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Current Rules
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Proposed Rules
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Domicile of children
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Domicile (“D”) of origin
legitimate: father; illegitimate: mother
adopted child:
uncertain[631]
foundling: D in the country in which it was
found[632]
D of dependency
legitimate: father; illegitimate: mother
adopted child: uncertain (see above)
legitimated child: D of
father[633]
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D of origin and D of dependency to be discarded
no differentiation between legitimate and illegitimate children
D in the country with which a child 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, unless the
contrary is proved
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, unless the contrary is proved
“parents” includes adoptive parents
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Domicile of adults
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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
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at 18 not mentally incapacitated: capable of acquiring D
to acquire D: presence in the country concerned + intention to make a home
indefinitely
to acquire D in HK: lawful presence in HK is required and presence is
presumed to be lawful, unless and until the contrary is established
to acquire D outside HK, presence lawful or not is one of the factors to be
considered by the courts
repeal the doctrine of revival of D of origin
existing D continues until acquiring another one by choice or by operation
of law
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Domicile of Married women
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married women's dependent D still applies
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D of dependency of married women to be abolished
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Domicile of the mentally incapacitated
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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 incapacitated
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at 18, 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 D
on recovery, retaining the D last held before the recovery
also cover persons in a comatose, vegetative or semi-vegetative state, and
anyone who for one reason or another is not able to form the required
intention
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Standard of proof
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higher standard for displacing D of origin
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balance of probabilities for all disputes on D
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Domicile in a federal or composite state
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no specific provision
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present in a federal or composite state + intention to make a home there
indefinitely: D in the law district therein with which a person is most closely
connected
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Transitional provisions
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no specific provision
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no retrospective effect
D at any time before the commence-ment of the legislation determined as if
the legislation had not been enacted
D at any time after the commence-ment of the legislation determined as if
the legislation had always been in force
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Codification
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N.A.
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the legislation should be as comprehensive as possible
the legislation should set out the following general rules on D:
no person can be without a D;
no person can at the same time for the same purpose have more than one
D;
for the purposes of a HK rule of the conflict of laws, the question of
where a person is domiciled is determined according to HK law;
a saving provision for the existing common law rules which are not
inconsistent with the new statutory rules.
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