a person has immediately before becoming capable of
obtaining an independent domicile of choice continues until he in
fact acquires a new domicile under the Act, and will then cease.[101]
He acquires a new domicile in a country at a particular time if,
immediately before that time, he:
(a) is not domiciled in
that country;
(b) is capable of
obtaining an independent domicile;
(c) is in that country;
and
(d) intends to live there
indefinitely.[102]
In the absence of an intention
to live in the country concerned indefinitely, mere long residence
there will not suffice.[103]
The domicile acquired in the above manner continues until another
domicile is acquired in the same manner.[104]
The common law doctrine of revival of domicile of origin is
abolished.[105]
The law governing a person's
domicile of choice in Singapore is the same as that in Malaysia.[106]
The difference is that the age of majority in Singapore is the
common law age of twenty-one years.[107]
In all other respects, the discussion above on Malaysia also applies
to Singapore.
Any person who is of or over the
age of eighteen years, or who is under that age but otherwise by law
has the status of a major, has the ability to acquire a domicile of
choice, regardless of the sex or marital status of that person.[108]
However, this does not apply to a person who does not have the
mental capacity to make a rational choice.[109]
In order to obtain a domicile of choice in a place, a person needs
to be lawfully present there and to have the intention to settle
there for an indefinite period.[110]
A person's existing domicile
continues until he acquires another by his own choice or by
operation of law.[111]
The concept of revival of a person's domicile of origin no longer
applies.[112]
In England and Wales and
Northern Ireland, any mentally capable person becomes capable of
acquiring an independent domicile on attaining the age of sixteen or
on marrying under that age.[113]
He remains domiciled in the country where he was domiciled
immediately before either event until, as a matter of fact, he
acquires a new domicile. If he abandons his existing domicile
without acquiring a new one, his domicile of origin will revive.
The position is more or less the same in Scotland, with the
difference that marrying under sixteen years of age is irrelevant to
the legal capacity in respect of domicile there.[114]
Once able to acquire an
independent domicile, a person can acquire a domicile of choice in a
country by fulfilling the requirements as to residence and intention
of permanently or indefinitely residing there.[115]
As in Hong Kong, "residence" involves no more than mere physical
presence, and the "intention" must be general and indefinite in its
future contemplation, not just for a limited period or particular
purpose.[116] A
person can abandon his domicile of choice by ceasing to reside in
that country and no longer intending to reside there permanently or
indefinitely.[117]
On abandoning his domicile of choice, he may acquire another
domicile of choice. Otherwise, his domicile of origin will revive.[118]
"Mental incapacity" (精神上無行為能力)
is widely defined in section 2 of the Mental Health
Ordinance (Cap 136): meaning "(a)
mental disorder; or (b) mental handicap, and "mentally
incapacitated" (精神上無行為能力)
shall be construed accordingly."
"Mental disorder" (精神紊亂)
means- "a) mental illness; (b) a
state of arrested or incomplete development of mind which
amounts to a significant impairment of intelligence and
social functioning which is associated with abnormally
aggressive or seriously irresponsible conduct on the part of
the person concerned; c) psychopathic disorder; or (d) any
other disorder or disability of mind which does not amount
to mental handicap, and "mentally disordered" (精神紊亂)
shall be construed accordingly".
"Mental handicap" (弱智)
means "sub-average general intellectual functioning with
deficiencies in adaptive behaviour, and "mentally
handicapped" shall be construed accordingly".
| 
