Preface

Terms of reference

The consultation process

Layout of this Report

 

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1.             The concept of domicile is important in the Hong Kong legal system and plays a significant role in private international law.  In the common law world the concept of domicile has traditionally been used as the major connecting factor to determine the personal law of an individual.  In the civil law tradition nationality has played that role.  Domicile can be distinguished from nationality in that, while the latter connects an individual to a state, the former relates to a legal jurisdiction.  It differs, too, from nationality in that while a person can be stateless, or have more than one nationality at the same time, he cannot be without a domicile, and can only have a single domicile at any one time.  Domicile does not equate to residence, for it is possible to be domiciled in a place other than one's country of residence.

 

2.                     What, then, is the concept of domicile?  Domicile has been defined as "the place or country which is considered by law to be a person's permanent home."[1]  The central notion of domicile is that of a long-term relationship between person and place.  In other words, a person is domiciled in the country where he intends to live permanently or indefinitely.

 

3.             Domicile is what is termed in private international law a "connecting factor": it determines under which system of law and within the jurisdiction of which country's courts certain issues (principally those relating to status and property) are to be determined.  The concept of domicile connects a person with the country in which he has his permanent home or in which he intends to live indefinitely.  The effect of that connection is that matters which are intimately connected with a person's personal life fall to be determined by the law of the place with which he is most intimately connected (ie the law of his domicile), rather than a place with which he has only tenuous or short-term connections.

 

4.             Despite the significance of the concept of domicile, the rules for determining a person's domicile have repeatedly been criticised as unnecessarily complicated and technical, and as sometimes leading to absurd results.  Various law reform bodies in the common law world[2] have critically examined the traditional concept of domicile and recommended, in particular, amending the rules for determining domicile.  In a number of countries, including Australia, Canada, Ireland, New Zealand and South Africa,[3] those criticisms have been answered by legislation which amends the rules for determining domicile.

 

 

Terms of reference

 

5.             The Secretary for Justice and the Chief Justice considered it appropriate for the Law Reform Commission to review the way in which the law determines a person's domicile and referred the topic to the Commission with the following terms of reference:

 

"To review the law governing the determination of domicile of natural persons and to consider and make recommendations for such reform as may be necessary."

 

6.             On 25 June 2002, the Law Reform Commission appointed a sub-committee to examine the current state of law and to make recommendations (the "Sub-committee").  The Sub-committee held a total of eleven meetings.  The members of the Sub-committee are:

 

 

 

Mr Billy Ma	Solicitor Hobson & Ma
Mr Byron Leung	(Secretary)

 

 

The consultation process

 

7.                     The Sub-committee published a consultation paper on Rules for Determining Domicile (the "Consultation Paper") in March 2004, with a consultation period until the end of May 2004.  The Sub-committee received responses to the Consultation Paper from those listed at Annex 1.  We are grateful to all those who responded to the Consultation Paper.

 

8.                     The Consultation Paper was in general well received by those who commented upon it and the majority of respondents supported the Sub-committee's recommendations.  Nevertheless, some respondents did have specific comments and observations on both the recommendations and the issues discussed in the Consultation Paper.  We will deal with them in the following chapters.

 

 

Layout of this Report

 

9.             This Report is the result of careful consideration of the initial recommendations in the Consultation Paper in the light of the responses we received to the paper.  This Report examines the rules for determining a person's domicile in Hong Kong and the anomalies in those rules, and presents a number of recommendations for reform.

 

10.           Chapter 1 discusses the existing rules for determining a person's domicile, and the major areas of law in which the concept of domicile is used as a connecting factor.  Chapter 2 highlights the problems of the existing law.  Chapter 3 discusses other common connecting factors employed in Hong Kong, and whether domicile should be retained as a general connecting factor.  Chapter 4 examines the law in other jurisdictions, and looks at the opinions of academics and practitioners, as well as the responses we received to the Consultation Paper before setting out our final recommendations.  Chapter 5 summarises our recommendations, and sets out their practical effects.