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Hong Kong Law Reform Commission |
2.2 As discussed in the previous chapter, there are two sets of
concepts and rules for determining a child's domicile: (a) domicile of origin,
which determines domicile at birth; and (b) domicile of dependency, which
determines domicile during childhood. It is doubtful whether there is a need or
advantage to have two separate sets of concepts and rules.
2.3 A
domicile of origin is ascribed to every person at birth by operation of law. It
reflects the domicile of the relevant parent at the time of birth. Where a
child is born or where his parents live is irrelevant in this regard. As a
consequence, the same domicile of origin can be passed on from generation to
generation even though few members of the family have actually lived in the
country of their domicile.
Illustration
A, whose domicile of origin was England, went to India where he had a legitimate son B. B, while resident in India, had a legitimate son C who also, while resident in India, had a legitimate son D. A, B and C intended to return to England when they retired at sixty years of age, but they all died in India before reaching that age. D's domicile of origin remains England, even though he has never lived there.[99]
2.4 In
addition, the concept of revival of domicile of origin has been much
criticised.[100] The rationale
for the concept of revival is that if no substantial connection has been
established with another place, the country of domicile at birth provides the
most appropriate domicile. That may be questionable, however, where there is no
substantial connection with the country of domicile at birth. A person may find
himself domiciled in a country with which he has only a stale or tenuous
connection, or even which he has never visited.
Illustrations
(1) T's domicile of origin was England. In 1947 he moved to the United States. In 1953 T became a naturalised American citizen and acquired a domicile of choice in New York. In 1960, without losing his domicile of choice, T moved to Germany. In 1967 T decided to make his permanent home in England, but he did not return to England until 1972. It was held that T's domicile of origin revived in 1967, even though he had left England twenty years earlier and had not yet physically returned to reside there.[101] When T formed his intention, after years of absence from the domicile of choice, of going to England and not going back to the United States, his domicile of origin in England revived automatically on the intention being formed.
(2) B, born in New Zealand to Hong Kong domiciled parents, received at birth a domicile of origin in Hong Kong. He lived in New Zealand continuously, and acquired a domicile of choice there on reaching the age of majority. At the age of 50 he left New Zealand with the intention of settling permanently in Australia, and so abandoned his domicile of choice. Before deciding in which state he would settle in Australia, B died in a car accident shortly after his arrival. B's domicile of origin in Hong Kong would revive (even though he had never been there), as he had abandoned his domicile of choice in New Zealand without acquiring a new one.
2.5 There
are also a number of matters which remain unsettled in respect of domicile of
origin. First, no authority can be found as to the domicile of origin of a
foundling, even though it is generally accepted that the domicile of origin
should be the country where the child is
found.[102] Secondly, as
discussed in Chapter 1, the domicile of origin of an adopted child is unclear,
since it is uncertain whether section 13 of the Adoption Ordinance (Cap 290)
would cover the issue of adopted children's
domicile.[103] In Xie Xiaoyi
& others v Director of
Immigration,[104] the
Court of Appeal unanimously held 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. Thirdly, the position of a legitimate child who was born after
the divorce of his parents remains unclear. It can be argued that the child
should take his mother's domicile at
birth.[105] Fourthly, no
authority can be found as to the position of a posthumous child, even though it
is generally assumed that he should take his mother's domicile at
birth.[106]
2.6 The rules determining the domicile of dependency of children
differentiate between legitimate and illegitimate children. In general terms, a
legitimate child's domicile of dependency follows that of his father, while an
illegitimate child's follows that of his mother. This is a well-settled rule
even though it can lead to some strange results. For instance, where the
parents of a legitimate child live apart, and the child lives with the mother in
England and has no home with the father in Hong Kong, the child's domicile still
follows that of his father. It is also difficult to justify in principle why
the domicile of a child depends on whether his parents are married or not. Bart
Rwezaura has said:
"The major function of domicile is to establish a relationship between an individual and a particular legal system. It is based on the primary consideration that a child should acquire the domicile of a parent who has legal responsibility towards him/her and, presumably, with whom the child resides. It might be argued then, that where the law has been changed to remove most legal distinctions between all children irrespective of whether or not their parents are married, the law of domicile should be modified accordingly to reflect this policy."[107]
2.7 Another
problem of the existing law is that it cannot satisfactorily deal with the
situation where a child's parents die, or he is fostered or taken into the care
of a local authority. In the former case, a child's domicile of dependency
freezes (ie his domicile of dependency from the parents cannot be
changed). In the latter case, the child's domicile will continue to follow his
parent's even though he is taken into the care of a local authority or lives
with a third person, either under a court order or a private arrangement.
