|
Hong Kong Law Reform Commission |
1.4 The concept of domicile is used in various areas of law, both at
common law and by statute, to determine what system of law should govern a
person's civil status and certain aspects of the administration of his property.
The major areas are as follows:
(a) Legal capacity to marry
Legal capacity to marry is governed by the law of each party's antenuptial domicile.[5] A marriage is valid in respect of legal capacity if each of the parties has capacity to marry under the law of his or her antenuptial domicile.
(b) Succession to an intestate's movables
Succession to an intestate's movables, wherever situated, is governed by the law of his domicile at the date of his death.[6] By contrast, all questions of succession to an intestate's immovables are governed by the lex situs (ie the law of the place where the land is situated).[7]
(c) Personal capacity to make a will
A testator's personal capacity to make a will of movables is governed by the law of his domicile.[8] Personal capacity is determined by criteria which relate to a person himself, rather than his property. Those criteria, according to which domiciliary law applies, may include his physical or mental state, or his age or marital status.
(d) Formal validity of a will
A will is treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator's death, the testator was domiciled or had his habitual residence, or was a national.[9]
(e) Jurisdiction of court in proceedings for divorce, etc
The court has jurisdiction in proceedings for divorce and nullity if either party to the marriage was domiciled at the date of the petition or habitually resident for a period of three years before that date, in Hong Kong.[10] The court has jurisdiction in proceedings for judicial separation if either party to the marriage was domiciled at the date of the petition in Hong Kong.[11]
(f) Jurisdiction of court in proceedings for presumption of death and dissolution of marriage
The court has jurisdiction in proceedings for presumption of death and dissolution of marriage if a petitioner was domiciled at the date of the petition or habitually resident for a period of three years before that date, in Hong Kong.[12]
(g) Declarations of legitimacy, etc
A person may, if he is domiciled in Hong Kong, apply by petition to the court for a decree declaring that he is a legitimate child of his parents; or that the marriage of his parents or of his grand-parents was a valid marriage; or that his own marriage was a valid one.[13]
(h) Recognition of overseas divorces or legal separations
An overseas divorce or legal separation will be recognised in Hong Kong if, at the time of the institution of the proceedings in the country concerned, either spouse was domiciled in, habitually resident in, or a national of, that country.[14]
(i) Legitimation by subsequent marriage of parents
If the father of an illegitimate child is domiciled in Hong Kong at the date of his subsequent marriage with the mother of the child, the child will be legitimated.[15]
(j) Declaration of a person's status
If a person is domiciled or habitually resident in Hong Kong, he may apply to the court for a declaration that (1) a person named in his application is or was his parent; (2) he is a legitimate child of his parents; or (3) he has become a legitimated person.[16]
(k) Service of process out of the jurisdiction
Service of a writ out of the jurisdiction is permissible in Hong Kong if relief is sought against a person domiciled or ordinarily resident within the jurisdiction, or the claim is made for the administration of the estate of a person who died domiciled within the jurisdiction.[17]
(l) Direct application of Chinese law and custom as Hong Kong domestic law
The direct application of Chinese law and custom as Hong Kong domestic law is confined to Chinese persons domiciled in Hong Kong. Hong Kong law does not treat Chinese law and custom as the personal law of all ethnic Chinese, regardless of their domicile. Merely being an ethnic Chinese or a Chinese inhabitant of Hong Kong does not suffice.[18]
1.5 Before examining the rules for determining a person's domicile
in Hong Kong, it may be helpful to set out some of the general rules in respect
of domicile.
1.6 First, no person can be without a domicile. It is well
established that everyone must have a
domicile.[19] 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.
1.7
Secondly, no person can at the same time for the same purpose have more than
one domicile.[20] 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, there is no PRC domicile in Hong
Kong.
