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Hong Kong Law Reform Commission |
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1.1 In
this chapter, we set out the existing rules as to how a person's domicile is
determined. This is not intended to
be an exhaustive account of the law of domicile in
1.2 A
person's domicile connects him with a system of law for the purposes of
determining a range of matters, principally related to status or property. In order to connect him with a system,
it is necessary to fix his domicile in a particular geographical area governed
by one system of law, or what can be termed a "law district".[1] For the purpose of determining a person's
domicile,
1.3 The concept of domicile is highly technical. Its relevance and importance should perhaps be mentioned at the outset so as to put the concept in context. Hence, the major areas of law in which the concept is employed as a connecting factor are discussed below.
1.4 The concept of domicile is used in various areas of law, both at common law and by statute, to determine what system of law should govern a person's civil status and certain aspects of the administration of his property. The concept of domicile is relevant in various situations, and applies to all persons and countries. We emphasise that if there are anomalies in an area of law in which the concept of domicile is applied, that area of law but not the concept of domicile should be reformed. The major areas of law where the concept of domicile is used are as follows:
(a) Legal capacity to marry
Legal capacity to marry is governed by the law of each party's antenuptial domicile.[2] A marriage is valid in respect of legal capacity if each of the parties has capacity to marry under the law of his or her antenuptial domicile.
(b) Succession to an intestate's
movables
Succession to an intestate's movables, wherever situated, is governed by the law of his domicile at the date of his death.[3] By contrast, all questions of succession to an intestate's immovables are governed by the lex situs (ie the law of the place where the land is situated).[4]
(c) Personal capacity to make
a will
A testator's personal capacity to make a will of movables is governed by the law of his domicile.[5] Personal capacity is determined by criteria which relate to a person himself, rather than his property. Those criteria, according to which domiciliary law applies, may include his physical or mental state, or his age or marital status.
(d) Formal validity of a will
A will is treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator's death, the testator was domiciled or had his habitual residence, or was a national.[6]
(e) Jurisdiction of court in
proceedings for divorce, etc
The
court has jurisdiction in proceedings for divorce and nullity if either party
to the marriage was domiciled at the date of the petition or habitually
resident for a period of three years before that date, in
(f) Jurisdiction of
court in proceedings for presumption of death and dissolution of marriage
The
court has jurisdiction in proceedings for presumption of death and dissolution
of marriage if a petitioner was domiciled at the date of the petition or
habitually resident for a period of three years before that date, in
(g) Declarations of legitimacy, etc
A person may, if he is domiciled in Hong Kong, apply by petition to the court for a decree declaring that he is a legitimate child of his parents; or that the marriage of his parents or of his grand-parents was a valid marriage; or that his own marriage was a valid one.[10]
(h) Recognition of overseas divorces
or legal separations
An overseas divorce or legal separation will be recognised in Hong Kong if, at the time of the institution of the proceedings in the country concerned, either spouse was domiciled in, habitually resident in, or a national of, that country.[11]
(i) Legitimation by subsequent marriage of parents
If
the father of an illegitimate child is domiciled in
(j) Declaration of a person's status
If
a person is domiciled or habitually resident in
(k) Service
of process out of the jurisdiction
Service
of a writ out of the jurisdiction is permissible in
(l) Direct application
of Chinese law and custom as
The
direct application of Chinese law and custom as
The Hong Kong Bar Association observed in its response to the Consultation Paper that six of these twelve areas of law had already adopted habitual or ordinary residence as a connecting factor, and wondered whether domicile should still be retained as the general connecting factor, given its artificialities. We will discuss this issue in Chapter 3. Suffice to say at this juncture that while at common law domicile is employed as the general connecting factor, this does not preclude other connecting factors from being used in addition to domicile as alternative or supplementary connecting factors in legislation on a case-by-case basis for one reason or another.
1.5 Before
examining the rules for determining a person's domicile in
1.6 First, no person can be without a domicile. It is well established that everyone must have a domicile.[16] A person cannot choose to be without a domicile, even though he can choose to change his domicile. Every independent person must have a domicile, either of origin or of choice. Every dependent person must also have a domicile, either that of the person on whom he is dependent or that otherwise attributed by law.