Illustration
B migrated to New South Wales from Hong Kong with his parents. B's domicile of dependency changed with his parents' to New South Wales. Both of his parents subsequently died in New South Wales and B returned to Hong Kong to be brought up by relatives. Despite the fact that B has not returned to, and has had no further connection with, New South Wales, his domicile remains there until he can acquire a domicile of choice after attaining the age of majority.
2.8 The
domicile of an illegitimate child or of a fatherless legitimate child depends on
that of his mother, who may effect a change in her child's domicile when
changing her own.[108] A child's
domicile may be changed "as the result of the exercise by [his mother] 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."[109]
Illustration
Two illegitimate children B and C live with their mother in Hong Kong. The mother, domiciled in Hong Kong, then goes with B to New Zealand while leaving C with a relative in Hong Kong, and then marries a New Zealand domiciled man. The mother obtains a New Zealand domicile, and so will B. C, the other child, will remain domiciled in Hong Kong.
2.9 Some
matters concerning the domicile of dependency of children are uncertain. First,
no authority can be found as to the position of a legitimated child's domicile,
but it is argued that his domicile follows and changes with his
father's.[110] Secondly, because
it is doubtful whether section 13 of the Adoption Ordinance (Cap 290) deals with
the issue of an adopted child's
domicile,[111] the domicile of an
adopted child is uncertain. Thirdly, it remains unclear whether a guardian can
alter a child's domicile where the parents are no longer alive. It has been
argued[112] that in those
circumstances, the domicile cannot be changed and that the same applies to the
domicile of an illegitimate child without a living mother (though with a living
father).
2.10 The principal criticisms of the rules for acquiring a domicile
of choice are:
(a) they are artificial: an existing domicile persists long after any connection with the country in question has ended;
(b) they also lead to uncertainty: it is hard to decide a person's domicile because of the inherent difficulty of ascertaining his intention.
2.11 A number of factors combine to make it difficult to establish a new
domicile of choice. First, the burden of proving a change of domicile rests
with the person alleging that change of domicile. Secondly, a change from
domicile of origin to domicile of choice may call for a higher standard of proof
than just a balance of
probabilities.[113] Thirdly, the
"intention" required is to reside "permanently" or for an unlimited time in a
particular country, and the burden to prove this is onerous. Fourthly, it is
inherently difficult to prove the intention of a person, especially where that
person is deceased. Lord
Atkinson[114] said that the
tastes, habits, conduct, actions, ambitions, health, hopes and projects of the
person in question were all relevant. Kindersley
VC[115] also said that no act or
circumstance in a man's life, however trivial, should be left out in considering
whether there was an intention to change his domicile.
2.12 The problems
stemming from the difficulties and uncertainties of determining a person's
domicile were best summarised as follows:
"Trials are apt to be long and expensive; for since a man's state of mind must be investigated, evidence even of the smallest matter is relevant. Besides, the difficulty of reaching certainty in matters of domicile in the absence of any decision by a competent court is a serious inconvenience to numerous people when they come to make a will or in the many other circumstances in which it is necessary to know which legal system is applicable. The practitioner may find it impossible to advise his client with confidence, since he cannot prophesy what impact the facts will have upon the judge's mind."[116]
2.13 Article 15(4) of the Convention on the Elimination of All Forms
of Discrimination against Women (which applies to Hong Kong) provides that the
states parties "shall accord to men and women the same rights with regard to
the law relating to ... the freedom to choose their residence and
domicile".[117] The Committee
on the Elimination of All Forms of Discrimination against Women considered:
"[d]omicile, like nationality, should be capable of change at will by an
adult woman regardless of her marital
status".[118] The Committee
also recommended that the states parties "should, where necessary to comply
with the Convention, in particular in order to comply with [article 15] ...,
enact and enforce
legislation".[119] It seems
clear that the common law rule as to the domicile of married women contravenes
article 15(4).
2.14 It is also questionable whether this common law
rule satisfies the Hong Kong Bill of Rights Ordinance (Cap 383) and the Basic
Law. Article 22 of section 8 of Cap 383 (equivalent to article 26 of the
International Covenant on Civil and Political
Rights[120] (the "ICCPR"))
provides:
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
2.15 Article
39 of the Basic Law provides that the ICCPR remains in force in Hong Kong, and
that the rights and freedoms enjoyed by Hong Kong residents shall not be
restricted unless as prescribed by law. Such restrictions shall not contravene
the above provision that the ICCPR remains in force in Hong Kong. Article 25 of
the Basic Law expressly states that all Hong Kong residents shall be equal
before the law. No authority can be found as to whether the common law rule of
the domicile of dependency of married women survives article 25 of the Basic
Law. In JW v JW,[121] the
Supreme Court of Ireland, however, decided that the common law rule could not
survive a provision in the Irish
Constitution[122] similar to
article 25 of the Basic Law. Article 8 of the Basic Law, however, provides that
the laws previously in force in Hong Kong (ie common law, rules of equity,
ordinances, subordinate legislation and customary law) shall be maintained,
except for any that contravene the Basic Law. Hence, the common law rule of the
married women's domicile of dependency may have impliedly been repealed
already.