1.8 Thirdly, an existing domicile is presumed to continue until it
is proved that a new domicile has been
acquired.[21] The burden of proving
a change of domicile rests with the person asserting such a
change.[22] 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".[23]
1.9 Fourthly,
the courts in Hong Kong will apply Hong Kong law in determining a person's
domicile. The person's nationality or foreign connection may be irrelevant to
that determination. Hence, applying the Hong Kong law of domicile, the Hong
Kong 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 Hong Kong courts' decision as to
whether he has acquired a Hong Kong domicile of
choice.[24]
1.10 The existing rules for determining a person's domicile can best
be outlined by beginning with the domicile of a new born baby, followed by that
of a child and then an adult. We will also discuss the domicile of some special
cases, such as married women and the mentally incapacitated. For the purposes
of this discussion, when we refer to "country" we mean a "law district" or
distinct jurisdiction (ie a "territory subject under one sovereign to one body
of law"[25]), unless the context
requires otherwise.
1.11 By the operation of law, every person receives at birth a
domicile of origin which depends on the domicile of the appropriate parent at
the time of his birth, but not on where he was born or where the parents
live.[26] A domicile of origin is
determined in the following
manners:[27]
(a) a legitimate child born during the lifetime of his father has a domicile of origin in the country of his father's domicile at the time of his birth;[28]
(b) a legitimate child born after his father's death,[29] or an illegitimate child, has a domicile of origin in the country of his mother's domicile at the time of his birth;[30]
(c) a foundling has a domicile of origin in the country where he was found.[31]
1.12 The
domicile of a legitimate child born after the divorce of his parents is not
entirely certain. It has been suggested that he should have his mother's
domicile at the time of his
birth.[32] Where the parents are
not divorced but merely living apart at the time of the child's birth, the
domicile of origin of the child will be that of his
father.[33]
1.13 As a
result of adoption,[34] legitimation
or a change in the parents' domicile, a child's domicile may be changed. In the
case of legitimation or a change in the parents' domicile, the child's new
domicile is a domicile of dependency but not a domicile of
origin.[35] The significance is
that, as discussed later in this chapter, a domicile of origin can revive at any
time during the child's life while a domicile of dependency
cannot.
1.14 This potential for revival of the domicile of origin is one
of its distinctive features. Domicile of origin is a creature of law. It
remains with a child for his entire life, even when he has grown up and acquired
a domicile of choice. At that time, his domicile of origin remains in abeyance,
but will revive immediately when he relinquishes his domicile of choice without
acquiring a new domicile of
choice.[36]
1.15 A dependent person's domicile is generally the same as, and
changes with, the domicile of the person on whom he is, in respect of his
domicile, legally dependent. For the purpose of the law of domicile, children
are regarded as dependent persons. Other dependent persons are married women
and mentally incapacitated
persons.[37] A dependent person
cannot acquire a domicile of choice by his own act.
1.16 A domicile
of dependency of a child under
eighteen[38] is determined as
follows:
(a) a legitimate child's domicile is, during the lifetime of his father, the same as, and changes with, his father's domicile;[39]
(b) the domicile of an illegitimate child and of a child whose father is dead is the same as, and changes generally with,[40] his mother's domicile;[41]
(c) a legitimated child's domicile is, from the time at which the legitimation takes effect, during the lifetime of his father, the same as, and changes with, his father's domicile if the legitimation is due to the marriage of the child's parents;[42] before the legitimation or after the father's death, the child's domicile depends on his mother's as mentioned in (b) above;
(d) the domicile of a legitimate or legitimated child without living parents, or of an illegitimate child without a living mother (though with a living father) probably cannot be changed, and it is doubtful whether the domicile of a child without living parents can be changed by his guardian.[43]
1.17 If
the mother of an illegitimate child or of a fatherless legitimate child changes
her domicile, she may also choose to change her child's domicile. It was held
in Re Beaumont[44] that the
remarriage of a widow, which at that time led to her getting a new domicile of
dependence, did not of itself affect the domicile of her children:
"The change in the domicile of an infant which ... may follow from a change of domicile on the part of the mother, is not to be regarded as a necessary consequence of a change of the mother's domicile, but as the result of the exercise by her of a power vested in her for the welfare of the infants, which, in their interest, she may abstain from exercising, even when she changes her own domicile."[45]
Where
a mother of an illegitimate child or of a fatherless legitimate child acquires a
new domicile of choice but leaves her child in the country of her previous
domicile, she can be regarded as abstaining from exercising her power of
changing her child's
domicile.[46]
1.18 No
authority can be found concerning the position of adopted children. Section 13
of the Adoption Ordinance (Cap 290) provides for the effect of adoption orders.
