Rules for Determining Domicile - [2004] HKLRCCP 1 (March 2004) - The Law Reform Commission of Hong Kong Domicile Sub-committee Consultation Paper - Rules for Determining Domicile - Chapter 4 - The law in other jurisdictions,

4.2 In Australia, there is broadly similar legislation which applies in each state and territory. Domicile Acts in almost identical terms were enacted by all the States,[162] the Northern Territory[163] and the Commonwealth.[164] Cited collectively as the Domicile Acts, they have changed the common law significantly, but have not completely replaced it. If the relevant time at which a domicile is to be determined is on or after 1 July 1982,[165] domicile will be determined according to the Domicile Acts (together with the common law). On the other hand, if the relevant time at which a domicile is to be determined is before 1 July 1982, it will be determined only according to the common law. For the sake of convenience, we refer in this Paper only to the Commonwealth Domicile Act 1982.

4.3 The Australian common law rules on the domicile of origin are similar to those in force in Hong Kong:

4.4 Where the relevant time at which a domicile of origin is to be determined is on or after 1 July 1982, these rules continue to apply where the parents are living together. If, on the other hand, a child has his principal home with one of his parents and the other parent is living separately or is dead, the child's domicile will be that of the first mentioned parent.[170] In addition, the domicile of a child who is adopted by two adoptive parents would be the same as if he were born in wedlock to those parents.[171] If there is only one adoptive parent, the child will acquire the domicile of that parent.[172] If the adoption is rescinded, the child's domicile will be determined according to the order rescinding the adoption and, if there is no such provision, as if the adoption had not taken place.[173]

4.5 The Australian common law rules on a child's domicile of dependency are more or less the same as those in Hong Kong:

4.6 These rules may be modified where the relevant time at which a domicile of dependency is to be determined is on or after 1 July 1982. Where a child's parents are living together, these rules will still apply. Just as with a domicile of origin, where a child has his principal home with only one of his parents and the other parent is living separately or is dead, the child's domicile will be that of the first mentioned parent.[176] The child's domicile will thereafter change with that of that parent, even if the child subsequently makes his home with a third person.[177] The child's domicile will follow the first mentioned parent's until such time as the child makes his principal home with the other parent, or his parents resume or start living together.[178] If the first mentioned parent dies, the last domicile of that parent continues as the child's domicile until the child makes his home with the surviving parent (if any), or the child acquires his own domicile on reaching majority.[179] As in the case of a domicile of origin, the domicile of a child who is adopted by two adoptive parents would be the same as if he were born in wedlock to the parents.[180]

Canada

4.7 In Canada, only Manitoba has a general statute governing domicile: the Domicile and Habitual Residence Act 1983. In other provinces and territories, the common law and some scattered pieces of legislation together govern the determination of a person's domicile. The following discussion will focus on the 1983 Act in Manitoba. The 1983 Act codifies, inter alia, the law of domicile for all purposes of the law of Manitoba, and is substantially similar to the Draft Model Act to Reform and Codify the Law of Domicile adopted by the Uniform Law Conference in 1961. The common law rules on domicile are abolished.[181] The domicile of a person is to be determined under the 1983 Act to the exclusion of the laws of any other state or subdivision thereof.[182]
4.8 A "child" is defined as an unmarried person who is under the age of majority, and who is not a parent with legal custody of his child.[183] The common law rule that a child's domicile differs according to whether his parents are married or not no longer applies in Manitoba. Where parents have a common domicile, a child's domicile follows that of his parents.[184] If parents do not have a common domicile, their child has the domicile of the parent with whom the child normally and usually resides.[185] In other cases, a child's domicile is in the state or subdivision where he normally and usually resides.[186]

India

4.9 The law of domicile in India is a combination of both common law and the Indian Succession Act 1925.[187] The domicile of origin of a legitimate child born during the lifetime of his father is that of his father at the time of the child's birth.[188] A legitimate child born after his father's death has his domicile in the country where his father was domiciled when he died.[189] An illegitimate child has a domicile of origin in the country of his mother's domicile at the time of his birth.[190] Indian law therefore appears to fix the domicile of a legitimate child with his father and the domicile of an illegitimate child with his mother even after the father or mother has died.[191] It has been argued that a foundling has his domicile in the country in which he is found.[192]

4.10 A child's domicile of dependency follows the domicile of the parent from whom he derived his domicile of origin.[193] Section 14 of the 1925 Act provides for three exceptions where a child's domicile does not change with that of his parent. These are if the child: (a) is married; (b) holds any office or employment in the Government; or (c) has set up, with the parents' consent, any distinct business. The domicile of a child whose parents have separated is not clear.[194] According to section 12 of the Hindu Adoptions and Maintenance Act 1956, an adopted child is deemed to be the child of his adoptive father or mother for all purposes from the date of the adoption. From such date all the ties of the child to the family of his or her birth are deemed to be severed and replaced by those created by the adoption in the adoptive family. It is therefore submitted that an adopted child's domicile should be that of the adopter and should change with it.[195]

Ireland

4.11 In Ireland, common law is still the main source of the law of domicile, even though the Domicile and Recognition of Foreign Divorces Act 1986 has supplemented it. A person's domicile of origin is determined solely according to the common law, and differs according to whether he is legitimate or illegitimate.[196] The position of a foundling is uncertain, but it is generally accepted that it should be the place where he is found.[197]

4.12 As to domicile of dependency, a legitimate child will have, during the lifetime of his father, the domicile of his father.[198] After the death of his father the child will take the domicile of his mother, as is the case with an illegitimate child.[199] No authority can be found as to the position of legitimated children.[200] Furthermore, the domicile of an adopted child is also a matter of uncertainty[201] with which neither the Adoption Act 1952 nor the Domicile and Recognition of Foreign Divorces Act 1986 has dealt.

4.13 At common law, there is some uncertainty as to the domicile of a child whose parents are divorced, legally separated, or otherwise living apart.[202] Section 4 of the Domicile and Recognition of Foreign Divorces Act 1986 has to some extent made the position more certain:

Malaysia

4.14 The law of domicile in Malaysia generally follows that in England.[208] Where a legitimate child is born during his father's lifetime, his domicile of origin is in the country of his father's domicile at the time of the child's birth.[209] However, where a child is a legitimate child born after his father's death or is an illegitimate child, his domicile of origin of is in the country of his mother's domicile at the time of his birth.[210] While there is no clear authority on the point, it has been argued that the domicile of a foundling should be in the place where he is found.[211]

4.15 It has been argued that by virtue of section 9 of the Adoption Act 1952 in Malaysia, an adopted child's domicile is determined as if he were the legitimate child of the adoptive parent or parents and his domicile of origin may change as a result of adoption.[212] This section is almost identical to section 13 of the Adoption Ordinance (Cap 290) in Hong Kong. Both are modelled on section 10 of the Adoption Act 1950 in England. According to section 13 of Cap 290, when an adoption order is made, certain rights, duties and obligations relating to the child pass from the natural parents to the adoptive parents. It is clear from the wording of the section that these rights and duties are not all-embracing.[213] As discussed in Chapters 1 and 2, the Hong Kong 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.[214] It is therefore uncertain whether section 13 would cover the issue of adopted children's domicile. Whether the Malaysian courts would reach a similar conclusion in relation to section 9 of the Adoption Act is, of course, conjecture.

4.16 A child's domicile of dependency differs according to whether the child is legitimate or illegitimate in ways similar to that of the domicile of origin. The above discussion of adopted children also applies to the determination of their domicile of dependency.

