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Hong Kong Law Reform Commission |
3.2 Apart from domicile, the more common connecting factors are
habitual residence, nationality and ordinary residence. We will also consider
permanent residency and right of abode as a possible option.
3.3 Habitual residence is applied in a number of contexts, including:
(a) determining the formal validity of a
will[136]; (b) determining
jurisdiction of the court in proceedings for divorce and
nullity[137]; (c) determining
jurisdiction of the court in proceedings for presumption of
death[138]; (d) recognition of
overseas divorces or legal
separations[139]; and (e)
declaration of a person's
status[140].
3.4 The term
"habitual residence" is adopted in the Hague Conference on Private International
Law. The term is deliberately left
undefined[141], and is not treated
as a term of art but according to the ordinary and natural meaning of the two
words. The English Court of Appeal has stressed that habitual residence is
basically a question of fact to be determined by referring to the circumstances
of each case.[142] Habitual
residence must, however, be distinguished from mere residence and the word
"habitual" connotes a quality of residence but not its length.
3.5 In Hong Kong, nationality is also applied as a connecting factor
in a number of circumstances, such as in determining the formal validity of a
will[143], and recognition of
overseas divorces or legal
separations[144].
3.6 Until
the beginning of the 19th century, domicile was universally regarded
as the basis for determining an individual's personal
law.[145] It was the Code
Napoleon in 1804 in France which pioneered a shift from domicile to nationality
in continental Europe. Belgium, Luxembourg, Austria and the Netherlands
subsequently adopted the provisions of the French code. The real catalyst for
the shift from domicile to nationality on the continent of Europe was the
Italian Civil Code. In the second half of the 19th century, domicile was
replaced by nationality in code after code in continental Europe. The use of
nationality later spread to Japan and some South American countries.
Nationality has traditionally been used as the major connecting factor in the
civil law system on the Mainland of the People's Republic of China.
3.7 Ordinary residence as a connecting factor appears in various
contexts, including: (a) as a condition for presenting a bankruptcy
petition[146]; (b) as a
condition for making an order prohibiting a debtor from leaving Hong
Kong[147]; and (c) as a
prerequisite for entitlement to protection under the Paris Convention as a
well-known trade
mark[148].
3.8 It has been
suggested in some cases that ordinary residence is nothing more or less than
residence.[149] It is submitted
that the better view is that the word "ordinary" does add something: an element
of continuity, order or settled
purpose.[150] There are also
different views as to the relationship between habitual residence and ordinary
residence. Some cases suggest that habitual residence is "something more than"
ordinary residence,[151] but that
"something more" is elusive. It has, however, been held that there is no real
distinction between the two.[152]
It has also been said that the two concepts of habitual residence and ordinary
residence share "a common core of
meaning".[153] In Ikimi v
Ikimi[154], the Court of
Appeal held that in respect of family law legislation, the two concepts must be
synonymous.
3.9 Article 24 of the Basic Law defines the categories of permanent
residents having the right of abode in Hong Kong. This is a familiar and
important concept. It might be asked why this should not replace domicile as a
connecting factor. However the right of abode is used to determine a person's
status in public law whereas domicile is used to determine a person's private or
personal law. Moreover, how or when a person becomes a permanent resident is
peculiar to Hong Kong. A Hong Kong court may, for example, be asked to
determine the personal law applicable to Swiss nationals who celebrated their
marriage thirty years ago in Cuba. How Hong Kong law determines the right of
abode has little relevance to the question.
3.10 Nauru, one of the smallest Commonwealth jurisdictions, has been
a pioneer in replacing domicile as a general connecting factor with habitual
residence.[155] The Irish Law
Reform Commission recommended the same change in its 1983 report on
domicile.[156] In contrast, the
law reform Commissions in England, Scotland and South Africa have all
recommended retaining the concept of domicile as a general connecting
factor.
3.11 In their joint report on domicile in 1987, the English and
Scottish Law Commissions set out the advantages and drawbacks of using habitual
residence and nationality as connecting
factors.[157] According to the
two Commissions, habitual residence has the following advantages over
domicile:
(1) it is generally easier to establish than domicile since it is less dependent on the intention of the person in question;
(2) it is more easily understood by laymen; and
(3) it is directly applicable to all persons, including children, without the need for additional concepts such as domicile of dependency.