When an adoption order is made, certain rights, duties and obligations relating
to the child pass from the natural parents to the adoptive parents. These
various rights and duties are set out in section
13.[47] It is patent from its
wording that these rights and duties are not all embracing, but are limited to
those relating to the future custody, maintenance and education of the child
(including all rights to appoint a guardian to consent or give notice of dissent
to marriage). The Court of Appeal unanimously held in Xie Xiaoyi &
others v Director of
Immigration[48] that section 13
was limited in scope and did not treat an adopted child as a child born of the
marriage of the adoptive parents:
"In summary, therefore, the provisions of the Adoption Ordinance are limited. They do not extend to a blanket treatment in law of the adopted child as if it had been born a child of the marriage of the adoptive parents. In this respect, it would seem that the law of adoption in Hong Kong has remained stationary being still modelled on the Adoption Act 1950 (in England) which was the law pertaining in England and Wales half a century ago. In contrast, it can be noted that the Adoption Act 1976 (in England) contains in s.39 a provision, the effect of which is to treat the child 'in law' as if he had been 'born as a child of the marriage'. ...
Whilst therefore, the nature of adoption as recognised by the law of Hong Kong gives the adopted child rights, those rights are by no means all encompassing as they might be if the legislation had been similar to current United Kingdom legislation."[49]
1.19 It
is therefore uncertain whether section 13 would cover the issue of an adopted
child's domicile. It has, however, been
argued[50] that it would be
reasonable in principle to say that, during the lifetime of an adoptive parent,
the adopted child's domicile would be the same as, and would change with, that
parent's domicile.
1.20 No authority can be found to support the
proposition that a child's abandonment or emancipation will enable him to
acquire a domicile.[51] On ceasing
to be dependent, a person continues to be domiciled in the country of his last
domicile of dependency. In the case of a child reaching eighteen years of age,
he will retain his existing domicile of dependency as a domicile of
choice,[52] even though he now has
the legal ability to change his domicile.
1.21 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.[53] On reaching eighteen
years of age, a person remains domiciled in the country where he was domiciled
immediately before reaching the age of
eighteen.[54] If he abandons that
domicile, either he will acquire a domicile of choice or his dormant domicile of
origin will revive.[55] 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.
1.22 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.[56] 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.
1.23 "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".[57] The
"residence" must be physical presence in a country "as an inhabitant of
it".[58] Apart from this,
residence may be established without any mental
element.[59] 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.[60] It is not necessary
that the length of residence be
long.[61] Residence for a few
days,[62] or for a period even
shorter than that,[63] may be
enough.
1.24 The "intention" required is to reside permanently or for an
unlimited time in a particular
country.[64] The residence must be
general and indefinite in its future contemplation, and not just for a limited
period or particular purpose.[65]
The intention must be directed exclusively towards one
country.[66] The intention need not
be irrevocable in nature,[67] nor is
it necessary that it be for the purpose of acquiring a
domicile.[68] 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.[69] 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,[70]
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,[71] this may prevent
him from establishing the requisite intention to settle in the country where he
is residing.