New Zealand

4.17 In New Zealand, domicile was initially purely a common law concept. Subsequently, the Domicile Act 1976 substantially modified, though did not completely replace, the common law rules for determining a person's domicile. A person's domicile at any time after 1 January 1981[215] will be determined as if the Act had always been in force. On the other hand, a person's domicile at any time before 1 January 1981 will be determined as if the Act had never been passed.[216]

4.18 At common law, a child's domicile of origin and domicile of dependency, as in other jurisdictions, depended on whether his parents were married or not. The changes made in the Domicile Act 1976 have the effect of replacing these common law rules:[217]

4.19 Until a foundling has his home with one of his parents, both of his parents shall be deemed to be alive and domiciled in the country in which the foundling was found.[221] The domicile of an adopted child is that of his adoptive parent or parents, and thereafter it will be determined as if the child had been born to the adoptive parent or parents.[222] A "child" is defined as a person under the age of sixteen who has not married.[223]

Singapore

4.20 The law of domicile in Singapore is generally similar to that in Malaysia. In determining a person's domicile of origin and domicile of dependency, as in Malaysia, it is necessary to differentiate between legitimate and illegitimate children.[224] It is generally accepted that the domicile of origin of a foundling should be in the place where he is found.[225] It has been argued that an adopted child's domicile of dependency should follow that of his adoptive parent or parents.[226] This is because the Adoption of Children Act[227] in Singapore "makes provisions for all matters in which domicile is controlling and in all such matters, declares in effect the severance of the former parent-child relationship and its replacement by a new."[228]

South Africa

4.21 In South Africa, the Domicile Act 1992 sets out the rules for determining a person's domicile. The Act implements recommendations made by the South African Law Commission.[229] A child is domiciled at the place with which he is most closely connected.[230] If, in the normal course of events, a child has his home with his parents or one of them, it is presumed that the parental home is the child's domicile.[231] A "child" is defined as a person under the age of eighteen years while the term "parents" includes adoptive parents and parents who are not married to each other.[232]

United Kingdom

4.22 The rules which govern the determination of a person's domicile are essentially the same in England and Wales and Scotland. Where there is a difference, we will mention the Scottish position separately.

4.23 As in Hong Kong, a child's domicile of origin depends on whether he is legitimate or illegitimate.[233] The position of a legitimate child born after his parents' divorce is uncertain.[234] Where the parents are not divorced but are living apart at a child's birth, the child's domicile of origin will be that of his father.[235] A foundling has a domicile of origin in the country where he is found.[236]

4.24 A child's domicile may be changed as a result of adoption, legitimation or a change in the parents' domicile. As a result of adoption, a child will acquire a new domicile of origin since he is regarded as born to the adopters in wedlock.[237] 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.[238]

4.25 Like domicile of origin, a child's domicile of dependency also differs according to whether his parents are married or not. A legitimated child's domicile is, from the time of the legitimation and during his father's lifetime, the same as and changes with his father's if the legitimation is due to his parents' marriage.[239] Before the legitimation or after his father's death, the child's domicile follows that of his mother. 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.[240] Adopted children are treated as the legitimate children of the adoptive parent or parents and their domicile will be determined accordingly.[241]

4.26 Section 4 of the Domicile and Matrimonial Proceedings Act 1973 has altered the common law rule governing the domicile of dependency of legitimate and legitimated children, though in a limited way:

4.27 In 1987, the English and Scottish Law Commissions issued a joint report on the law of domicile which contained a number of proposals for reform of the rules for determining a person's domicile.[248] The relevant recommendations in the report were that:

4.28 The recommendations have not yet been implemented. Although the proposals for reform in the report are desirable in themselves, the United Kingdom government has decided not to take forward these reforms.[253] The reason given was that these proposals did not contain sufficient practical benefits to outweigh the risks of proceeding with them and to justify disturbing the long-established body of case law on this area.[254] The decision to a large extent was made under the influence of strong lobbying by foreign businessmen resident in the United Kingdom.[255] Although they were not domiciled there, they were concerned that the implementation of the report would adversely affect their liability to tax in the United Kingdom. The relevant Ministers considered these concerns to be unfounded, and the Commissions considered that their proposals would be unlikely to have any significant impact on the incidence of taxation. The Government nevertheless decided not to implement the joint report.

Options

4.29 It is clear from the above discussion that a range of different approaches are followed in other jurisdictions, though the common law rules which apply to Hong Kong are also applicable to most of these jurisdictions. In some jurisdictions, legislation has supplemented the common law rules. In others, the common law rules have been largely replaced by general statutory provisions on domicile. There would appear to be three options to be considered in Hong Kong in relation to reform of the law determining a child's domicile:

4.30 The effect of option (a) would be to keep the concepts of domicile of origin and domicile of dependency and the differentiation between legitimate and illegitimate children. The domiciles of a legitimated child, a foundling, an adopted child and a legitimate child born after his parents' divorce would have to be addressed individually. This is still basically the position in India, Malaysia and Singapore.

4.31 In option (b), the scope of the supplementary statutory provisions could be to amend the major common law principles or it could be restricted to filling gaps in the common law (as in Australia, Ireland and the United Kingdom). These three jurisdictions have maintained the concepts of domicile of origin and domicile of dependency, and the differentiation between legitimate and illegitimate children.

4.32 For example, in Australia the domicile was unclear of a child who had his principal home with one of his parents, where the other parent was either living separately or was dead. Section 9(1) of the Domicile Act 1982 makes it clear that the child's domicile follows that of the parent with whom he has his principal home.[256] In both Ireland and the United Kingdom there are similar provisions, but with a more limited scope. Where parents of a legitimate child are living apart and the child has his home with his mother but not with his father, the child's domicile (of dependency) follows that of his mother.[257] In addition, there are provisions in Australia and the United Kingdom which provide that adopted children are treated as the legitimate children of their adoptive parent or parents and their domicile will be determined accordingly.[258]

4.33 The crux of option (c) is to discard the concepts of domicile of origin and domicile of dependency and the differentiation between legitimate and illegitimate children. In Manitoba (Canada), a child's domicile depends on whether his parents have the same domicile, but not on whether his parents are married or not. Where they have a common domicile, the child's domicile will follow theirs,[259] but if they do not, the child will have the domicile of the parent with whom he normally and usually resides.[260] In New Zealand, a child's domicile hinges on whether his parents are living together and with which parent a child lives. A child whose parents are living together has the domicile of his father.[261] Where parents are not living together, a child has the domicile of his mother,[262] but if he has his home with his father, his domicile follows that of his father.[263] In South Africa, a child is domiciled in the country with which he is most closely connected,[264] but if the child has his home with his parents or one of them, he is presumed to be domiciled where the parental home is.[265] The English and Scottish Law Commissions' joint report has recommended the adoption of provisions similar to those in South Africa.[266]

Conclusions

(a) Abolishing the existing rules

4.34 The concept of domicile of origin and its revival, the rigid dependency of children on their parents for domicile, the dual-concept approach (domicile of origin and domicile of dependency) and the differentiation between legitimate and illegitimate children all contribute to the anomalies in the existing law. There is also uncertainty in respect of the domiciles of a legitimated child, a foundling, a posthumous child, an adopted child and a legitimate child born after his parents' divorce.

4.35 In reviewing the English and Scottish Law Commissions' proposals, Peter North observes that the abolition of the domicile of origin and domicile of dependency would greatly simplify the position.[267] The various anomalies and gaps in the existing law have convinced us that the concept of domicile of origin should be discarded. Similarly, the sometimes unfortunate consequences of the application of the concept of domicile of dependency to those cases where a child does not reside with both parents have led us to the conclusion that the concept of domicile of dependency should also be abolished.

Recommendation 2

We recommend that the concept of domicile of origin and that of domicile of dependency should be discarded.

4.36 The enactment of the Parent and Child Ordinance (Cap 429) has removed most of the legal disabilities associated with illegitimacy of children. A distinction is still drawn between legitimate and illegitimate children, however, in respect of their domicile. We find it hard to justify in principle why a child's domicile should depend on the marital status of his parents, and therefore recommend eradicating this discriminatory differentiation.

Recommendation 3

We recommend that there should be no differentiation between legitimate and illegitimate children in determining their domicile.

(b) Adopting the test of closest connection and associated presumptions

4.37 To replace the existing concepts of domicile of origin and domicile of dependency, we are in favour of a single test which ties the child's domicile to the jurisdiction with which he is most connected. We believe this would significantly simplify the law. We reject the option of maintaining the existing law (presented as option (a) in paragraph 4.29 above), and we do not consider that the halfway-house of option (b) (which retains the existing common law but supplements this with a statutory gloss) goes far enough to rectify the law's anomalies. In practice, the interplay of common law principles and statutory provisions on domicile has complicated the rules for determining a child's domicile, especially in the case of Australia.

