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Annex 1 - Comparison Table of the Rules for
Determining a Person's Domicile
(This table tabulates the current rules for determining a
person's domicile in Hong Kong, Australia,
Canada, India, Ireland,
Malaysia, New Zealand, Singapore, South Africa and the United Kingdom.)
|
|
|
Married women's Domicile
|
Domicile of the mentally incapacitated
|
Standard of proof
|
Domicile in a federal or composite
state
|
Transitional provisions
|
|
Hong Kong
|
Domicile ("D") of origin
legitimate: father; illegitimate: mother
adopted child:
uncertain[532]
foundling: D in the country in which it was
found[533]
D of dependency
legitimate: father; illegitimate: mother
adopted child: uncertain (see above)
legitimated child: D of
father[534]
|
at 18: capable of acquiring D of choice
D of choice: residence + intention to reside permanently or
indefinitely
abandon D of choice by ceasing to reside + ceasing to intend to reside
there permanently or indefinitely
revival of D of origin
|
married women's dependent D still applies
|
incapacity occurs during infancy: D of dependency continues even after
the age of majority
incapacity occurs after the age of majority: D last had before incapacity
continues so long as he remains in that condition
|
higher standard for displacing D of origin
|
no specific provision
|
no specific provision
|
|
|
|
Married women's Domicile
|
Domicile of the mentally incapacitated
|
Standard of proof
|
Domicile in a federal or composite
state
|
Transitional provisions
|
|
|
D of origin
legitimate: father; illegitimate:
mother;[536] foundling: D in the
country in which it was
found[537]
parents live separately/one of them dies: D of the parent with whom the
child has home[538]
adopted children: see below
D of dependency
legitimate: father; illegitimate:
mother;[539]
parents live separately/one of them dies: D of the parent with whom the
child has home and changes with
it[540]
- until the child begins to have his principal home with the other parent,
or his parents resume or start living
together[541]
adopted by 2 parents: as if he were born in wedlock of those parents
[542]
adopted by 1 parent: D of that
parent[543]
|
at 18 or married: capable of acquiring D of
choice[544]
D of choice: lawful presence + intention to make his home
indefinitely[545]
abandon by leaving the country + ceasing to intend to reside there
indefinitely
no revival of D of origin: existing D (D by choice or dependency) continues
until a new D is acquired[546]
|
married women's dependent D
abolished[547]
|
the mentally incapable cannot acquire D of
choice[548]
incapacity occurs during infancy: D of dependency continues even after the
age of majority
incapacity occurs after the age of majority: D last had before incapacity
continues so long as he remains incapable
|
same standard whether the D to be displaced is a D of origin or D of
choice: balance of
probabilities [549]
|
D in a union: also D in the country therein with which he has the
closest connection [550]
|
D at any time before the commence-ment of the Act determined as if the
Act had not been
enacted[551]
D at any time after the commence-ment of the Act determined as if the Act
had always been in force[552]
|
|
|
parents with common D: D of the
parents[554]
parents w/o common D: D of the parent with whom the child
resides[555]
other cases: D of the place where the child normally & usually
resides[556]
|
anyone except children and the mentally incompetent: capable of
acquiring D of choice[557]
D of choice: principal home + intention to
reside[558]
presumption as to intention to reside indefinitely where the principal home
is[559]
no revival of D of origin: existing D (D by choice or dependency) continues
until a new one is
acquired[560]
|
married women's dependent D
abolished[561]
|
born mentally incompetent, and is still so or is a child: D determined
according to the rules on determining children's
D[562]
becomes mentally incompetent after birth: as long as remaining incompetent,
retains D he had prior to his becoming
so[563]
|
no specific provision
|
no specific provision
|
nothing in the Act affects a person's D at any time before the Act's
commence-ment[564]
nothing in the Act affects jurisdiction of any court in any proceedings
commenced before the commence-ment of the
Act[565]
|
|
India
|
D of origin
legitimate: father[566];
illegitimate: mother[567];
posthumous: father's D at his
death[568];
foundling: submitted that D in the country in which it was
found[569]
D of dependency
follows D of the parent from whom the D of origin is derived (with 3
exceptions)[570]
D of child with parents separated: no
authority[571]
adopted child: probably D of adoptive
parent[572]
|
at 18: capable of acquiring D of
choice[573]
D of choice: residence + intention to reside permanently or
indefinitely[574]
abandon by ceasing to reside + ceasing to intend to reside there
indefinitely
no revival of D of
origin[575]
|
married women's dependant D still
applies[576]