2.16 The rule as to the domicile of dependency of married women
applies even where the spouses have lived apart for a long time in different
countries, whether or not this is according to a formal separation
agreement.[123] In Re
Scullard,[124] where the
husband and wife had lived apart for forty-seven years, some thirty years of
which had been in different countries, it was held that the rule still applied.
Danckwerts J said: "the intention [of residing elsewhere permanently which]
had in fact formed ... was only prevented by a rule of law relating to the
domicile of a wife from being effective in
law".[125] The rule
also applies where a wife has obtained a decree of judicial
separation.[126] Lord Cranworth
suggested in Dolphin v Robins that the rule should be
qualified:[127]
"... there may be exceptional cases to which, even without judicial separation, the general rule would not apply, as for instance, where the husband has abjured the realm, has deserted his wife, and established himself permanently in a foreign country, or has committed felony and been transported."[128]
2.17
It is not surprising that this rule has long been criticised. It reflects
"social conditions and attitudes of a past age ... [and produces] serious
inconvenience in
practice".[129] Lord
Denning explained[130] that it was
an old notion in English law that "a husband and wife [were] one, and the
husband [was] that one". The rule had been swept away in almost all branches of
the law except for domicile. Lord Denning said that it was "the last barbarous
relic of a wife's servitude". Bart Rwezaura echoed this view:
"It need not be stressed here that married women have a right to an independent domicile not only for purposes of divorce but also for all other purposes. Let us hope, therefore, that this 'barbarous relic of the wife's servitude' will be removed from the Hong Kong law as soon as possible."[131]
2.18 The effect of the existing law is to freeze the domicile of a
mentally incapacitated person at the time of the onset of his mental incapacity,
even though there is a subsequent change in circumstances, such as his making
his permanent home in another country.
Illustration
A, domiciled in Hong Kong, became mentally incapacitated and was sent to England. Even though A resides in England for many years, his Hong Kong domicile persists so long as he remains mentally incapacitated.
2.19 Where
a person is born mentally incapacitated or becomes so while he is a dependent
child, the effect of the existing law is that his domicile of dependency
continues while he remains mentally incapacitated. This is still the case even
if he no longer lives as part of the family, or if his parents' legal duty to
care for him no longer exists.
Illustration
B, a legitimate child with a New Zealand domicile of origin, became mentally incapacitated. At thirteen, she was sent by her mother to an institution in Scotland after her father's death. B was still mentally incapacitated at twenty-nine when her mother married a man domiciled in England. Her mother accordingly acquired a domicile in England. There was no evidence of her intention to change B's domicile. B remained domiciled in New Zealand, even though she had left there sixteen years earlier.[132]
2.20 As discussed in Chapter 1, there is a suggestion that the
standard of proof required to change a domicile of origin to a domicile of
choice is more onerous than the balance of probabilities applied in other civil
cases.[133] The position remains
uncertain. It has been suggested that there is a historical reason for the
special tenacity of a domicile of origin. William Binchy has said:
"It is possible that the greater difficulty in shaking off a domicile of origin derived from the view of English courts over a century ago, during the formative period of the principles of domicile, that persons with an English domicile of origin would be very slow to abandon it. This was perhaps a correct inference when, at the height of British imperialism, Britain exercised control over countries spread throughout the world. The pattern of colonists frequently sending their children back to Britain for their education and of retiring there supported the view that the domicile of origin would be difficult to dislodge."[134]
2.21 The
English and Scottish Law Commissions have corroborated this view:
"The rationale of its peculiar tenacity seems to be the identification of the country of that domicile with the patria or homeland of the person concerned and the allegedly reasonable expectation of expatriates that, despite prolonged periods abroad, their private and family life will continue to be governed by the law of their homeland. It could be argued that the pre-Second World War attitudes displayed in cases such as Winans v Attorney General and Ramsay are anachronistic today, being a direct response to the demands of a now vanished Empire and the desire of imperial and colonial servants and the businessmen who accompanied them to retain their domiciles in the United Kingdom."[135]
2.22 This
rationale for the special tenacity of the domicile of origin has little
relevance to Hong Kong's current circumstances. It is difficult to justify
imposing a higher standard of proof when the change is from a domicile of origin
to a domicile of choice than that applied when the change is from one domicile
of choice to another.