4.38 The jurisdictions in option (c) have discarded the concepts of domicile of origin and domicile of dependency and the difference of treatment between legitimate and illegitimate children. In New Zealand, a child's domicile depends on whether his parents are living together and with which parent he lives. The New Zealand legislation also makes provision for specific circumstances, such as the domicile of a foundling and that of an adopted child. The Act, however, has not formulated a general test to be applied in all situations.

4.39 In Manitoba (Canada), a child's domicile depends on whether his parents have the same domicile. Where parents have a common domicile, a child's domicile follows that of his parents, but if they do not have a common domicile, their child will have the domicile of the parent with whom the child normally and usually resides. In other cases, a child's domicile is in the state or subdivision where he normally and usually resides. The difficulty with this approach, however, is that it does not necessarily follow from the fact that parents have the same domicile that their child is living with them, or has any substantial connection with the country of their domicile. In addition, the test of where a child normally and usually resides is, in our opinion, too narrow, and leaves out other relevant circumstances which should be taken into account.

4.40 In contrast, the English and Scottish Law Commissions proposed a broader test: a child is domiciled in the country with which he is most closely connected. The United Kingdom Commissions considered that such a test would allow the courts to reach the most appropriate conclusion by considering all the circumstances of the case. Those factors would include the child's intention and nationality and that of his parents, his family background, his education and where he resided at the time in question.[268] This view is shared by C F Forsyth who considers that the test allows domicile to be "determined objectively with reference to all the circumstances surrounding" a child.[269] Peter North also considers that the Law Commissions' recommended test would ensure that a child's domicile is fixed in a country with which he has a close connection.[270]

4.41 In addition, in the Law Commissions' opinion, the test would also provide some built-in protection against a third party's attempt to manipulate a child's domicile for improper purposes.[271] The court would have sufficient flexibility in such a case to take account of circumstances where, for ulterior motives, a child has been removed from the country to which he is most closely connected.

4.42 We share the United Kingdom Commissions' view that the closest connection test not only provides clear guidance for the courts, but also allows the courts sufficient flexibility to ensure that all relevant factors can be taken into account. With this test, the law would also be better positioned to fill the gaps in the existing law in respect of the domiciles of a legitimated child, a foundling, a posthumous child, an adopted child and a legitimate child born after his parents' divorce. The new test would also be better able to address other problematic circumstances, such as where a child has his home with parents who live together but have different domiciles, or where a child lives with his grandparents, or in an orphanage. We therefore recommend a general test that a child is domiciled at the place with which he is most closely connected.

4.43 The Law Commissions also recommended that, for the sake of certainty, the general test of closest connection should be used in conjunction with two rebuttable presumptions which would deal with the most common circumstances. First, where a child's parents have their domicile in the same country and the child has his home with either or both of them, it is presumed that he is most closely connected with that country. Secondly, where a child's parents are not domiciled in the same country and he has his home with only one of them, he is presumed to be most closely connected with the country where the parent with whom he has his home is domiciled. The South African Law Commission, which adopted the English Law Commissions' "closest connection" test, also recommended the use of rebuttable presumptions, but of a slightly different effect. Under the South African Law Commission's proposals, where, in the normal course of events, a child has his home with his parents or one of them, the parental home is presumed to be the child's domicile.[272]

4.44 The Law Commissions considered the rebuttable presumptions would:

The South African Law Commission endorsed the Law Commissions' move away from the principle of dependency, and considered the proposal went a long way towards establishing a functional alternative without undermining clarity and legal certainty.[274]

4.45 We agree that there are considerable advantages in the use of rebuttable presumptions. Such presumptions are particularly helpful in cases where there is a shortage of evidence. In the most common cases where a child lives with one or both parents, the rebuttable presumptions would enhance the ease and certainty of determining the child's domicile. Where, for instance, the parents are domiciled in country A but live with their child in country B, the child would be presumed to be most closely connected with country A under the Law Commissions' presumptions. If the child is, as a matter of fact, most closely connected with country B, the presumption can be subject to rebuttal. We like the conciseness of the South African version of the presumption, but we are concerned that the term "parental home" might create unnecessary difficulties. Applying the South African rule to the above example, the parental home is likely to be regarded as being in country B. The child will therefore be presumed to be domiciled there. While that may be the appropriate determination in some cases, we prefer a presumption that the child is domiciled in country A, where his parents have their domicile, instead of country B, where their residence may not necessarily be long term. On balance, we suggest adopting the two presumptions recommended in the Law Commissions' report, and putting it beyond doubt that "parents" includes adoptive parents of a child. We have considered whether to adopt additional presumptions but have concluded that it is unnecessary to do so. In our view, the two recommended presumptions would cover most sets of circumstances and would be likely to provide a natural and sensible result. Devising other presumptions for other scenarios might bring about unwanted artificiality, and it would be simpler to apply the general test of closest connection.

Recommendation 4

We recommend the following rules for determining a child's domicile:

(a) a child's domicile should be in the country[275] with which he is most closely connected;

(b) where a child's parents have their domicile in the same country and the child has his home with either or both of them, he is presumed to be most closely connected with that country, unless the contrary is proved;

(c) where a child's parents are not domiciled in the same country and the child has his home with only one of them, he is presumed to be most closely connected with the country where the parent with whom he has his home is domiciled, unless the contrary is proved;

(d) "parents" includes adoptive parents of a child.

(c) Other issues

4.46 A number of other issues remain to be considered in relation to the domicile of children. The first is whether there is any need to give some guidance on how to determine the test of closest connection. Both the United Kingdom Law Commissions and the South African Law Commission share the view that it would be undesirable to list relevant factors in the legislation since to do so might mislead the court or hamper its proper finding of fact.[276] The United Kingdom Law Commissions emphasised that the court should be able to look at all the child's circumstances before deciding his domicile.[277] We agree that no single factor should be of decisive significance, and before identifying the country with which a child is most closely connected, the courts should weigh all relevant factors,[278] including the intention of the child and that of his parents or of those who have control over the child.[279] We do not think it realistic to expect to be able to provide in legislative form an exhaustive list of factors which would cover the infinite variety of personal circumstances.

4.47 Secondly, the question arises as to what constitutes the concept of "home" which is employed in the two recommended presumptions. The Law Commissions observed that the concept of "home" used in section 4 of the Domicile and Matrimonial Proceedings Act 1973 had caused no difficulty and concluded that the same concept should also work well in the presumptions. Section 4 has no equivalent in Hong Kong, and hence the jurisprudence concerning that section would not be applicable here. Nonetheless, we believe that if the concept can operate satisfactorily in England, it should also do so in Hong Kong. We therefore conclude that what constitutes a home should depend on the facts of each case, and should be left to the courts to decide. To provide greater certainty, we intend that a child should be regarded as having his home with his parents where they live together on a day-to-day basis, even though there are regular temporary separations.[280] Obvious examples include a child attending a boarding school, or staying in a hospital, or a child with a parent who must frequently absent himself from the home for the purpose of his work. There is, however, no need to make express provisions for these cases in the legislation since what constitutes a home should depend on the facts of each case, and the matter should be left to the courts.

4.48 Thirdly, the Law Commissions considered whether the court should have power to vary a child's domicile for his welfare. They observed that it was wrong in principle for the court to have such a power, since domicile should be a legal status deduced from the facts. We share the Law Commissions' conclusion that no person or court should have the power to abrogate or override the rules governing the domicile of children.

4.49 We note that a child may well have a domicile different from that of his parents after the commencement of the recommended legislation.[281] For instance, where parents have their domicile in country A and their child was born and bought up in Hong Kong, the child might be held to be most closely connected with Hong Kong while the parents would still retain their domicile in country A.

