Chapter 2 - Problems of the existing law

 

Domicile of children

Domicile of adults

Domicile of dependency of married women

Domicile of dependency of the mentally incapacitated

Burden and standard of proof

Domicile in a federal or composite state

 

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2.1          In this chapter, we discuss the problems of the existing law of domicile highlighted in the last chapter.  We begin with the domicile of a new- born baby, followed by that of a child and then an adult.  We consider thereafter the domicile of some special cases, such as married women and the mentally incapacitated, as well as the standard of proof and domicile in a federal or composite state.

 

 

Domicile of children

 

Domicile of origin

 

2.2           As discussed in the previous chapter, there are two sets of concepts and rules for determining a child's domicile: (a) domicile of origin, which determines domicile at birth; and (b) domicile of dependency, which determines domicile during childhood.  It is doubtful whether there is a need or advantage to have two separate sets of concepts and rules.

 

2.3           A domicile of origin is ascribed to every person at birth by operation of law.  It reflects the domicile of the relevant parent at the time of birth.  Where a child is born or where his parents live is irrelevant in this regard.  As a consequence, the same domicile of origin can be passed on from generation to generation even though few members of the family have actually lived in the country of their domicile. 

 

Illustration

 

A, whose domicile of origin was England, went to India where he had a legitimate son B.  B, while resident in India, had a legitimate son C who also, while resident in India, had a legitimate son D.  A, B and C intended to return to England when they retired at sixty years of age, but they all died in India before reaching that age.  D's domicile of origin remains England, even though he has never lived there.[1]

 

2.4           In addition, the concept of revival of domicile of origin has been much criticised.[2]  The rationale for the concept of revival is that if no substantial connection has been established with another place, the country of domicile at birth provides the most appropriate domicile.  That may be questionable, however, where there is no substantial connection with the country of domicile at birth.  A person may find himself domiciled in a country with which he has only a stale or tenuous connection, or even which he has never visited. 

 

Illustrations

 

(1)       T's domicile of origin was England.  In 1947 he moved to the United States.  In 1953 T became a naturalised American citizen and acquired a domicile of choice in New York.  In 1960, without losing his domicile of choice, T moved to Germany.  In 1967 T decided to make his permanent home in England, but he did not return to England until 1972.  It was held that T's domicile of origin revived in 1967, even though he had left England twenty years earlier and had not yet physically returned to reside there.[3]  When T formed his intention, after years of absence from the domicile of choice, of going to England and not going back to the United States, his domicile of origin in England revived automatically on the intention being formed.

 

(2)       B, born in New Zealand to Hong Kong domiciled parents, received at birth a domicile of origin in Hong Kong.  He lived in New Zealand continuously, and acquired a domicile of choice there on reaching the age of majority.  At the age of 50 he left New Zealand with the intention of settling permanently in Australia, and so abandoned his domicile of choice.  Before deciding in which state he would settle in Australia, B died in a car accident shortly after his arrival.  B's domicile of origin in Hong Kong would revive (even though he had never been there), as he had abandoned his domicile of choice in New Zealand without acquiring a new one.

 

2.5           There are also a number of matters which remain unsettled in respect of domicile of origin.  First, no authority can be found as to the domicile of origin of a foundling, even though it is generally accepted that the domicile of origin should be the country where the child is found.[4]  Secondly, as discussed in Chapter 1, the domicile of origin of an adopted child is unclear, since it is uncertain whether section 13 of the Adoption Ordinance (Cap 290) would cover the issue of adopted children's domicile.[5]  In Xie Xiaoyi & others v Director of Immigration,[6] the Court of Appeal unanimously held 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.  Thirdly, the position of a legitimate child who was born after the divorce of his parents remains unclear.  It can be argued that the child should take his mother's domicile at birth.[7]  Fourthly, no authority can be found as to the position of a posthumous child, even though it is generally assumed that he should take his mother's domicile at birth.[8]

 

 

Domicile of dependency

 