2 exceptions: (1) separated from her husband under a court decree; (2) her
husband is undergoing a sentence of
transportation[577]
|
cannot acquire a new D except D of dependence on another
person[578]
"another person" is not defined
|
no specific provision; (higher standard for displacing D of origin at
common law may still apply)
|
no specific provision
|
no specific provision
|
|
Ireland
|
D of origin
legitimate: father; illegitimate: mother;
foundling: uncertain but generally accepted that D in the country it is
found
D of dependency
legitimate: father; illegitimate: mother
legitimated child: no authority
adopted child: uncertain
legitimate child who has parents living apart and who has home with mother
but not father: D of
mother[579]
|
at 18 or married: capable of acquiring D of choice
[580]
D of choice: residence + intention to reside permanently or
indefinitely
abandon by ceasing to reside + ceasing to intend to reside there
indefinitely
revival of D of origin
|
married women's dependent D
abolished[581]
D at any time before or after the commencement of the Act determined as if
the Act had not been passed or had always been in force
respectively[582]
|
incapacity occurs during infancy: D of dependency continues even after
reaching full age
incapacity occurs after reaching full age: the D last had before incapacity
continues so long as he remains incapable
|
no specific provision; (higher standard for displacing D of origin at
common law may still apply)
|
no specific provision
|
no specific provision
|
|
Malaysia
|
D of origin
legitimate: father; illegitimate: mother
adopted child:
uncertain[583]
foundling: D in the country in which it was found
D of dependency
legitimate: father; illegitimate: mother
adopted child: uncertain (see above)
|
at 18 : capable of acquiring D of
choice[584]
D of choice: residence + intention to reside permanently or
indefinitely
abandon by ceasing to reside + ceasing to intend to reside there
indefinitely
revival of D of origin
|
married women's dependent D still applies
|
incapacity occurs during infancy: D of dependency continues even after
the age of majority
incapacity occurs after the age of majority: D last had before incapacity
continues so long as he remains incapable
|
no specific provision; (higher standard for displacing D of origin at
common law may still apply)
|
no specific provision
|
no specific provision
|
|
New Zealand
|
child = under 16 and
unmarried[585]
parents living together: D of
father[586]
parents not living together but child lives with father: D of
father[587]
parents not living together and child does not live with father: D of
mother[588]
adopted child: D of adoptive parent(s) & thereafter as if born to the
adoptive parents[589]
foundling: parents deemed to be alive and domiciled in the country in which
it was found[590]
|
16 or sooner marrying: capable of acquiring independent
D[591]
new D: in a country and intends to live indefinitely
there[592]
existing D continues until acquiring another one by virtue of section
9[593]
no revival of D of
origin[594]
|
married women's dependent D
abolished[595]
|
not capable of forming the required intention to live indefinitely in a
country: cannot acquire an independent D
[596]
becomes incapable of having an independent D because of his mental
incapacity before 16: the D he last had before ceasing to be a child continues
until he is no longer mentally incapable and acquires a new
D[597]
has been capable of having an independent D but becomes incapable of doing
so as a result of mental incapacity: retaining the D he had immediately before
becoming mentally incapable until he becomes so capable again and in fact
acquires another D[598]
|
same standard in all disputes about D: balance of
probabilities [599]
|
ordinarily resides + intends to live indefinitely in a union without
forming an intention to live indefinitely in any of the countries therein:
deemed to have intention to live indefinitely
in[600]
D in a country forming part of a union: also D in the
union[601]
|
D at any time before the commence-ment determined as if the Act had not
been passed[602]
D at any time after the commence-ment determined as if the Act had always
been in force[603]
|
|
|
|
Married women's Domicile
|
Domicile of the mentally incapacitated
|
Standard of proof
|
Domicile in a federal or composite
state
|
Transitional provisions
|
|
Singapore
|
D of origin
legitimate: father; illegitimate: mother
foundling: D in the country in which it was found
D of dependency
legitimate: father; illegitimate: mother
adopted children: D of adoptive
parent(s)[604]
|
at 21: capable of acquiring D of
choice[605]
D of choice: residence + intention to reside permanently or
indefinitely
abandon by ceasing to reside + ceasing to intend to reside there
indefinitely
revival of D of origin
|
married women's dependent D
abolished[606]
women married before the commencement of the Act retain D of dependency
until it is changed by acquisition or revival of another D either on or after
that date[607]
|