Domicile of adults

Australia

4.50 In Australia, any person who is over eighteen years of age or is married has the ability to acquire an independent domicile.[282] However, a person suffering from mental incapacity is not capable of obtaining a domicile of his choice.[283]

4.51 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.[284] 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.[285] His new domicile once acquired is not lost upon expiry of the permission to stay,[286] or even after deportation.[287]

4.52 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[288] put the common law test in a more flexible way:

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.[290] 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.[291] 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.[292]

4.53 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.[293] 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[294] 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.[295]

4.54 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.[296] Applying this to our example, the deceased's domicile of choice in New Zealand would continue until his actual arrival in England.

Canada

4.55 In Manitoba, every person has the ability to acquire an independent domicile provided he is not a child or mentally incompetent.[297] His domicile of choice is in the place where he has his principal home and where he intends to reside.[298] There is a presumption that a person intends to reside indefinitely where his principal home is, subject to his contrary intention.[299] 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.[300]

4.56 The common law rule which results in the revival of the domicile of origin is abolished,[301] and a person's existing domicile continues until a new one is obtained.[302] 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.

India

4.57 In India, a person's domicile of origin prevails until he acquires a new domicile.[303] If a person is not insane,[304] on reaching eighteen years of age[305] 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.

4.58 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[306] 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.

4.59 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.[307] 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.[308]

4.60 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.[309]

Ireland

4.61 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[310] 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.

4.62 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.[311] 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.[312] 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:[313]

4.63 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.[315]

4.64 Any person can abandon his domicile of choice by ceasing to reside[316] in the country where he is domiciled and by ceasing to intend to reside there permanently or indefinitely. He may prove this[317] by, for instance, establishing the acquisition of another domicile of choice. He may, however, abandon his existing domicile of choice without obtaining another one.[318] 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:

Malaysia

4.65 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.[320] 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,[321] but an individual must have a definite and final intention of changing the existing domicile.[322] No single fact is ever decisive or too trivial.[323] Each trivial fact of a person's life is relevant, such as membership of social clubs.[324]

4.66 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:[325]

Upon abandoning his domicile of choice, a person either acquires a new domicile of choice or his domicile of origin revives.[326]

New Zealand

4.67 A person becomes capable of acquiring an independent domicile on reaching sixteen years of age or on marrying at an earlier age.[327] This is subject to the common law rule that the mentally incapable cannot acquire an independent domicile.[328] Once a person becomes capable of obtaining an independent domicile, he continues to be so capable.[329] 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.[330] He acquires a new domicile in a country at a particular time if, immediately before that time, he:

In the absence of an intention to live in the country concerned indefinitely, mere long residence there will not suffice.[332] The domicile acquired in the above manner continues until another domicile is acquired in the same manner.[333] The common law doctrine of revival of domicile of origin is abolished.[334]

Singapore

4.68 The law governing a person's domicile of choice in Singapore is the same as that in Malaysia.[335] The difference is that the age of majority in Singapore is the common law age of twenty-one years.[336] In all other respects, the discussion above on Malaysia also applies to Singapore.

South Africa

4.69 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.[337] However, this does not apply to a person who does not have the mental capacity to make a rational choice.[338] 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.[339]

4.70 A person's existing domicile continues until he acquires another by his own choice or by operation of law.[340] The concept of revival of a person's domicile of origin no longer applies.[341]

United Kingdom

4.71 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.[342] 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.[343]

4.72 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.[344] 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.[345] 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.[346] On abandoning his domicile of choice, he may acquire another domicile of choice. Otherwise, his domicile of origin will revive.[347] The discussion in Chapter 1 of the Hong Kong position applies equally to the United Kingdom.

4.73 In their joint report in 1987, the English and Scottish Law Commissions made a number of proposals for reform of the law governing domicile of choice. These proposals were as follows:

Options and conclusion

4.74 As discussed in Chapter 2, the existing rules on domicile of choice have long been criticised for being artificial and for creating uncertainty. They are artificial in the sense that a person's domicile persists long after the ending of any connection with the country concerned and it is therefore difficult for him to establish a change in domicile. They lead to uncertainty because it is hard to determine a person's intention. A number of factors contributing to the artificiality and uncertainty have been mentioned in Chapter 2.[355] With the aim of dealing with these anomalies, we consider below the options for reform in respect of a number of key issues and present our recommendations for reform:

(a) Who is capable of acquiring a domicile of choice

4.75 In all of the jurisdictions discussed above, any person who is not suffering from mental incapacity may acquire a domicile of his choice once he attains the age of majority. In some jurisdictions (Australia, Ireland, New Zealand and the United Kingdom), marrying under that age also enables a minor to obtain an independent domicile. In other jurisdictions, marrying under the age of majority is irrelevant and the English and Scottish Commissions also made a recommendation to that effect.[356] Which approach is to be preferred in Hong Kong requires consideration.

4.76 Under the existing law in Hong Kong, any mentally capable person above the age of majority (eighteen years of age)[357] can acquire an independent domicile. We see no difficulty with this rule, which is in line with the position in all other jurisdictions. There are, however, some outstanding questions. The first is whether a married person should have the ability to acquire an independent domicile, regardless of his age. The second question is whether the age at which a child has capacity to marry (which, in Hong Kong domestic law, is sixteen, though only with parental consent[358]) is a more appropriate age at which to allow a person to acquire an independent domicile than the general age of majority (which is eighteen).

4.77 To deal with these questions, it may be useful first to understand the reasons in England for lowering the age for acquiring an independent domicile to the age of sixteen, and for enabling a married child to obtain a domicile of his choice. In England, a person is now capable of having an independent domicile when he attains the age of sixteen,[359] or marries under that age.[360]

4.78 According to Ian MacArthur who moved the Domicile and Matrimonial Proceedings Bill in the House of Commons[361], the rationale behind section 3 was that if a person was considered fit to marry and set up his own home, there could be little reason why he should remain dependent for his personal law upon his parents. Since sixteen was the minimum age for marriage, it should also be the age at which a person could acquire an independent domicile. Furthermore, if a person married below that age under a foreign system of law which permitted earlier marriage, the time at which he could acquire an independent domicile should be the actual date of marriage in that special case. Section 3, in MacArthur's opinion, would remove an anomaly in the law. The Law Commissions, however, recommended that marriage by itself should not enable a person to obtain a domicile of his choice.

4.79 We are well aware of the argument that if a person can marry at a young age under foreign law, he should be regarded as being mature enough to acquire a domicile of his choice. After considerable deliberation, we have come to the conclusion that, for a number of reasons, marriage should be irrelevant to a person's ability to obtain an independent domicile. First, we are not convinced that the mere fact of marriage in a foreign country which permits marriage at a young age means that a person of tender years would have the required capacity to form the intention necessary to acquire a domicile. Secondly, under certain systems of foreign law, marriage is possible at a very young age for their own unique religious or social reasons, unconnected with a person's maturity. Thirdly, to allow a married person to acquire an independent domicile, irrespective of his age, might be regarded as discriminatory against unmarried persons. Fourthly, the adoption of our recommendation that domicile should be based on "closest connection" would mean that the differences between the consequences arising from the rules for determining the domicile of a child and of an adult would be less striking in the case of a married child than under the existing law. For example, New Zealand domiciled parents are living in Hong Kong and their Cantonese-speaking child ("X"), born and brought up in Hong Kong, marries and has his own child at the age of seventeen and a half. If X does not live with his parents, our recommended presumptions will not apply and his domicile will be determined by the closest connection test. The test will enable the court to weigh all relevant factors, including X's intention. The domicile of X, a married child, will no longer be linked to that of his parents as a matter of law. Even if X and his own child live with his parents, he will only be presumed to have the domicile of his parents, and his child will also be presumed to have his domicile. The presumptions, as recommended, are rebuttable on a balance of probabilities. Finally, the need to determine the domicile of a child married under the age of sixteen would be likely to arise only extremely rarely.