3.12 There
are, however, a number of disadvantages of habitual residence:
(1) The connection between a person and his place of habitual residence may not be sufficiently strong to justify his civil status and affairs being determined according to the law of that place.[158]
(2) The concept of habitual residence is relatively undeveloped as a legal concept. In particular, there are uncertainties:
(i) as to the importance of intention in determining whether residence is habitual;
(ii) as to how long residence must persist to become habitual;
(iii) as to the position where a person has more than one habitual residence or none.
Special statutory provisions may be needed to address these uncertainties,
which would detract from the simplicity of the concept which is one of its
claimed advantages.
3.13 The Law Commissions also analysed the
advantages of nationality over domicile:
(1) The concept of nationality is more readily understood by laymen.
(2) It provides a degree of certainty in that it is more easily ascertained and proved, since the change of nationality is a public and conscious act of record, either involving naturalisation or a marriage which brings a new nationality. This can be more easily determined than a person's intention.
(3) Acquiring a new nationality involves the consent of the person and the country in question. Hence, the connection created by a new nationality is less likely to be criticised by those affected by it.
3.14 In
the Commissions' opinion, however, shifting to nationality would have a number
of drawbacks:
(1) Additional rules will be required to deal with stateless persons or those with more than one nationality. In federal or composite states, nationality alone would not indicate the particular jurisdiction within the state with which a person should be connected.
(2) Nationality as a connecting factor may connect a person with a country which he may have never visited, since nationality does not depend on residence.
(3) Nationality as a connecting factor may apply to a man, against his wishes, the law of a country from which he has risked his life to escape.
Despite
the Irish Law Reform Commission's recommendation that domicile should be
replaced with habitual residence, the English and Scottish Commissions did not
support such a course in the United Kingdom. The two Commissions were aware
that nationality would not affect temporary expatriates as adversely as habitual
residence. They nonetheless concluded that, because of the drawbacks of
habitual residence and nationality which they had identified, domicile should be
retained as a connecting factor, though it should be modified in the ways
recommended in their report.
3.15 The South African Law Commission in
its 1990 report[159] also
considered the possibility of replacing domicile with nationality or habitual
residence. The advantages and drawbacks of these two alternatives set out in
the report were similar to those mentioned in the English and Scottish Law
Commissions' report. The South African Law Commission observed that replacing
domicile with other connecting factors was a drastic step. In the Commission's
opinion, a convincing case had not been made out that such a course would
present more benefits than difficulties. The Commission accordingly recommended
that domicile should be retained as a general connecting factor.
3.16
In contrast, the Irish Law Reform Commission in its
"thinly-argued"[160] report
recommended that habitual residence should be substituted for domicile as a
general connecting factor. The Commission's recommendation has yet to be
implemented, however.
3.17 We have considered in some detail the advantages and
disadvantages of replacing domicile with nationality or habitual residence which
have been identified by law reform agencies elsewhere. Some of the drawbacks
have particular force in Hong Kong. For instance, the fact that there are four
law districts within the People's Republic of China means that it would be
impracticable in many cases to use nationality (to replace domicile) unless the
concept were further refined, so as to be able to identify one of the four
separate law districts within the People's Republic of China. This might be
done by adopting a two-stage approach: i.e. (1) nationality and (2) habitual
residence. Thus the court might select Hong Kong law for Chinese nationals
living in Hong Kong and Mainland law for Chinese nationals living in, for
example, Shanghai. However, such an approach may seem to combine all the
disadvantages of both nationality and habitual residence. Conversely, the
adoption of habitual residence as a connecting factor would mean that the
personal law of Hong Kong people who live and work on the Mainland for a
prolonged but temporary period may be that of the Mainland. In this case, the
individual's personal law would in most cases no longer reflect the place which
they would generally regard as their permanent home. In addition, the increased
mobility of people in today's world means that the adoption of habitual
residence as the test may have the effect of changing the individual's personal
law too readily. Substituting domicile with habitual residence or nationality
may also lead to strange results which would not necessarily be the most
appropriate outcome.