1.25 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.[72] 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.[73]
1.26 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.[74] Giving up
residence[75] or the intention to
reside[76] 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.[77] However, a mere
dissatisfaction with the country of the domicile of choice is not
sufficient.[78] Residence can
simply be given up, and not necessarily only by arriving in another
country.[79]
1.27 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,[80] irrespective of where
he is or what his plans are for the future.
1.28 For the purpose of the law of domicile, a married woman is a
dependent person. Accordingly, she cannot acquire a domicile of
choice[81] 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,[82] whether or not this
is according to a formal separation
agreement.[83] The rule also
applies where a wife has obtained a decree of judicial
separation.[84] Where a marriage is
void from the beginning, a woman remains capable of acquiring a domicile of her
choice.[85] However, if a marriage
is valid or subsisting initially (voidable), a woman shares her husband's
domicile until it is
annulled.[86]
1.29 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.[87]
1.30 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.
1.31 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.[89] 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 seems not appropriate to link
the question of capacity for the purposes of the law of domicile to the use of
compulsory detention or
guardianship.[90]
1.32 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.[91] 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".[92].
1.33 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.[93]
1.34 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.[94] 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[95] applied in other
civil cases, and the elements of "residence" and "intention" must be shown with
"perfect clearness and
satisfaction"[96] or "beyond
a mere balance of
probabilities".[97] More recent
cases,[98] however, prefer the
balance of probabilities as the standard of proof. The position appears to be
uncertain.
[4] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 1-060.
[5] Ong Constantino Erminda v Chau Shui Hing [1989] 1 HKC 237; Brook v Brook (1858) 3 Sm & G 481; Mette v Mette (1859) 1 Sw & Tr 416 at 423.
[6] Pipon v Pipon (1744) Amb 25; Re Maldonado, State of Spain v Treasury Solicitor [1954] P 223 at 233.
[7] Balfour v Scott (1793) 6 Bro Parl Cas 550;
[8] Re Maraver's Goods (1828) 1 Hag Ecc 498; Re Fuld's Estate (No 3), Hartley v Fuld [1968] P 675 at 696. It is uncertain whether the domicile at the date of execution or at the date of death governs where there has been a change of domicile after execution.
[9] Section 24 of the Wills Ordinance (Cap 30).
[10] Sections 3 and 4 respectively of the Matrimonial Causes Ordinance (Cap 179). In Coyne v Coyne [1960] HKLR 163, the question was whether the plaintiff had, at the time when the petition was presented, a Hong Kong domicile upon which to found the jurisdiction of the Court (section 4(1)(b) of the repealed Divorce Ordinance).
[11] Section 5 of Cap 179
[12] Section 6 of Cap 179
[13] Section 49 of Cap 179
[14] Section 56 of Cap 179
[15] Section 3 of the Legitimation Ordinance (Cap 184).
[16] Section 6 of the Parent and Child Ordinance (Cap 429).
[17] Order 11 rule 1 of the Rules of the High Court (Cap 4A).
[18] Suen Toi Lee v Yau Yee Ping [2002] 1 HKLRD 197.
[19] Udny v Udny (1869) LR 1 Sc & Div 441, at 448, 453, 457; Bell v. Kennedy (1868) LR 1 Sc & Div 307, at 320; Re Craignish [1892] 3 Ch 180, at 192.
[20] Udny v Udny (1869) LR 1 Sc & Div 441, at 448. It has been suggested that a person may have different domiciles for different purposes: Att-Gen v Rowe (1862) 1 H & C 31, at 45 and Lawrence v Lawrence [1985] Fam 106, at 132-133. However, according to Dicey and Morris on the Conflict of Laws (13th Ed, Sweet and Maxwell, 2000 at para 6-015), this proposition would raise many problems which are as yet unresolved. At para 6-016, it recognised that to a very limited extent, a person could be domiciled in two different countries for different purposes at the same time.
[21] Att-Gen v Rowe (1862) 1 H & C 31, at 42; Bell v. Kennedy (1868) LR 1 Sc & Div 307, at 319.