4.80 As to the second question, the argument for lowering the minimum age for acquiring an independent domicile to sixteen years of age is that a person can already marry and have his own home at that age. It therefore sounds sensible to lower it to that age, especially when domicile relates to a person's home. We understand that there may be anomalies if a person between the age of sixteen and eighteen is unable to acquire an independent domicile. Nevertheless, as illustrated by the example in the preceding paragraph, the differences between the rules for determining the domicile of a child and of an adult would be narrowed in the case of a married child under our recommended rules. The test of closest connection should be flexible enough to take into account the difference between a child of four months old and one of seventeen years of age. In any event, by the age of eighteen, he can have a domicile of his own choice. The period in question is relatively short, namely between the age of sixteen and eighteen. We have therefore concluded that there is no need to lower the minimum age to sixteen years of age.

4.81 A final question is whether an unmarried parent under the age of majority should be able to obtain an independent domicile. The concern is that, under the current law, the domicile of a child born to an unmarried mother below full age depends on the mother's domicile, which in turn hinges on that of her own parents. The effect of our recommendation would be that a child's domicile will be determined by the closest connection test, and the possibility of such automatic "double dependency" will be avoided. We therefore conclude that parenthood should be irrelevant to a person's ability to acquire an independent domicile.

Recommendation 5

We recommend that any person who is not mentally incapacitated may acquire a domicile of his choice once he attains the age of 18.

4.82 Before discussing the requisite act and intention for acquiring a domicile of choice, we have considered whether the closest connection test recommended for the domicile of children would also be appropriate for adults. Applying the same test to adults and children would not only have the advantage of uniformity, but would adopt a simpler test than that of the present law. We have decided, however, that the closest connection test should not be extended to the domicile of adults for the following reasons. First, while children would not generally be regarded as being able to exercise their will so as to form the requisite intention, the same cannot be said of adults. Secondly, under the existing act and intention approach, a person arriving in a country with the requisite intention will acquire a domicile there immediately on arrival. This would not be the case under the closest connection test.

4.83 Furthermore, in applying the test, the intention of the person concerned will be considered only as one among a number of relevant factors. We believe, however, that the "intention" element should weigh more heavily in determining the domicile of adults. Were that not the case, a person may be held to be most closely connected with one place, even though he has an unequivocal intention to be domiciled in another. In our view, adopting the act and intention test in respect of an adult's domicile is more likely to achieve certainty than the closest connection test, when it is less easy to predict the weight which the court will accord to each relevant factor.[362] We therefore conclude that an adult's domicile should continue to be based on his acts and intention.

(b) The act required to acquire a domicile of choice

4.84 Before discussing the type of act required to acquire a domicile of choice, it may be useful first to consider the alternative of doing away altogether with the requirement of act. This suggestion was made in our discussions because of the anomalous case where a person domiciled in country A intends to settle in country B but dies on his way to country B. Despite his intention, the person will still retain his domicile in country A. If the requirement of an act is removed as suggested, that person will obtain a domicile in country B as soon as he abandons his existing domicile and forms the requisite intention to obtain a new one. In our view, however, allowing mere abandonment of the existing domicile together with the requisite intention to suffice, would create uncertainty and possible anomalies. It is also very difficult to justify in principle why a person can obtain a domicile in a place in which he has yet to physically arrive.

4.85 As to the act required to acquire a domicile of choice, different jurisdictions have different requirements. There are three categories: "presence" in the country concerned (Australia, New Zealand,[363] South Africa and the English and Scottish Commissions); "residence" in the country concerned (India, Ireland, Malaysia, Singapore and the United Kingdom); and having a "principal home" in the country concerned (Manitoba). Hong Kong now adopts the requirement of "residence" and it may be that the appropriateness of changing to "presence" or "principal home" should be considered.

4.86 Of three options, we are of the view that "presence" in the country concerned can best bring out the essence of the act required to acquire a domicile. Under the existing law, the required act is "residence" which "means very little more than physical presence".[364] It means physical presence as an inhabitant of the country concerned[365], and it excludes those who are present "casually or as a traveller"[366]. The word "residence", however, gives the impression of connoting something more than mere physical presence. This is precisely what the South African Law Commission had in mind in recommending "presence":

4.87 Moreover, the word "presence" better enshrines the existing law[368] where a person who arrives in a country with the requisite intention will acquire a domicile there immediately upon arrival. The person domiciled in country A in the above example can obtain a domicile in country B upon arrival in the latter country, provided he has the required intention, even though he passes away immediately after landing.

4.88 The question remains as to whether the "presence" in the country concerned has to be lawful in order to acquire a domicile. Under the existing Hong Kong law, a person cannot acquire a domicile of choice by illegal residence. In Puttick v AG[369], a wanted German criminal entered the United Kingdom on a false passport and subsequently contracted a marriage of convenience to an Englishman so as to be able to continue to reside in England. Sir George Baker P held that a domicile could not be established through "residence...achieved by lies and impersonation and fraud". He adopted the following passage in Dicey & Morris, The Conflict of Laws[370]:

It is, however, arguable whether the courts of one country will allow a person to acquire a domicile in another country by residence there which is unlawful under the law of that other country. It is submitted that an English court could do so.[371]

4.89 The position in England and Wales is the same as that in Hong Kong. In Australia, the presence in the country concerned must be lawful. Thus, a person who enters a country unlawfully[372] or obtains permission to enter by fraud cannot acquire a domicile of choice there. If the presence is lawful when an intention to remain indefinitely in a country is formed, a person can still obtain a domicile there although permission to stay is granted for a limited period only.[373] Permission to remain may be temporary, such as a tourist's or student's visa, and such permission will suffice provided an intention to remain is formed while the permission is in force. A domicile once acquired will not be lost upon expiry of a temporary permit, even though the person concerned is subject to an order of deportation.[374]

4.90 In South Africa, section 1(2) of the Domicile Act 1992 provides that a person can acquire a domicile of choice when he is lawfully present at a particular place together with the requisite intention. The presence, therefore, must be lawful. The requirement was the same before the commencement of the 1992 Act.[375]

4.91 Under section 9 of the Domicile Act 1976 in New Zealand, in order to acquire a domicile in a particular country, a person is required, among other requirements, to be "in that country". In applying this section, both the District Court[376] and Family Court[377] adopted the following, in their opinion, helpful statement by the Australian Court of Appeal:

Hence, in order to obtain a domicile, the presence in the country concerned must be lawful.

4.92 According to section 8 (1) of the Domicile and Habitual Residence Act 1987 in Manitoba, a person's domicile is in the place where his principal home is situated and where he intends to reside. Only one case on this section can be found, but it has not dealt with the issue of whether the presence has to be lawful.[379] In other common law provinces of Canada, common law is still the source of the law of domicile. In those provinces, where a person obtains residence illegally, the courts will examine the nature and purpose of the illegality to determine if the person can obtain a domicile in spite of the illegal residence.[380] An illegal immigrant may still acquire a domicile if the illegality arises from a technical breach of immigration law.[381] In contrast, a person who is in a country illegally in a bid to escape prosecution in another place cannot obtain a new domicile.[382] Although the 1987 Act abolished the common law rules respecting domicile, the courts in Manitoba are likely to follow the common law approach on "illegality" adopted in other provinces.

4.93 The position is less certain in Ireland. On balance, the more favourable view is that while the illegality of a person's residence may throw light on his intention, it should not, in itself, be a reason for denying that he is in fact residing in the country concerned.[383] It has, however, been argued that it is a sound policy for the lex fori to deny benefits to persons illegally residing in the jurisdiction.[384] No cases on this matter can be found in Singapore and Malaysia, but it seems reasonable to assume that case law from other common law jurisdictions would be persuasive. The "Puttick" case was indeed discussed by Tan Yock Lin, who did not consider the reasoning entirely convincing, however.[385] It remains unclear as to how the courts in Singapore and Malaysia would deal with this matter. Finally, no useful material can be found in respect of India.