2.23 As mentioned in Chapter 1, a federal state such as Canada or a
composite state such as the United Kingdom consists of more than one "country"
(ie Manitoba, Ontario, etc for the former and England, Scotland, etc for the
latter). The state itself (Canada or the United Kingdom) is not a "country" for
the purpose of domicile. A person going to a federal or composite state will
therefore acquire a new domicile only when he resides in one of its constituent
"countries" with an intention of residing there permanently or indefinitely.
This may have undesirable effects.
Illustrations
(1) A, with a Hong Kong domicile of origin, left Hong Kong with the intention of settling permanently in Australia. He spent a few months in Sydney but died in a car accident before deciding in which city to settle down. In these circumstances, he died domiciled in Hong Kong.
(2) B, with a Hong Kong domicile of origin, left for Singapore at the age of two and later acquired a domicile of choice in New Zealand. At sixty, he moved to Australia with the intention of settling there permanently, but without deciding in which city to make his home. He died shortly after arriving in Australia. Since he had abandoned his New Zealand domicile without acquiring a new one, his Hong Kong domicile of origin revived although he had never returned to Hong Kong and had had no further connection with it since the age of two.
[99] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-032.
[100] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-076.
[101] Tee v Tee [1974] 1 WLR 213.
[102] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-029.
[103] Xie Xiaoyi & others v Director of Immigration [2000] 2 HKLR 161, at 168G, 173H and 180G.
[104] [2000] 2 HKLRD 161, at 168G, 173H and 180G.
[105] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-028.
[106] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-028.
[107] Bart Rwezaura, "Birth in or out of wedlock: does it matter any more?- The Parent and Child Ordinance 1993" 1994 Law Lectures for Practitioners 264, at 293.
[108] Re Beaumont [1893] 3 Ch 490.
[109] Re Beaumont [1893] 3 Ch 490, at 496-497.
[110] See Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-092 for this submission.
[111] Xie Xiaoyi & others v Director of Immigration [2000] 2 HKLR 161, at 168G, 173H and 180G.
[112] See Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-094 for this submission.
[113] We will deal with this further in the later part of this chapter.
[114] Casdagli v Casdagli [1919] AC 145 at 178.
[115] Drevon v Drevon [1864] 34 LJ (NS) 129 at 133.
[116] First Report of the Private International Law Committee (1954), England, Cmd 9068 para 9.
[117] The People's Republic of China is a signatory to the Convention and in a notification to the United Nations dated 10 June 1997, it extended the application to Hong Kong (<http://www.unhchr.ch/html/menu3/b/e1cedaw.htm> Department of Justice's web page (last visit on 28 January 2004)).
The application of the Convention to Hong Kong is subject to some reservations, including a reservation of the right to continue to apply relevant immigration legislation governing the entry into, stay in, and departure from, Hong Kong. The reservations can be found in the notification of 10 June 1997.
[118] United Nations, Report of the Committee on the Elimination of Discrimination Against Women, General recommendation 21 (thirteenth session) on Equality in marriage and family relations, para 9, also available at <http://www.un.org/documents/ga/docs/49/plenary/a49-38.htm>, the United Nations' web-page, (last visit on 28 January 2004).
[119] Cited above, at para 49
[120] It is available at <http://www.unhchr.ch/html/menu3/b/a_ccpr.htm>, the United Nations' web page, (last visit on 28 January 2004).
[121] [1993] 2 IR 476.
[122] Article 40, s 1 of the Constitution provides: "All citizens shall, as human persons, be held equal before the law".
[123] 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.
[124] [1957] Ch 107.
[125] [1957] Ch 107 at 117.
[126] AG for Alberta v Cook [1926] AC 444.
[127] 7 HLC 390.
[128] 7 HLC 390, at 418-9.
[129] Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-084.
[130] Gray v Formosa [1963] R 259, at 267.
[131] Bart Rwezaura, "Recent Developments in the Divorce law of Hong Kong: Towards Minimal Adjudication and Consensual Divorce" (1996) HKLJ 81, at 100.
[132] Re G [1966] NZLR 1028.
[133] Winans v Att-Gen [1904] AC 287; Ramsay v Liverpool Royal Infirmary [1930] AC 588.
[134] William Binchy, Irish Conflicts of Law, 1988, at 75.
[135] The Law Commission and the Scottish Law Commission, Private International Law, the Law of Domicile, WP No 88 and CM No 63,1985, at para 5.9.