[22] Winans v Att-Gen [1904] AC 287.
[23] Winans v Att-Gen [1904] AC 287, at 290.
[24] Re Martin [1900] P 211, at 227(CA).
[25] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at paras 6-007 and 1-060.
[26] Udny v Udny (1869) LR 1 Sc & Div 441, at 457.
[27] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000, Rule 9 at para 6R-025.
[28] Udny v Udny (1869) LR 1 Sc & Div 441. In applying the principle that children not born in lawful wedlock are legitimate in Hong Kong if they are legitimate by the law of the domicile of each of their parents at the date of their birth, Kaplan J held that a child, with both parents domiciled in China which did not have a concept of legitimacy, was a legitimate child. (Re Sit Woo Tung [1990] 2 HKLR 410)
[29] It is generally accepted that a posthumous child should have his mother's domicile at birth although no authority can be found on this (Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000, at para 6-028).
[30] Udny v Udny (1869) LR 1 Sc & Div 441, at 457.
[31] This rule is generally accepted, though there is no direct authority to support it. This rule not only applies to a foundling in the strict sense, but also to a child whose parents are not known. Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-029.
[32] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000, at para 6-028.
[33] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000, at para 6-028.
[34] See the following part on "Domicile of dependency of children".
[35] Henderson v Henderson [1967] P 77.
[36] Udny v Udny (1869) LR 1 Sc & Div 441.
[37] The following paragraphs of this chapter will consider them.
[38] Section 2 of the Age of Majority (Related Provisions) Ordinance (Cap 410).
[39] Re Duleep Singh (1890) 6 TLR 385 (CA); Henderson v Henderson [1967] P 77.
[40] See the following paragraph.
[41] Potinger v Wightman (1817) 3 Mer 67.
[42] No authority can be found on this point. But see Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-092 for this submission.
[43] No authority can be found on this point. But see Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-094 for this submission.
[44] [1893] 3 Ch 490.
[45] [1893] 3 Ch 490, at 496-497.
[46] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-093.
[47] "...all rights, duties, obligations and liabilities of the parents or guardians of the infant in relation to the future custody, maintenance and education of the infant, including all rights to appoint a guardian to consent or give notice of dissent to marriage...".
[48] [2000] 2 HKLRD 161.
[49] [2000] 2 HKLRD 161, at 168G, 173H and 180G.
[50] Dicey and Morris on the Conflict of Laws, 9th Ed, Stevens & Sons Ltd, 1973 at 121 and Dicey's Conflict of Laws, 7th Ed, Stevens & Sons Ltd, 1958 at 117. Both editions were before the enactment of section 39 of the Adoption Act 1976 in England which puts it beyond doubt that an adopted child is regarded as the legitimate child of his adoptive parent or parents.
[51] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000, at para 6-091.
[52] In the goods of Patten (1860) 6 Jur (NS) 151; Gulbenkian v Gulbenkian [1937] 4 All E R 618.
[53] Section 2 of the Age of Majority (Related Provisions) Ordinance (Cap 410).
[54] In the Goods of Patten (1860) 6 Jur (NS) 151; Re Macreight (1885) 30 Ch D 165.
[55] Henderson v Henderson [1967] P 77. See the following paragraphs on "Revival of domicile of origin".
[56] Bell v. Kennedy (1868) LR 1 Sc & Div 307.
[57] Manning v Manning (1871) LR 2 P & D 223, at 226. The decision was not on a point of domicile.
[58] IRC v Duchess of Portland [1982] Ch 314, at 318-9.
[59] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-034.
[60] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at R11 para 6R-046.
[61] Bell v. Kennedy (1868) LR 1 Sc & Div 307, at 319; Stone v Stone [1958] 1 WLR 1287.
[62] Fasbender v Att-Gen [1922] 2 Ch 850, at 857-858.
[63] White v Tennant, 31 W Va 790, 8 SE 596 (1888).