4.94 It would seem clear that in order to obtain a domicile, the requisite presence or residence has to be lawful in Hong Kong and most common law jurisdictions. Before reaching a conclusion, however, we have also considered the contrary views of Mavis Pilkington.[386] In Pilkington's opinion, there is no reason to say that the "traditional criteria" for acquiring a domicile of choice (residence and intention) impose the "lawfulness" requirement. She submits that the "lawfulness" requirement is only part of the wider overriding public policy that a man cannot benefit from, or take advantage of, his own wrong, and is expressed as an additional criterion in the context of domicile. She explains that in the case of matrimonial relief, the purpose of adopting domicile as a jurisdictional ground is to link the parties to a system of law with which they and their marriage are closely connected. The application of the "lawfulness" requirement may disconnect the parties from the system of law which is best placed to determine their matrimonial affairs.[387] She further elaborates that an illegal resident in England is liable to pay taxes and may be subject to criminal proceedings. An illegal resident may also challenge his detention under the Immigration Act in the court, and his rights to sue in civil matters (other than matrimonial matters) cannot be denied since, being subject to the law, he is also entitled to its protection. Thus, Pilkington submits that the "lawfulness" requirement creates an inexplicable dichotomy in an illegal resident's rights to invoke the jurisdiction of the court.

4.95 She also submits that the requirement in its present form does not properly reflect the public policy on which it is based. In some cases, it may deny domicile where there is no public interest involved. She explains that the distinction between matters of private right governed by domicile (such as questions of civil status, capacity to contract marriage and succession to personal property) and matters involving public interest (such as the question of a stranger's right to claim admission to a foreign country) has been clearly drawn[388]. Hence, she further submits that public policy should apply only to matters which concern the public domain, and political status is merely one aspect of it. Pilkington is of the view that the "lawfulness" requirement may cause considerable hardship by separating a person from the system of law with which he is most closely connected and which he expects to govern his personal affairs. She concludes that if the public policy upon which the "lawfulness" requirement is founded were operated as a matter of discretion, public interest could be adequately protected without denying a person's rights and expectations concerning the application of his personal law. Pilkington finally hopes that the "lawfulness" requirement will not be applied to deny the acquisition of a domicile of choice without full consideration of the principle and authorities upon which it rests.

4.96 We see the force of Pilkington's arguments in saying that domicile itself is not a benefit, and there are differences between cases involving advantages obtained from one's own wrong and those not involving such advantages. The determination of an illegal immigrant's domicile for the purposes of personal matters, such as his capacity to marry or devolution of his moveable property, is more about identifying the applicable law, than about obtaining benefit from the individual's own wrong. For example, where an illegal resident in Hong Kong dies, his last domicile would determine which system of law should govern the devolution of his moveable property. The determination of his domicile decides the applicable law. Where, in the course of determining an illegal immigrant's domicile, a benefit is obtained by his wrongdoing in relation to matters involving public interests (such as a claim to right of abode, nationality or permanent residency), public policy would come into play. Nevertheless, we appreciate that not requiring the requisite presence to be lawful, and invoking public policy as a matter of discretion to deny any benefit obtained by wrongdoing, could render the law confusing and uncertain. After careful consideration, we have decided that the presence necessary to acquire a domicile should be lawful. This will achieve certainty, and consistency with other jurisdictions. Since the ascertainment of a person’s domicile may often become a relevant legal issue only many years after the time of the facts in question, it may be both difficult and time-consuming to positively prove that the presence at the material time was lawful because of the passage in time. Hence, we further recommend that a person’s presence is presumed to be lawful, unless and until the contrary is established. In the case of a claim to a domicile in another jurisdiction, the existing position should also remain unchanged.

Recommendation 6

We recommend that the act necessary for a person of full age and capacity to acquire a domicile should be presence in the country[389] concerned. To acquire a domicile in Hong Kong, lawful presence in Hong Kong is required, and a person's presence is presumed to be lawful, unless and until the contrary is established. To acquire a domicile outside Hong Kong, whether or not the presence is lawful by the laws of that country is one of the factors to be considered by the Hong Kong courts.

(c) The intention required to acquire a domicile of choice

4.97 In Hong Kong, the present intention required for acquiring a domicile of choice is the intention to reside in the country concerned permanently or indefinitely. This is the same as the position in India, Ireland, Malaysia, Manitoba,[390] Singapore and the United Kingdom. In Australia, however, the requirement is that the person intends to make his home in the country in question indefinitely, while that in New Zealand is to intend to live there indefinitely. In South Africa, it is the intention to settle there indefinitely, an approach recommended by the English and Scottish Commissions. These are the possible options for Hong Kong to consider.

4.98 Under the existing law, there must be an intention to reside permanently in a place before a person can acquire a new domicile according to some older authorities.[391] This means that even a vague possibility of moving to another place would prevent a person from acquiring a domicile. This stringent requirement has been criticized as unrealistic[392] since it may well mean that "no man would ever have a domicile at all, except his domicile of origin"[393]. What is common among the new provisions in Australia, New Zealand and South Africa is that, relying on the more recent authorities[394], the requisite intention is to intend to make a home[395] in the country concerned indefinitely. This "indefinitely" criterion would make the residence requirement more realistic. It also reflects the view of the recent authorities that a contingent move to another country may have different consequences according to the nature of the contingency. If the contingency is clearly foreseen and reasonably anticipated, such as the termination of a contract of employment,[396] this may prevent the requisite intention from being established. In contrast, if it is uncertain and unlikely to occur, such as making a fortune,[397] this would not hinder a person from forming the required intention.

4.99 Of the three options, we favour the Australian approach: an intention to make a home in the country concerned indefinitely. This is because the concept of domicile is related to a person's home. We think this approach better captures the essence of the concept, can be more readily understood and is more straightforward to operate. In addition, the concept of home has also been adopted in the case of children's domicile. We note that the United Kingdom Law Commissions also recommended this approach in their consultation paper. They were concerned, however, that such a test might preclude an itinerant, who intended to stay in a country but without establishing a fixed residence in any one place, from obtaining a domicile there. The Commissions therefore adopted the test of "intending to settle in a country indefinitely".[398] We note the Law Commissions' concern, but believe that an itinerant can establish his intention to make a home in a country, even though he wishes to wander within it without staying permanently in any one place. We prefer to apply a test of "making a home", rather than "settling", which we consider less precise. In addition, the concept of "settling" has its own technical meaning in para 1(5) of Schedule 1 to the Immigration Ordinance (Cap 115).[399] This is a contentious area, and the Hong Kong Court of Final Appeal has recently considered the constitutionality of the additional requirement in para 1(5)(b) on an applicant for permanent residency that there has been no limit on his stay in Hong Kong.[400] The court held that the requirement was unconstitutional. To avert complication, we are of the view that the concept of "settling" should be avoided in the context of domicile.

Recommendation 7

We recommend that the requisite intention for a person of full age and capacity to acquire a domicile should be that the individual intends to make a home in the country[401] concerned for an indefinite period.

4.100 Under the existing Hong Kong law, declarations as to intention are considered in determining a change of domicile, but they must be weighed in terms of the persons to whom, the purposes for which, and the circumstances in which, they are made.[402] They must further be supported and carried into effect by conduct in line with the declared expressions.[403] Hence, the extent to which the courts relied on declarations of intention in deciding a person's domicile in reported cases varied. The courts are usually suspicious of declarations which refer in terms to "domicile" because the declarant is thought unlikely to have understood the concept.[404]

4.101 The South African Law Commission observed that such a declaration would eliminate any difference of opinion as to the intention of the person in question.[405] The Commission concluded, however, that the potential advantages of relying on declarations were outweighed by the potential disadvantages. The Commission was concerned that an individual might use a declaration wrongly to his advantage, while the surrounding circumstances indicated a position contrary to the declaration.

4.102 We share the view that a declaration on domicile should not be conclusive, but should be only one of the factors to be considered. The court should also look at the conduct of the person concerned and all the circumstances, and should not attach undue weight to a declaration. The existing law should be maintained.

(d) Whether a presumption as to intention is needed

4.103 Manitoba is the only jurisdiction which has created a presumption as to intention: a person is presumed to have the intention to reside indefinitely where his principal home is, subject to evidence of a contrary intention.[406] Hong Kong may consider whether or not a similar presumption is needed.