incapacity occurs during infancy: D of dependency continues even after
the age of majority
incapacity occurs after the age of majority: D last had before incapacity
continues so long as he remains incapable
|
no specific provision; (higher standard for displacing D of origin at
common law may still apply)
|
no specific provision
|
no specific provision
|
|
S Africa
|
D at the place with which he is most closely
connected[608]
but if has his home with parents/one of them: D is the parental
home[609]
"parents" includes adoptive parents and parents who are not married to each
other[611]
|
at 18: capable of acquiring D of choice regardless of sex or marital
status[612]
D of choice: lawful presence + intention to settle there for an indefinite
period[613]
existing D continues until acquiring another one by choice or by operation
of law[614]
no revival of D of
origin[615]
|
ability to acquire D of choice regardless of the sex or marital status
of a person[616]
|
not having the mental capacity to make a rational choice: not competent
to acquire a D of
choice[617]
D at the place with which he is most closely
connected[618]
|
same standard in all disputes about D: balance of
probabilities [619]
|
no specific provision
|
the 1992 Act does not affect any right, capacity, etc acquired by virtue
of the D which a person had and the legality of any act performed at any time
prior to the commence-ment of the
Act[620]
proceedings pending in a court at the commence-ment of the Act to continue
as if the Act had not been
passed[621]
|
|
|
|
Married women's Domicile
|
Domicile of the mentally incapacitated
|
Standard of proof
|
Domicile in a federal or composite
state
|
Transitional provisions
|
|
U.K.
(existing position)
|
D of origin
legitimate: father; illegitimate: mother
adopted child: D of adoptive
parent[622]
foundling: D in the country in which it was
found[623]
D of dependency
legitimate: father; illegitimate: mother
adopted child: D of adoptive
parent[624]
legitimate/legitimated child with parents living apart and has home with
mother but not father: D of
mother[625]
legitimated child: D of
father[626]
|
at 16 or married
thereunder[627]: capable of
acquiring D of choice
D of choice: residence + intention to reside permanently or
indefinitely
abandon by ceasing to reside + ceasing to intend to reside there
permanently or indefinitely
revival of D of origin
|
married women's dependent D
abolished[628]
women married before the commencement of the Act retain D of dependency
until it is changed by acquisition or revival of another D either on or after
that date[629]
|
disorder pre-dates 16: D to be determined as if under 16 and unmarried
(even in his adulthood)
disorder post-dates 16 or marriage under that age: retains, while remaining
in that condition, the D he had immediately before disorder
in Scotland, there is little
authority[630]
|
higher standard for displacing D of origin
|
no specific provision
|
no specific provision
|
|
(Law Commissions' proposal)
|
D in the country with which he is most closely connected
parents D in the same country + child has home with either or both of them,
child presumed to be most closely connected with that country
parents D in different countries + child has home with one of them, child
presumed to be most closely connected with the country in which the parent with
whom he has home is domiciled
discard D of origin and D of dependency
|
at 16 (with no exception for child married earlier): capable of
acquiring D of choice
D of choice: presence (but not "residence") + intention to settle (but not
"reside") indefinitely
repeal the doctrine of revival of D of origin
|
no retrospective effect
repeal section 1(2) of the Domicile and Matrimonial Proceedings Act
1973
|
at 16, D in the country with which he is most closely connected
a question of fact as to whether or not a person has the mental capacity to
acquire a D of choice
an adult lacking mental capacity, on regaining the capacity, retain D he
had before regaining the capacity
|
balance of probabilities for all disputes on D
|
present in a federal or composite state + intention to settle there
indefinitely: D in the country therein with which he is most closely
connected
|
no retrospective effect
the new legislation applies to any time before coming into force but only
for determining where, at any time after it comes into force, a person is
domiciled
|
[532] It is uncertain
whether section 13 of the Adoption Ordinance (Cap 290) would cover the issue of
an adopted child's domicile. But it has been suggested that it would be
reasonable in principle to say that during the life-time of an adoptive parent
the adopted child's domicile was the same as and changed with that parent's
domicile.
[533] This rule is generally
accepted, though there is no direct authority to support it.
Dicey and
Morris on the Conflict of Laws, 13th Ed (Sweet and Maxwell, 2000)
at para 6-029.
[534] No authority can be
found on this point. But see
Dicey and Morris on the Conflict of Laws
(13th Ed, Sweet and Maxwell, 2000) at para 6-092.
