Hong Kong Law Reform Commission

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Preface

1. The concept of domicile is of significance in the Hong Kong legal system and plays a significant role in private international law. In the common law world the concept of domicile has traditionally been used as the major connecting factor to determine the personal law of an individual. In the civil law tradition nationality has played that role. Domicile can be distinguished from nationality in that, while the latter connects an individual to a state, the former relates to a legal jurisdiction. It differs, too, from nationality in that while a person can be stateless, or have more than one nationality at the same time, he cannot be without a domicile, and can only have a single domicile at any one time. Domicile does not equate to residence, for it is possible to be domiciled in a place other than one's country of residence.

2. What, then, is the concept of domicile? Domicile has been defined as "the place or country which is considered by law to be a person's permanent home."[1] The central notion of domicile is that of a long-term relationship between person and place. In other words, a person is domiciled in the country where he intends to live permanently or indefinitely.

3. Domicile is what is termed in private international law a "connecting factor": it determines under which system of law and within the jurisdiction of which country's courts certain issues (principally those relating to status and property) are to be determined. The concept of domicile connects a person with the country in which he has his permanent home or in which he intends to live indefinitely. The effect of that connection is that matters which are intimately connected with a person's personal life fall to be determined by the law of the place with which he is most intimately connected (ie the law of his domicile), rather than a place with which he has only tenuous or short-term connections.

4. Despite the significance of the concept of domicile, the rules for determining a person's domicile have repeatedly been criticised as unnecessarily complicated and technical, and as sometimes leading to absurd results. Various law reform bodies in the common law world[2] have critically examined the traditional concept of domicile and recommended, in particular, amending the rules for determining domicile. In a number of countries, including Australia, Canada, Ireland, New Zealand and South Africa,[3] those criticisms have been answered by legislation which amends the rules for determining domicile.

Terms of reference

5. The Secretary for Justice and the Chief Justice consider it appropriate for the Law Reform Commission to review the way in which the law determines a person's domicile and they have referred the topic to the Commission with the following terms of reference:

"To review the law governing the determination of domicile of natural persons and to consider and make recommendations for such reform as may be necessary."

6. On 25 June 2002, the Law Reform Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the Sub-committee are:

Ms Audrey Eu, SC	(Chairman) Senior Counsel
Mr Philip Smart	(Vice-chairman) Associate Professor Department of Law The University of Hong Kong
Ms Mimmie Chan	Solicitor Allen & Overy
Prof Fanny M Cheung	Professor & Chair Department of Psychology Chinese University of Hong Kong
HH Judge Bebe Chu	Family Court
Mr Jat Sew-tong, SC	Senior Counsel
Mr Anson Kan	Solicitor Johnson Stokes & Master
Ms Thelma Kwan	Head of Estate Planning Services Wealth Protection Solutions HSBC Trustee (Hong Kong) Ltd
Ms Jacqueline Leong, SC	Senior Counsel
Mr Billy Ma	Solicitor Hobson & Ma
Mr Byron Leung	(Secretary)

Layout of this Paper

7. This Paper examines the rules for determining a person's domicile in Hong Kong and the anomalies of those rules, and presents a number of recommendations for reform.

8. Chapter 1 discusses the existing rules for determining a person's domicile, and the major areas of law in which the concept of domicile is used as a connecting factor. Chapter 2 highlights the problems of the existing law. Chapter 3 discusses other common connecting factors employed in Hong Kong, and whether domicile should be retained as a general connecting factor. Chapter 4 examines the law in other jurisdictions and discusses some possible options for reform before setting out our preliminary recommendations for the way forward. Chapter 5 summarises our recommendations for easy reference, and sets out their practical effects.

9. We should stress that this is a Consultation Paper, and the recommendations presented here are put forward to facilitate discussion. We welcome views, comments and suggestions on any issues discussed in this Paper. The sub-committee and the Commission will carefully consider those responses in drawing up its final recommendations in due course.

[1] Mason v Mason (1885) EDC 330, at 337. In Whicker v. Hume, 7 H L Cas 124, at 160, 11 E R 50, at 64 (1858), Lord Carnworth observed: "By domicile, we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it."

[2] Such as the Uniform Law Conference in Canada (1961), the Law Reform Commission in Ireland (1983), the Law Commission in England and Scottish Law Commission (1987) and the South African Law Commission (1990).

[3] The Domicile Act 1982, Australia (Commonwealth); the Domicile and Habitual Residence Act 1983, Manitoba; the Domicile and Recognition of Foreign Divorces Act 1986, Ireland; the Domicile Act 1976, New Zealand; and the Domicile Act 1992, South Africa.