3.18 We note that none of the overseas law reform
bodies whose reports we have discussed above considered ordinary residence as a
possible alternative to domicile. Ordinary residence is less commonly used than
other connecting factors and has particular shortcomings. It is, for instance,
possible for an individual to have more than one ordinary residence at a time.
The ease with which ordinary residence can be established or changed is also a
drawback, and could lead to confusion and uncertainty.
3.19 We see the
force in the argument that the greater fluidity of modern society and the
increasing global trend for businessmen and others to work away from their
homeland call for a concept which promotes a stable legal background against
which people can conduct their domestic affairs, but not for a concept which
allows their civil status and rights to fluctuate as they move from one place to
another.[161] Having weighed the
arguments for and against adopting other connecting factors, we are persuaded
that domicile, a concept which links the individual to the country where he has
his home, is more appropriate for determining which system of law should govern
a person's civil status and other personal affairs. While connecting factors
other than domicile can be employed in particular cases as alternative or
supplementary connecting factors, we consider that domicile should be retained
as a general connecting factor. Nevertheless, the numerous problems set out in
Chapter 2 pertaining to the existing rules for determining a person's domicile
make it clear that these rules require modification. We make recommendations
later in this paper as to how we believe the rules should be changed to remove
the anomalies of the present law.
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Recommendation 1
Domicile should be retained as a general connecting
factor, but the existing rules for determining a person's domicile should be
modified as recommended in this Paper.
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[136] Section 24 of the Wills Ordinance (Cap 30).
[137] Sections 3 and 4 of the Matrimonial Causes Ordinance (Cap 179).
[138] Section 6 of Cap 179.
[139] Section 56 of Cap 179.
[140] Section 6 of the Parent and Child Ordinance (Cap 429).
[141] The aim is to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems.
[142] Re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495. Hartmann J of the Court of First Instance in Hong Kong applied this principle in determining a child's habitual residence in a case of international child abduction, Re N (a Child) [2001] 2 HKLRD 377.
[143] Section 24 of Cap 30.
[144] Section 56 of Cap 179.
[145] See generally Dicey and Morris on the Conflict of Laws, 13th Ed, Sweet and Maxwell, 2000 at para 6-128.
[146] Section 4 of the Bankruptcy Ordinance (Cap 6).
[147] Section 21B of the High Court Ordinance (Cap 4).
[148] Section 4 of the Trade Marks Ordinance (Cap 559).
[149] Levene v IRC [1928] AC 217, at 225 per Viscount Cave, LC. Mr Justice Bokhary PJ stated that the expression "ordinarily resident" should be given its natural and ordinary meaning. (Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278 at 283).
[150] Dicey and Morris on the Conflict of Laws, 13th Ed, 2000, at para 6-118.
[151] Cruse v Chittum [1974] 2 All ER 940, at 943.
[152] Cameron v Cameron, 1996 SC 17.
[153] Nessa v Chief Adjudication Officer [1999] 1 W.L.R. 1937, 1941 (H.L.). Lord Slynn, however, reserved the question whether the terms were always synonymous. Each might take a shade of meaning from the context in which it was used.
[154] [2001] EWCA Civ. 873, [2002] Fam. 72 (C.A.)
[155] Conflict of Laws Act 1974.
[156] The Irish Law Reform Commission, Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws, 1983, paras 7 to 18.
[157] The Law Commission and the Scottish Law Commission, Private International Law, the Law of Domicile, (Law Com No 168 and Scot Law Com No 107), paras 3.4 to 3.16.
[158] This can best be illustrated by the situation of a person who works or lives abroad for a prolonged but temporary period, such as an English domiciled oil field worker in Saudi Arabia on a long term contract. If habitual residence were adopted as the connecting factor, various "intimate" matters relating to his status and property, such as his legal capacity to marry, would be determined by the law of Saudi Arabia. This will cut his links with his homeland, isolating him from its law and courts. It would be especially acute where the cultural background of the place of habitual residence is very different from that of a person's homeland.
[159] South African Law Commission, Report on Domicile, Project 60, March 1990, paras 5.1 to 5.29.
[160] Dicey and Morris on the Conflict of Laws, 13th Ed, 2000, at para 6-134.
[161] Law Com No 168 and Scot Law Com No 107, para 3.8.