[64] Att-Gen v Pottinger (1861) 6 H & N 733, at 747-748.
[65] Udny v Udny (1869) LR 1 Sc & Div 441, at 458.
[66] Bell v. Kennedy (1868) LR 1 Sc & Div 307.
[67] Gulbenkian v Gulbenkian [1937] 4 All E R 618.
[68] Re Annesley [1926] Ch 692, at 701.
[69] Bell v Bell [1922] 2 IR 152; Re Flynn [1968] 1 WLR 103.
[70] In the Estate Fuld (No 3) [1968] P 675, at 685; IRC v Bullock [1976] 1 WLR 1178 (CA).
[71] In the Estate Fuld (No 3) [1968] P 675, at 684.
[72] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at R11 para 6R-046. See also Drevon v Drevon (1864) 34 LJ Ch 129, at 133: "there is no act, no circumstance in a man's life, however trivial it may be in itself, which ought to be left out of consideration in trying the question whether there was an intention to change the domicile. A trivial act might possibly be of more weight with regard to determining this question than an act which was of more importance to a man in his life-time."
[73] Drevon v Drevon (1864) 34 LJ Ch 129.
[74] Udny v Udny (1869) LR 1 Sc & Div 441, at 450.
[75] Lyall v Paton (1856) 25 LJ Ch 746.
[76] In the Goods of Raffenel (1863) 3 Sw & Tr 49; IRC v Duchess of Portland [1982] Ch 314.
[77] Re Flynn (No 1) [1968] 1 WLR 103, at p113-5, per Megarry J (obiter); Qureshi v Qureshi [1972] Fam 173, at 191.
[78] Re Marrett (1887) 36 Ch D 400 (CA).
[79] See Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-075 for this submission.
[80] Udny v Udny (1869) LR 1 Sc & Div 441.
[81] See the following paragraphs for the situation in which married women can have their own independent domicile for certain limited purposes.
[82] In Re Scullard [1957] Ch 107, the spouses had separated for 46 years and were in different countries for about 30 of those years.
[83] Warrender v Warrrender (1835) 2 Cl & F 488. See Dicey and Morris on the Conflict of Laws, 8th Ed, Sweet and Maxwell, 1967 at 113, Rule 13.
[84] AG for Alberta v Cook [1926] AC 444.
[85] De Reneville v De Reneville [1948] P 100.
[86] De Reneville v De Reneville [1948] P 100.
[87] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-086.
[88] "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".
[89] No authority can be found on this point. See Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-107 for this submission.
[90] See Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-107 for this submission. The reason is that the use of these measures depends, in part at least, on the practice of social workers and hospital staff which may be more closely related to the immediate circumstances and willingness to co-operate of the patient than to factors relevant to the law of domicile.
[91] Hepburn v Skirving (1861) 9 WR 764.
[92] Urquhart v Butterfield (1887) 37 Ch D 357, at 382 (CA); but Cotton LJ added the qualification: "whatever his wish may have been."
[93] Sharpe v Crispin (1869) LR 1 P & D 611 (but in this case, the court held that if the person in question was capable of choosing a domicile he had, as a matter of fact, chosen that of his father). Re G [1966] NZLR 1028.
[94] Jopp v Wood (1865) 4 DJ & S 616; Winans v Att-Gen [1904] AC 287.
[95] Winans v Att-Gen [1904] AC 287; Ramsay v Liverpool Royal Infirmary [1930] AC 588.
[96] Bell v. Kennedy (1868) LR 1 Sc & Div 307, at 321 per Lord Westbury; Winans v Att-Gen [1904] AC 287, at 292 per Lord Macnaghten.
[97] Henderson v Henderson [1967] P 77 at 80 per Sir Jocelyn Simon P.
[98] In the Estate Fuld (No 3) [1968] P 675, at 685-6; Buswell v IRC [1974] 1 WLR 1631, at 1637.