[535] In Australia, there is
an (almost) uniform Domicile Act. Domicile Acts in almost identical terms have
been passed in each State, the Northern Territory and the Commonwealth. They
are cited collectively as the Domicile Acts and reference is usually made to the
provisions of the Commonwealth Act. The Domicile Acts have changed the common
law significantly, but have not completely replaced it.
[536] Note the possible
effect of the broadly similar legislation on the status of children:
"the
relationship between every person and his father and mother shall be determined
irrespective of whether the father and mother are, or have been, married to each
other". It may be that an ex-nuptial child, like a nuptial child, takes the
domicile of its father at birth regardless of marital status.
[537] Re McKenzie
(1951) 51 SRNSW 293.
[538] Section 9(1) of the
Domicile Act 1982, Australia (Commonwealth) ("the 1982 Act").
[539] Note the possible
effect of the broadly similar legislation on the status of children:
"the
relationship between every person and his father and mother shall be determined
irrespective of whether the father and mother are, or have been, married to each
other". It may be that an ex-nuptial child, like a nuptial child, takes the
domicile of its father at birth regardless of marital status.
[540] Section 9(1) of the
1982 Act.
[541] Section 9(3) of the
1982 Act.
[542] Section 9(2)(a) of the
1982 Act.
[543] Section 9(2)(b) of the
1982 Act.
[544] Section 8 of the 1982
Act.
[545] Section 10 of the 1982
Act.
[546] Section 7 of the 1982
Act.
[547] Section 6 of the 1982
Act.
[548] Section 8(2) of the
1982 Act.
[549] Section 12 of the 1982
Act.
[550] Section 11 of the 1982
Act.
[551] Section 5(1) of the
1982 Act.
[552] Section 5(2)
of the 1982 Act.
[553] Only Manitoba has
comprehensive legislation on domicile. In other Canadian provinces and
territories, it is still a combination of the common law and some scattered
legislation which together lay down the rules for determining a person's
domicile.
[554] Section 9(1)(a) of the
Domicile and Habitual Residence Act 1983, Manitoba ("the 1983 Act"). This Act
is substantially similar to the Draft Model Act to Reform and Codify the Law of
Domicile adopted by the Uniform Law Conference in
1961.
[555] Section 9(1)(b) of
the 1983 Act.
[556] Section
9(1)(c) of the 1983
Act.
[557] Section 7 of the
1983 Act.
[558] Section 8(1) of
the 1983 Act.
[559] Section
8(2) of the 1983 Act.
[560] Sections 3(a) and 6 of
the 1983 Act.
[561] Section 3(b) of the
1983 Act.
[562] Section 10(1)
of the 1983 Act.
[563] Section
10(2) of the 1983
Act.
[564] Section 11(1) of the
1983 Act.
[565] Section 11(2)
of the 1983 Act.
[566] Section 7 of the
Indian Succession Act 1925 ("the 1925 Act").
[567] Section 8 of the 1925
Act.
[568] Section 7 of the 1925
Act.
[569] Paras Diwan and
Peeyushi Diwan,
Private International Law, Indian and English,
4th Ed, 1998, Deep & Deep Publications, at 155-156.
[570] Sections 14 and 17 of
the 1925 Act.
[571] It is submitted that
the child's domicile should be that of the parent who lives with the child under
a court order or
de facto. Paras Diwan and Peeyushi Diwan,
Private
International Law, Indian and English, 4th Ed, 1998, Deep &
Deep Publications, at 178.
[572] Paras Diwan and
Peeyushi Diwan,
Private International Law, Indian and English,
4th Ed, 1998, Deep & Deep Publications, at 176. See section 12
of the Hindu Adoptions and Maintenance Act 1956.
[573] Section 2(e) of the
1925 Act.
[574] Section 10 of the 1925
Act.
[575] Sections 9 and 13 of
the 1925 Act.
[576] Sections 15 and 16 of
the 1925 Act.
[577] Explanation to section
16 of the 1925 Act.
[578] Section 18 of the 1925
Act.
[579] Section 4(1) of the
Domicile and Recognition of Foreign Divorces Act 1986, Ireland. If a child's
domicile follows that of his mother by virtue of section 4(1), it will continue
to do so even after the child has ceased to have his home with her. It will not
change until the child makes his home with his father or the parents cease to
live apart. Section 4(2) provides that on the death of a mother of a child
whose domicile follows hers by virtue of section 4(1), the child's domicile will
be frozen as at the time of her death until the child has his home with his
father.
[580] Section 2 of the Age
of Majority Act 1985, Ireland.
[581] Section 1 of the
Domicile and Recognition of Foreign Divorces Act 1986,
Ireland.