2.6           The rules determining the domicile of dependency of children differentiate between legitimate and illegitimate children. In general terms, a legitimate child's domicile of dependency follows that of his father, while an illegitimate child's follows that of his mother.  This is a well-settled rule even though it can lead to some strange results.  For instance, where the parents of a legitimate child live apart, and the child lives with the mother in England and has no home with the father in Hong Kong, the child's domicile still follows that of his father.  It is also difficult to justify in principle why the domicile of a child depends on whether his parents are married or not.  Bart Rwezaura has said:

 

"The major function of domicile is to establish a relationship between an individual and a particular legal system.  It is based on the primary consideration that a child should acquire the domicile of a parent who has legal responsibility towards him/her and, presumably, with whom the child resides.  It might be argued then, that where the law has been changed to remove most legal distinctions between all children irrespective of whether or not their parents are married, the law of domicile should be modified accordingly to reflect this policy."[9]

 

2.7           Another problem of the existing law is that it cannot satisfactorily deal with the situation where a child's parents die, or he is fostered or taken into the care of a local authority.  In the former case, a child's domicile of dependency freezes (ie his domicile of dependency from the parents cannot be changed).  In the latter case, the child's domicile will continue to follow that of his parents even though he is taken into the care of a local authority or lives with a third person, either under a court order or a private arrangement. 

 

Illustration

 

B migrated to New South Wales from Hong Kong with his parents.  B's domicile of dependency changed with his parents' to New South Wales.  Both of his parents subsequently died in New South Wales and B returned to Hong Kong to be brought up by relatives.  Despite the fact that B has not returned to, and has had no further connection with, New South Wales, his domicile remains there until he can acquire a domicile of choice after attaining the age of majority. 

 

2.8           The domicile of an illegitimate child or of a fatherless legitimate child depends on that of his mother, who may effect a change in her child's domicile when changing her own.[10]  A child's domicile may be changed "as the result of the exercise by [his mother] 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."[11]

 

Illustration

 

Two illegitimate children B and C live with their mother in Hong Kong.  The mother, domiciled in Hong Kong, then goes with B to New Zealand while leaving C with a relative in Hong Kong, and then marries a New Zealand domiciled man.  The mother obtains a New Zealand domicile, and so will B.  C, the other child, will remain domiciled in Hong Kong.

 

2.9           Some matters concerning the domicile of dependency of children are uncertain.  First, no authority can be found as to the position of a legitimated child's domicile, but it is argued that his domicile follows and changes with his father's.[12]  Secondly, because it is doubtful whether section 13 of the Adoption Ordinance (Cap 290) deals with the issue of an adopted child's domicile,[13] the domicile of an adopted child is uncertain.  Thirdly, it remains unclear whether a guardian can alter a child's domicile where the parents are no longer alive.  It has been argued[14] that in those circumstances, the domicile cannot be changed and that the same applies to the domicile of an illegitimate child without a living mother (though with a living father).

 

 

Domicile of adults

 

Domicile of choice

 

2.10                The principal criticisms of the rules for acquiring a domicile of choice are:

 

(a)       they are artificial: an existing domicile persists long after any connection with the country in question has ended;

 

(b)       they also lead to uncertainty: it is hard to decide a person's domicile because of the inherent difficulty of ascertaining his intention.

 

2.11                A number of factors combine to make it difficult to establish a new domicile of choice.  First, the burden of proving a change of domicile rests with the person alleging that change of domicile.  Secondly, a change from domicile of origin to domicile of choice may call for a higher standard of proof than just a balance of probabilities.[15]  Thirdly, the "intention" required is to reside "permanently" or for an unlimited time in a particular country, and the burden to prove this is onerous.  Fourthly, it is inherently difficult to prove the intention of a person, especially where that person is deceased.  Lord Atkinson[16] said that the tastes, habits, conduct, actions, ambitions, health, hopes and projects of the person in question were all relevant.  Kindersley VC[17] also said that no act or circumstance in a man's life, however trivial, should be left out in considering whether there was an intention to change his domicile.