4.104 A change of domicile, at least so far as an adult is concerned, should be reflected in aspects of that person's life which manifest his change of intention. We think it more appropriate to review and analyse the circumstances of the individual's life, instead of relying on a presumption. A presumption may make the task of determining a person's domicile easier, without the burdensome need of analysing his life history, but we are concerned that a presumption may lead to absurdity in some cases. Even though the presumption is rebuttable, we believe on balance that the risk of injustice outweighs the benefits of having a presumption.

(e) Whether the doctrine of revival of domicile of origin should be replaced by the continuance rule

4.105 A number of jurisdictions (Australia, Manitoba, India, New Zealand and South Africa) have abolished the doctrine of revival of domicile of origin. In these jurisdictions, a person's domicile continues until he acquires another one. The English and Scottish Law Commissions also recommended abolition and the adoption of the continuance rule. Jurisdictions which have retained the doctrine of revival of domicile of origin include Ireland, Malaysia, Singapore and the United Kingdom. Hong Kong should consider whether the doctrine of revival of domicile of origin should be replaced by the continuance rule.

4.106 We have recommended earlier that the doctrine of domicile of origin should be repealed; the concept of its revival will therefore disappear automatically. The question is whether there should be a replacement concept. All the jurisdictions which have abolished the doctrine of revival have adopted the continuance rule: a person's domicile continues until he acquires anther one. The United Kingdom Law Commissions also recommended this rule. We echo the Law Commissions' opinion that the rule has merits which weigh strongly in its favour: (a) it simplifies the law by obviating the need to provide rules for abandonment; (b) it is consistent with other jurisdictions; (c) it ensures that a person is at least domiciled in a place where he has once lived; (d) it is a simpler concept than the doctrine of revival; and (e) it removes the acute artificiality of the doctrine of revival.[407]

4.107 Among the jurisdictions which have adopted the continuance rule, there are some variations in their relevant provisions. Australia[408] and Manitoba[409] have similar provisions: the domicile a person has at any time continues until he acquires a different domicile. In India, a new domicile continues until the former one has been resumed or another has been acquired.[410] There are two provisions in New Zealand on this. First, the domicile a person has immediately before becoming capable of having an independent domicile continues until he acquires a new domicile of choice under section 9 of the Domicile Act.[411] Secondly, a new domicile obtained under section 9 continues until a new one is acquired under the same section.[412] The South African version is that no person loses his domicile until he has acquired another domicile, whether by choice or by operation of law.[413] Finally, the draft bill attached to the United Kingdom Law Commissions' report provides that an adult's domicile of choice, or a domicile acquired by a mentally incapable person upon the restoration of capacity, continues until he obtains another domicile.[414] It seems, however, that the continuance rule applies to these two types of domicile only.

4.108 We do not see the need to have two separate provisions, as is the case in New Zealand. In our view, the provisions in Australia, Manitoba and South Africa should have similar effect. We think it useful to include the words "whether by choice or by operation of law", as in the South African provision, so as to make clear that the provision covers an acquisition by operation of law, such as the closest connection test in the case of children.

Recommendation 8

We recommend that the domicile a person has at any time should continue until he acquires a different one, whether by choice or by operation of law.

Domicile of married women

Australia

4.109 At common law, the domicile of a married woman follows, and changes with, that of her husband until the marriage is dissolved by divorce or death. This is still the case even where the couple is separated informally[415] or according to a court order.[416] The Family Law Act 1975 and the Marriage Act 1961[417] abolished the concept of dependent domicile of married women for the purposes of these Acts, while the Domicile Act 1982 (Commonwealth) discarded this concept for all purposes.[418] A married woman can now acquire a domicile of her choice. Her domicile is determined independently, without relying on any presumption that her domicile coincides with her husband's.[419]

4.110 A person's domicile at any time before the commencement of the Domicile Act 1982 (Commonwealth) will be determined as if the Act had not been enacted.[420] The implication is that the abolition of the married women's domicile of dependency is not retrospective. Thus, a question which arises in proceedings in 2003 as to a married woman's domicile in 1979[421] is determined "as if the Act had not been enacted", and the common law rule of domicile of dependency still applies. At any time after the commencement of the Domicile Act 1982 (Commonwealth), the domicile of a married woman will be determined as if the Act had always been in force.[422]

Canada

4.111 In Manitoba, section 3(b) of the Domicile and Habitual Residence Act 1983 expressly abolished the common law rule which imposed a married women's domicile of dependence, but nothing in the Act affects a person's domicile at any time before its commencement.[423]

India

4.112 The common law rule that a woman by marriage acquires the domicile of her husband, and during the marriage her domicile follows his, is reflected in legislation.[424] There are, however, two exceptions where a wife can obtain her own domicile: if she is separated from her husband under a court decree; or if her husband is undergoing a sentence of transportation.[425] The concept of domicile of dependence of married women has been severely criticised in India:

Ireland

4.113 The common law rule which imposed a married woman's domicile of dependence was abolished on 2 October 1986.[427] A married woman's domicile is now determined by referring to the same factors which apply to any other person capable of acquiring an independent domicile.[428] This applies to every marriage, irrespective of where and under what law the marriage takes place and irrespective of the parties' domicile at the time of the marriage.[429]

4.114 A person's domicile at any time before or after 2 October 1986 is determined respectively as if the Act had not been passed, or had always been in force.[430] The effect is that a woman who married before the commencement date of the Act will not retain her husband's domicile as her domicile of choice after that date unless she fulfills the requirements of residence and intention. This ensures that there is no "hangover" from her previous domicile of dependency when determining her domicile after the commencement date.[431] Instead of simply adopting a wife's previous domicile of dependence as her domicile of choice, her domicile at any time after the commencement date will be determined as if the Act "had always been in force", as in the case of any other independent person.

Malaysia

4.115 The rule on domicile of dependence of married women still applies in Malaysia. Rigby J, a Penang judge, held that the domicile of a married woman was the same as her husband's while the marriage subsisted, even where the parties were living apart.[432]

New Zealand

4.116 The Domicile Act 1976 provides that, on or after 1 January 1981,[433] every married person is capable of having an independent domicile. This is the case regardless of where the marriage was solemnised and regardless of the law under which the marriage was solemnised, and whatever the domicile of the parties to the marriage at the time of the marriage.[434] The Act also expressly abolishes the common law rule under which a married woman acquires her husband's domicile and is incapable of having another domicile during the subsistence of the marriage.[435]

4.117 The domicile of any person at any time before 1 January 1981 is to be determined as if the Act had not been passed, while that at any time after that date shall be determined as if the Act had always been in force.[436] The position is therefore similar to that in Australia.

Singapore

4.118 With effect from 1 June 1981, section 47 of the Women's Charter (Cap 353)[437] abolished the concept of the married women's domicile of dependency. It also provided that a married woman's domicile will be determined by reference to the same factors as those applicable to any other independent person. However, where a woman who married before that date had her husband's domicile by dependence, she will retain that as her domicile of choice (if it is not also her domicile of origin) until it is replaced by the acquisition or revival of another domicile on or after that date.[438] Section 47 is almost identical to section 1 of the Domicile and Matrimonial Proceedings Act 1973 in the United Kingdom.

South Africa

4.119 As discussed above under the heading "Domicile of adults", every 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.[439] In other words, a married woman is also capable of acquiring a domicile of her choice, and her domicile does not follow her husband's upon marriage.

4.120 The Domicile Act 1992 does not affect any right, capacity, obligation or liability acquired, accrued or incurred by virtue of the domicile which a person had, and the legality of any act performed at any time prior to the commencement of the Act.[440] Any proceedings pending in a court of law at the commencement of the Act shall be proceeded with and finalised as if the Act had not been passed.[441] This ensures that the Act does not have retrospective effect. The domicile of a married woman at any time before the commencement date of the Act shall be determined as if the Act had not been enacted, and the common law rule of domicile of dependency still applies.

The United Kingdom

4.121 The Domicile and Matrimonial Proceedings Act 1973 provides that at any time after 1 January 1974[442] the domicile of a married woman shall be ascertained by referring to the same factors as in the case of any other person capable of acquiring a domicile of choice.[443] The concept of domicile of dependence of married women is abolished.