[582] Sections 2 and
3 of the Domicile and Recognition of Foreign Divorces Act 1986
respectively.
[583] It is uncertain
whether section 9 of the Adoption Ordinance 1952 in Malaysia (not applicable to
Muslims) would cover the issue of an adopted child's domicile. But it was
argued that during the life-time of an adoptive parent the adopted child's
domicile was the same as, and changed with, that parent's domicile.
[584] Section 2 of the Age
of Majority Act 1971, Malaysia.
[585] Section 6(2) of the
Domicile Act 1976, New Zealand (“the 1976 Act”).
[586] Section 6(3) of the
1976 Act.
[587] Section 6(4) of the
1976 Act.
[588] Section 6(5) of the
1976 Act.
[589] Section 16(2)(f) of
the Adoption Act 1955, New Zealand.
[590] Section 6(6) of the
1976 Act.
[591] Section 7 of the 1976
Act.
[592] Section 9 of the 1976
Act.
[593] Sections 8 and 11 of
the 1976 Act.
[594] Section 11 of the 1976
Act.
[595] Section 5 of the 1976
Act.
[596] Section 7 of the 1976
Act.
[597] Sections 8 and 9 of
the 1976 Act.
[598] Sections 8
and 9 of the 1976 Act.
[599] Section 12 of the 1976
Act.
[600] (a) the country
forming part of the union where he ordinarily resides; (b) if he does not
ordinarily reside in any such country, the country where he is in; (c) if he
neither ordinarily resides nor is in any such country, the country where he was
last in: section 10 of the 1976 Act.
[601] Section 13 of the 1976
Act.
[602] Section 3 of the
1976 Act.
[603] Section 4 of
the 1976 Act.
[604] Tan Yock Lin,
Conflicts Issues in Family and Succession Law, 1993, Butterworths Asia,
at 153. This is because the Adoption of Children Act 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" (in Professor Tan's e-mail to the
author of this Paper dated 6 June 2001)
[605] Tan Yock Lin,
Conflicts Issues in Family and Succession Law, 1993, Butterworths Asia,
at 142.
[606] Section 47(1) of the
Women's Charter (Cap 353), Singapore.
[607] Section 47(2) of the
Women's Charter (Cap 353),
Singapore.
[608] Section 2(1)
of the Domicile Act 1992, South Africa (“the 1992 Act”).
[609] Section 2(2) of the
1992 Act.
[610] Section 2(3)
of the 1992 Act.
[611] Section
2(3) of the 1992 Act.
[612] Section 1(1) of the
1992 Act.
[613] Section 1(2) of the
1992 Act.
[614] Section 3(1)
of the 1992 Act.
[615] Section 3(2) of the
1992 Act.
[616] Section 1(1)
of the 1992 Act.
[617] Section
1(1) of the 1992 Act.
[618] Section 2(1) of the
1992 Act.
[619] Section 5 of the 1992
Act.
[620] Section 8(2) of the
1992 Act.
[621] Section 8(3)
of the 1992 Act.
[622] Sections 39(1) and (5)
of the Adoption Act 1976, with effect from the date of adoption or 1 January
1976, whichever is the later.
[623] This rule is generally
accepted, though there is no direct authority to support it.
Dicey and
Morris on the Conflict of Laws, 13th Ed (Sweet and Maxwell, 2000)
at para 6-029.
[624] Sections 39(1) and (5)
of the Adoption Act 1976, with effect from the date of adoption or 1 January
1976, whichever is the later.
[625] Section 4 of the
Domicile and Matrimonial Proceedings Act 1973, UK. This covers adopted
children.
[626] No authority can be
found on this point. But see
Dicey and Morris on the Conflict of Laws
(13th Ed, Sweet and Maxwell, 2000) at para 6-092.
[627] Section 3 of the
Domicile and Matrimonial Proceedings Act 1973, UK (being- necessarily- domiciled
in a legal system which permits marriage under 16) (applicable to the whole UK
except Scotland). In Scotland, the age of legal capacity is 16 (section 7 of
the Age of Legal Capacity (Scotland) Act 1991).
[628] Section 1(1) of the
Domicile and Matrimonial Proceedings Act 1973, UK.
[629] Section 1(2) of the
Domicile and Matrimonial Proceedings Act 1973, UK.
[630] However, it seems that
a mentally incapable person retains the domicile which he had when he became so
incapable. If he becomes mentally incapable before attaining majority, his
domicile may be changed by his parents or other natural guardian.