1.7 Secondly,
no person can at the same time for the same purpose have more than one
domicile.[17] However, in a federal or composite state
consisting of a number of different jurisdictions, there may be statutes
creating one domicile for one purpose and another domicile for other purposes. For example, section 39(3)(b) of the Family Law Act 1975 (Commonwealth) in
1.8 Thirdly, an existing domicile is presumed to continue until it is proved that a new domicile has been acquired.[18] The burden of proving a change of domicile rests with the person asserting such a change.[19] The strength of the presumption differs for different types of domicile, ranging from domicile of dependency (which is weakest) to domicile of origin which is "more enduring,… hold[s] stronger, and [is] less easily shaken off".[20]
1.9 Fourthly,
the courts in
1.10 The existing rules for determining a person's domicile can best be outlined by beginning with the domicile of a new born baby, followed by that of a child and then an adult. We will also discuss the domicile of some special cases, such as married women and the mentally incapacitated. For the purposes of this discussion, when we refer to "country" we mean a "law district" or distinct jurisdiction (ie a "territory subject under one sovereign to one body of law"[22]), unless the context requires otherwise.
1.11 By the operation of law, every person receives at birth a domicile of origin which depends on the domicile of the appropriate parent at the time of his birth, but not on where he was born or where the parents live.[23] A domicile of origin is determined in the following ways:[24]
(a) a legitimate child born during the lifetime of his father has a domicile of origin in the country of his father's domicile at the time of his birth;[25]
(b) a legitimate child born after his father's death,[26] or an illegitimate child, has a domicile of origin in the country of his mother's domicile at the time of his birth;[27]
(c) a foundling has a domicile of origin in the country where he was found.[28]
1.12 The domicile of a legitimate child born after the divorce of his parents is not entirely certain. It has been suggested that he should have his mother's domicile at the time of his birth.[29] Where the parents are not divorced but merely living apart at the time of the child's birth, the domicile of origin of the child will be that of his father.[30]
1.13 As a result of adoption,[31] legitimation or a change in the parents' domicile, a child's domicile may be changed. 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.[32] The significance is that, as discussed later in this chapter, a domicile of origin can revive at any time during the child's life while a domicile of dependency cannot.
1.14 This potential for revival of the domicile of origin is one of its distinctive features. Domicile of origin is a creature of law. It remains with a child for his entire life, even when he has grown up and acquired a domicile of choice. At that time, his domicile of origin remains in abeyance, but will revive immediately when he relinquishes his domicile of choice without acquiring a new domicile of choice.[33]
1.15 A dependent person's domicile is generally the same as, and changes with, the domicile of the person on whom he is, in respect of his domicile, legally dependent. For the purpose of the law of domicile, children are regarded as dependent persons. Other dependent persons are married women and mentally incapacitated persons.[34] A dependent person cannot acquire a domicile of choice by his own act.
1.16 A domicile of dependency of a child under eighteen[35] is determined as follows:
(a) a legitimate child's domicile is, during the lifetime of his father, the same as, and changes with, his father's domicile;[36]
(b) the domicile of an illegitimate child and of a child whose father is dead is the same as, and changes generally with,[37] his mother's domicile;[38]
(c) a legitimated child's domicile is, from the time at which the legitimation takes effect, during the lifetime of his father, the same as, and changes with, his father's domicile if the legitimation is due to the marriage of the child's parents;[39] before the legitimation or after the father's death, the child's domicile depends on his mother's as mentioned in (b) above;
(d) 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, and it is doubtful whether the domicile of a child without living parents can be changed by his guardian.[40]
1.17 If
the mother of an illegitimate child or of a fatherless legitimate child changes
her domicile, she may also choose to change her child's domicile. It was held in Re
"The change in the domicile of an infant which … may follow from a change of domicile on the part of the mother, is not to be regarded as a necessary consequence of a change of the mother's domicile, but as the result of the exercise by her of a power vested in her for the welfare of the infants, which, in their interest, she may abstain from exercising, even when she changes her own domicile."[42]
Where a mother of an illegitimate child or of a fatherless legitimate child acquires a new domicile of choice but leaves her child in the country of her previous domicile, she can be regarded as abstaining from exercising her power of changing her child's domicile.[43]
1.18 No authority can be found concerning the position of adopted children. Section 13 of the Adoption Ordinance (Cap 290) provides for the effect of adoption orders. When an adoption order is made, certain rights, duties and obligations relating to the child pass from the natural parents to the adoptive parents. These various rights and duties are set out in section 13.[44] It is patent from its wording that these rights and duties are not all embracing, but are limited to those relating to the future custody, maintenance and education of the child (including all rights to appoint a guardian to consent or give notice of dissent to marriage). The Court of Appeal unanimously held in Xie Xiaoyi & others v Director of Immigration[45] 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:
"In summary, therefore, the
provisions of the Adoption Ordinance are limited. They do not extend to a
blanket treatment in law of the adopted child as if it had been born a child of
the marriage of the adoptive parents. In this respect, it would seem that the
law of adoption in Hong Kong has remained stationary being still modelled on
the Adoption Act 1950 (in England) which was the law pertaining in England and
Wales half a century ago. In contrast, it can be noted that the Adoption Act
1976 (in
Whilst therefore, the nature of adoption as recognised by the law of Hong Kong gives the adopted child rights, those rights are by no means all encompassing as they might be if the legislation had been similar to current United Kingdom legislation."[46]
1.19 It is therefore uncertain whether section 13 would cover the issue of an adopted child's domicile. It has, however, been argued[47] that it would be reasonable in principle to say that, during the lifetime of an adoptive parent, the adopted child's domicile would be the same as, and would change with, that parent's domicile.