4.122 Where a woman was married before 1 January 1974 and had her husband's domicile by dependence, she will retain that domicile (as her domicile of choice if it is not also her domicile of origin) until it is changed by the acquisition or revival of another domicile on or after that date.[444] The effect is that if a married woman had before 1974 resided in a country other than that of her husband's domicile, she would obtain a new domicile of choice on 1 January 1974 automatically, provided that she had the required intention. Where she had not so resided, she would then retain her domicile of dependence which could only be changed if she abandoned it. If she abandons it, she will acquire a domicile of choice, or her domicile of origin will revive.

4.123 The English and Scottish Law Commissions considered that this transitional provision for abolishing the married women's domicile of dependency was unsatisfactory and artificial. They preferred the Australian approach and recommended that that should be followed.[445]

Options and conclusions

4.124 Only two of the jurisdictions which we have examined retain the common law rule imposing a domicile of dependency on married women: India and Malaysia. All the other jurisdictions have abolished the rule.

4.125 We have considered whether the Sex Discrimination Ordinance (Cap 480) can rectify the anomalies created by the married woman's domicile of dependency. Cap 480 was enacted in 1995 in order to render unlawful certain types of discrimination based on sex, marital status and pregnancy, and to provide for the establishment of the Equal Opportunities Commission. It is modelled on the Sex Discrimination Act 1975 in England.[446] Nevertheless, Cap 480 does not provide blanket protection against discrimination, but only outlaws sexual harassment and certain types of discrimination in specified fields such as employment, partnerships, trade unions, education, facilities, services, barristers, clubs, etc. It would therefore seem that Cap 480 does not apply to the determination of a person's domicile.

4.126 As discussed in Chapter 2, the combined effect of Article 8 (which provides that the laws previously in force in Hong Kong will be maintained except for any that contravene the Basic Law) and Article 25 of the Basic Law (which provides that all Hong Kong residents are equal before the law) may have already impliedly repealed the common law rule on the married woman's domicile of dependency. There are, however, no local cases on the matter, though there is case law in Ireland on the equivalent provision, confirming the unconstitutionality of the common law rule. To put the matter beyond question, we recommend abolishing this common law rule.

4.127 With effect from the commencement of section 11C of the Matrimonial Causes Ordinance (Cap 179) on 24 June 1996, a married woman can have an independent domicile for the purposes of the court's jurisdiction in respect of divorce, nullity, judicial separation, etc. If, in the light of our recommendation, the common law rule on married women's domicile of dependency is now abolished for all purposes, there will be a second cut-off date. To avoid the confusion of having two cut-off dates relating to a single matter, we have considered whether the general abolition of the common law rule should be backdated to 24 June 1996. To do so, however, would have an adverse impact on those who have made their plans in the light of the law in force at the time. With this in mind, we do not think that it would be appropriate to backdate the abolition.

4.128 As the abolition should not have retrospective effect, we have considered the two alternative types of transitional provisions adopted in the jurisdictions which have abolished the rule. The first is that a person's domicile at any time before or after the commencement date of the relevant legislation is determined respectively as if the legislation had not been passed, or had always been in force. This is the case in Australia, Manitoba, Ireland, New Zealand, South Africa and under the English and Scottish Law Commissions' recommendations. The second type (as in Singapore and the United Kingdom) is that where a woman was married before the commencement date of the relevant legislation, she will retain the domicile of dependency until it is changed by the acquisition or revival of another domicile either on or after that date.

4.129 We will generally deal with transitional provisions under a separate heading for this purpose in a latter part of this chapter. As far as the domicile of married women is concerned, we agree with the English and Scottish Law Commissions' view that the second type of transitional provision is unsatisfactory and artificial since a married woman's domicile of dependency would continue as her domicile of choice even after the abolition until she acquires a new domicile. We do not think this is a satisfactory solution. The following example illustrates the way in which we believe transitional problems should be resolved (i.e. adopting the Australian model, as also recommended by the Law Commissions in the United Kingdom).

On the day the proposed reforms come into operation, W's domicile should be determined without reference to the fact that at common law she acquired her husband's domicile upon marriage. Accordingly, W would be domiciled in Hong Kong, since there is no evidence that she ever was present in a country with the intention of making her home there indefinitely. Under a provision following the style of the Domicile and Matrimonial Proceedings Act 1973, W would likely be domiciled in France; because, upon the coming into operation of the reforms, her French domicile would be presumed to continue and would not be replaced until she left France and settled in another country.

Recommendation 9

We recommend that the domicile of dependency of married women should be abolished.

Domicile of the mentally incapacitated[447]

Australia

4.130 The Domicile Act 1982 (Commonwealth) expressly states that it does not change the common law relating to the mentally incapable.[448] Any person who does not have the mental capacity to form the required intention to acquire a domicile cannot acquire an independent domicile.[449] Where a person's mental incapacity commences during his infancy, his domicile of dependency continues even after the age of majority is reached.[450] If, on the other hand, his incapacity occurs after reaching the age of majority, the domicile he last had before he became incapable remains unchanged so long as he continues to be mentally incapable.[451] It seems that his domicile cannot be changed by his guardian.[452]

Canada

4.131 A person who is born mentally incompetent, as long as he is mentally incompetent or is a child, has a domicile determined according to the rules on determining children's domicile.[453] In other words, his domicile of dependency persists so long as he is mentally incompetent or is a child. On the other hand, any one who becomes mentally incompetent at any time after birth retains, as long as he is mentally incompetent, the domicile he had immediately before his becoming mentally incompetent.[454]

India

4.132 An insane person cannot acquire a new domicile other than by dependency on another person's domicile.[455] The Indian Succession Act 1925 does not make it clear who "another person" is. It can, however, be argued that the "another person" is (a) the parent on whom he is dependent if the insane person is a minor; and (b) the husband if the insane person is a married woman.[456] Where the insane person is an adult and has a guardian, that guardian is "another person" for the purposes of the Act.[457] It has been argued that Indian courts should not follow the English decision[458] which held that the domicile of an adult insane person froze once he became insane.[459]

Ireland

4.133 If a person's mental incapacity occurs during his infancy, his domicile of dependency continues even after reaching full age.[460] Where his incapacity occurs after reaching full age, however, the domicile he last had before the incapacity commenced applies so long as he remains in that condition.[461]

Malaysia and Singapore

4.134 In Malaysia and Singapore, the domicile of persons suffering from mental incapacity is governed by the common law of England.[462] In other words, where a person's mental incapacity commences before the age of majority, his domicile continues to be determined as if he were a child even after he attains full age.[463] On the other hand, if his incapacity commences after the age of majority, the domicile he last had before the commencement of his incapacity persists, so long as he remains in that condition.[464]

New Zealand

4.135 A person who is not capable of forming the required intention to live indefinitely in a country cannot acquire an independent domicile.[465] It is a question of fact as to whether a person is capable of

Hong Kong Law Reform Commission

Chapter 4 - The law in other jurisdictions, - options for reform and recommendations

Domicile of children

Australia

Canada

India

Ireland

Malaysia

New Zealand

Singapore

South Africa

United Kingdom

Options

Conclusions

(a) Abolishing the existing rules

(b) Adopting the test of closest connection and associated presumptions

(c) Other issues

Domicile of adults

Australia

Canada

India

Ireland

Malaysia

New Zealand

Singapore

South Africa

United Kingdom

Options and conclusion

(a) Who is capable of acquiring a domicile of choice

(b) The act required to acquire a domicile of choice

(c) The intention required to acquire a domicile of choice

(d) Whether a presumption as to intention is needed

(e) Whether the doctrine of revival of domicile of origin should be replaced by the continuance rule

Domicile of married women

Australia

Canada

India

Ireland

Malaysia

New Zealand

Singapore

South Africa

The United Kingdom

Options and conclusions

Domicile of the mentally incapacitated[447]

Australia

Canada

India

Ireland

Malaysia and Singapore

New Zealand