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Hong Kong Law Reform Commission |
Chapter 3 - Should domicile be retained as a general connecting
factor?
5.1 Domicile should be retained as a general connecting
factor, but the existing rules for determining a person's domicile should be
modified as recommended in this Paper. (Recommendation
1)
Chapter 4 - The law in other jurisdictions, options for
reform and recommendations
5.2 We recommend that the concept of
domicile of origin and that of domicile of dependency should be discarded.
(Recommendation 2)
5.3 We recommend that there should be no
differentiation between legitimate and illegitimate children in determining
their domicile. (Recommendation 3)
5.4 We recommend the following
rules for determining a child's domicile:
(a) a child's domicile should be in the country 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. (Recommendation
4)
5.5 We recommend that any person who is not mentally incapacitated
may acquire a domicile of his choice once he attains the age of 18.
(Recommendation 5)
5.6 We recommend that the act necessary for a
person of full age and capacity to acquire a domicile should be presence in the
country 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. (Recommendation
6)
5.7 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 concerned for an indefinite period.
(Recommendation 7)
5.8 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. (Recommendation 8)
5.9 We recommend that
the domicile of dependency of married women should be abolished.
(Recommendation 9)
5.10 We recommend that:
(a) upon reaching the age of majority, a mentally incapacitated person should be domiciled in the country with which he is most closely connected;
(b) a mentally incapacitated adult, on recovery of his capacity, should retain the domicile which he last held before his recovery;
(c) the relevant provision should be phrased so as to cover not only the
mentally incapacitated, but also persons in a comatose, vegetative or
semi-vegetative state, and any other person who for one reason or another is not
able to form the required intention. (Recommendation 10);
5.11 We
recommend that the normal civil standard of proof on a balance of probabilities
should apply in all disputes about domicile. (Recommendation
11)
5.12 We recommend that a person who is present in a federal or
composite state and intends to make his home there indefinitely should, if not
held to be domiciled in any law district within that state under the general
rules, have his domicile in the law district with which he is for the time being
most closely connected. (Recommendation 12)
5.13 We recommend
that:
(a) the recommended legislation should not have retrospective effect;
(b) a person's domicile at any time before the commencement date of the recommended legislation should be determined as if the legislation had not been passed;
(c) his domicile at any time after that date should be determined as if the
recommended legislation had always been in force. (Recommendation
13)
5.14 We recommend:
(a) that the recommended legislation on the rules for determining natural persons' domicile should be as comprehensive as possible;
(b) that the recommended legislation should set out the following general rules on domicile:
- no person can be without a domicile;
- no person can at the same time for the same purpose have more than one domicile;
- for the purposes of a Hong Kong rule of the conflict of laws, the question of where a person is domiciled is determined according to Hong Kong law;
(c) a
saving provision for the existing common law rules which are not inconsistent
with the new statutory rules. (Recommendation 14)
5.15 We hope that the recommendations in this Paper will improve this complex and confusing area of common law by simplifying the concept of domicile and making the ascertainment of a person's domicile easier. Annex 2 tabulates the current rules and the proposed rules for comparison. In practical terms, we do not think that the recommendations would change the domicile of many people with the exception of married women's domicile. Some married women or recently divorced women would have a different domicile under our proposals than they would under the existing law. This may, however, already be the case on account of Article 8 of the Basic Law. It is important, we feel, to resolve this matter clearly, remove any uncertainty, deal with transitional problems expressly, and eliminate a discriminatory rule from Hong Kong law once and for all.
5.16 Another major change is that on the domicile of
children. The existing rules are very much based on the Victorian idea of the
father being the pater familias, and we believe that our proposals would
more closely reflect modern realities.