1.20 No authority can be found to support the proposition that a child's abandonment or emancipation will enable him to acquire a domicile.[48] On ceasing to be dependent, a person continues to be domiciled in the country of his last domicile of dependency. In the case of a child reaching eighteen years of age, he will retain his existing domicile of dependency as a domicile of choice,[49] even though he now has the legal ability to change his domicile.
1.21 According
to the Age of Majority (Related Provisions) Ordinance (Cap 410), a person
attains majority for most purposes when he is eighteen years of age.[50] On reaching eighteen years of age, a
person remains domiciled in the country where he was domiciled immediately
before reaching the age of eighteen.[51] If he abandons that domicile, either he
will acquire a domicile of choice or his dormant domicile of origin will
revive.[52] Cap 410 came into operation on
1.22 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.[53] A person can acquire a domicile of choice by the combination of residence in a country and the intention of permanently or indefinitely residing there, but not otherwise. Mere residence without intention is not enough, and the intention must be demonstrated by actual residence.
1.23 "Residence" appears to involve little more than mere physical presence, but it does not include the case where a person is present "casually or as a traveller".[54] The "residence" must be physical presence in a country "as an inhabitant of it".[55] Apart from this, residence may be established without any mental element.[56] The length of residence is not by itself conclusive, and is only important as evidence of animus manendi, the intention of permanent or indefinite residence.[57] It is not necessary that the length of residence be long.[58] Residence for a few days,[59] or for a period even shorter than that,[60] may be enough.
1.24 The "intention" required is to reside permanently or for an unlimited time in a particular country.[61] The residence must be general and indefinite in its future contemplation, and not just for a limited period or particular purpose.[62] The intention must be directed exclusively towards one country.[63] The intention need not be irrevocable in nature,[64] nor is it necessary that it be for the purpose of acquiring a domicile.[65] It also suffices if the intention is negative in form: residing in a country without any intention of leaving it for one's former country of domicile or any other country.[66] A possible move to another country which is dependent on a contingency may have different consequences according to the nature of the contingency. If it is unlikely to occur, such as making a fortune,[67] this would not be sufficient to detract from the individual's intention of permanent or indefinite residence in the country where he is residing. However, if the contingency is clearly foreseen and reasonably anticipated, such as the termination of a contract of employment,[68] this may prevent him from establishing the requisite intention to settle in the country where he is residing.
1.25 Any fact which is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in deciding whether he has acquired a domicile of choice in that country.[69] No fact can be regarded as a definite criterion of the existence of the required intention. A fact may be considered as relevant in one case, but can be regarded as irrelevant in another.[70]
1.26 A domicile of choice can be abandoned by ceasing both to reside and to intend to reside in that country permanently or indefinitely, and not otherwise.[71] Giving up residence[72] or the intention to reside[73] alone will not abandon a domicile of choice. As far as intention is concerned, it is sufficient to prove the absence of an intention to continue to reside and there is no need to prove a positive intention not to return.[74] However, a mere dissatisfaction with the country of the domicile of choice is not sufficient.[75] Residence can simply be given up, and not necessarily only by arriving in another country.[76]
1.27 On abandoning his domicile of dependency or his domicile of choice, a person may acquire a new domicile of choice. Alternatively, he may simply abandon his domicile of dependency or his domicile of choice without acquiring a home in another country. In this case, his domicile of origin revives,[77] irrespective of where he is or what his plans are for the future.
1.28 For the purpose of the law of domicile, a married woman is a dependent person. Accordingly, she cannot acquire a domicile of choice[78] by her own actions, and is dependent upon her husband. If she is a minor, her dependence on her husband will prevail over her dependence on her father. In other words, a married woman's domicile is the same as, and changes with her husband's domicile. This rule applies even where the spouses live apart in different countries,[79] whether or not this is according to a formal separation agreement.[80] The rule also applies where a wife has obtained a decree of judicial separation.[81] Where a marriage is void from the beginning, a woman remains capable of acquiring a domicile of her choice.[82] However, if a marriage is valid or subsisting initially (voidable), a woman shares her husband's domicile until it is annulled.[83]
1.29 On ceasing to be dependent, a person continues to be domiciled in the country of his or her last domicile of dependency. In the case of a married woman, she will retain her existing domicile of dependency as a domicile of choice, even after she acquires the legal ability to change it. A married woman's dependency ends, for instance, on her husband's death or the granting of a decree of divorce, but she will continue to be domiciled in the country of her last domicile of dependency until she acquires a different domicile of choice. Such a change can be the result of acts done during dependency. Hence, a married woman who is settled in a country other than that of her husband's domicile during her dependency can acquire a new domicile in that country as soon as her dependency ends.[84]
1.30 In
1.31 Although different jurisdictions discussed in Chapter 4 may use different terminologies, we are essentially referring to the same type of persons, ie those who are unable to exercise their will because of their mental condition. Not every person who suffers from any of the recognised types of mental incapacity will be treated as a "dependent person". It is a question of fact as to whether or not a mentally incapacitated person is an independent person and can therefore change his domicile.[86] The question is whether the person has the ability to form the necessary intention to make his home in a country permanently or indefinitely. It does not seem appropriate to link the question of capacity for the purposes of the law of domicile to the use of compulsory detention or guardianship.[87]
1.32 The
general rule is that a mentally incapacitated person who is regarded as a
dependent person for the purpose of the law of domicile cannot acquire a
domicile of choice by his own actions, but retains the domicile which he had
when he was first legally regarded as mentally incapacitated for so long as he
remains in that condition.[88] The rationale is that acquisition and
abandonment of a domicile of choice require the exercise of will, and a
mentally incapacitated person may be "unable to exercise any will".[89]
1.33 There is, however, an exception to this general rule. The domicile of a person who is born mentally incapacitated, or becomes mentally incapacitated while he is a dependent child, is determined, while he remains mentally incapacitated, as if he continued to be a dependent child.[90]
1.34 The
burden of proving a change of domicile rests with the person alleging such a
change. A domicile of origin is
more tenacious and it is harder to prove that a person has abandoned his
domicile of origin than his domicile of choice.[91] Where the change is from a domicile of
origin to a domicile of choice, the older case law indicates that the standard
of proof is more onerous than the balance of probabilities[92] applied
in other civil cases, and the elements of "residence" and "intention"
must be shown with "perfect clearness and satisfaction"[93] or "beyond a mere balance of
probabilities".[94] More recent cases,[95]
however, prefer the balance of probabilities as the standard of proof. The position appears to be uncertain.
[1] Dicey and Morris on the Conflict of Laws (Sweet and Maxwell, 13th Ed, 2000) at para 1-060.
[2] Ong Constantino Erminda v Chau Shui Hing [1989] 1 HKC 237; Brook v Brook (1858) 3 Sm & G 481; Mette v Mette (1859) 1 Sw & Tr 416 at 423.
[3] Pipon v Pipon
(1744) Amb 25; Re
Maldonado, State of
[4] Balfour v Scott (1793) 6 Bro Parl Cas 550.
[5] Re Maraver's Goods (1828) 1 Hag Ecc 498; Re Fuld's Estate (No 3), Hartley v Fuld [1968] P 675 at 696. It is uncertain whether the domicile at the date of execution or at the date of death governs where there has been a change of domicile after execution.
[6] Section 24 of the Wills Ordinance (Cap 30).
[7] Sections 3 and 4 respectively of the Matrimonial Causes Ordinance (Cap 179). In Coyne v Coyne [1960] HKLR 163, the question was whether the plaintiff had, at the time when the petition was presented, a Hong Kong domicile upon which to found the jurisdiction of the Court (section 4(1)(b) of the repealed Divorce Ordinance).
[8] Section 5 of Cap 179.
[9] Section 6 of Cap 179.
[10] Section 49 of Cap 179.
[11] Section 56 of Cap 179.
[12] Section 3 of the Legitimation Ordinance (Cap 184).
[13] Section 6 of the Parent and Child Ordinance (Cap 429).
[14] Order 11 rule 1 of the Rules of the High Court (Cap 4A).
[15] Suen Toi Lee v Yau Yee Ping [2002] 1 HKLRD 197.