 

2.12                The problems stemming from the difficulties and uncertainties of determining a person's domicile were well summarised as follows:

 

"Trials are apt to be long and expensive; for since a man's state of mind must be investigated, evidence even of the smallest matter is relevant.  Besides, the difficulty of reaching certainty in matters of domicile in the absence of any decision by a competent court is a serious inconvenience to numerous people when they come to make a will or in the many other circumstances in which it is necessary to know which legal system is applicable.  The practitioner may find it impossible to advise his client with confidence, since he cannot prophesy what impact the facts will have upon the judge's mind."[18]

 

 

Domicile of dependency of married women

 

2.13                Article 15(4) of the Convention on the Elimination of All Forms of Discrimination against Women (which applies to Hong Kong) provides that the states parties "shall accord to men and women the same rights with regard to the law relating to … the freedom to choose their residence and domicile".[19]  The Committee on the Elimination of All Forms of Discrimination against Women considered: "[d]omicile, like nationality, should be capable of change at will by an adult woman regardless of her marital status".[20]  The Committee also recommended that the states parties "should, where necessary to comply with the Convention, in particular in order to comply with [article 15] …, enact and enforce legislation".[21]  It seems clear that the common law rule as to the domicile of married women contravenes article 15(4).

 

2.14                It is also questionable whether this common law rule satisfies the Hong Kong Bill of Rights Ordinance (Cap 383) and the Basic Law.  Article 22 of section 8 of Cap 383 (equivalent to article 26 of the International Covenant on Civil and Political Rights[22] (the "ICCPR")) provides:

 

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

 

2.15                Article 39 of the Basic Law provides that the ICCPR remains in force in Hong Kong, and that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restrictions shall not contravene the above provision that the ICCPR remains in force in Hong Kong.  Article 25 of the Basic Law expressly states that all Hong Kong residents shall be equal before the law.  No authority can be found as to whether the common law rule of the domicile of dependency of married women survives article 25 of the Basic Law.  In JW v JW,[23] the Supreme Court of Ireland, however, decided that the common law rule could not survive a provision in the Irish Constitution[24] similar to article 25 of the Basic Law.  Article 8 of the Basic Law, however, provides that the laws previously in force in Hong Kong (ie common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, except for any that contravene the Basic Law.  Hence, the common law rule of the married women's domicile of dependency may have impliedly been repealed already.

 

2.16                The rule as to the domicile of dependency of married women applies even where the spouses have lived apart for a long time in different countries, whether or not this is according to a formal separation agreement.[25]  In Re Scullard,[26] where the husband and wife had lived apart for forty-seven years, some thirty years of which had been in different countries, it was held that the rule still applied.  Danckwerts J said: "the intention [of residing elsewhere permanently which] had in fact formed … was only prevented by a rule of law relating to the domicile of a wife from being effective in law".[27]  The rule also applies where a wife has obtained a decree of judicial separation.[28]  Lord Cranworth suggested in Dolphin v Robins that the rule should be qualified:[29]

 

"… there may be exceptional cases to which, even without judicial separation, the general rule would not apply, as for instance, where the husband has abjured the realm, has deserted his wife, and established himself permanently in a foreign country, or has committed felony and been transported."[30]

 

2.17                It is not surprising that this rule has long been criticised.  It reflects "social conditions and attitudes of a past age … [and produces] serious inconvenience in practice".[31]  Lord Denning explained[32] that it was an old notion in English law that "a husband and wife [were] one, and the husband [was] that one".  The rule had been swept away in almost all branches of the law except for domicile.  Lord Denning said that it was "the last barbarous relic of a wife's servitude".  Bart Rwezaura echoed this view:

 

"It need not be stressed here that married women have a right to an independent domicile not only for purposes of divorce but also for all other purposes.  Let us hope, therefore, that this 'barbarous relic of the wife's servitude' will be removed from the Hong Kong law as soon as possible."[33]

 

 

Domicile of dependency of the mentally incapacitated

 

2.18                The effect of the existing law is to freeze the domicile of a mentally incapacitated person at the time of the onset of his mental incapacity, even though there is a subsequent change in circumstances, such as his making his permanent home in another country.

 

Illustration

 

A, domiciled in Hong Kong, became mentally incapacitated and was sent to England.  Even though A resides in England for many years, his Hong Kong domicile persists so long as he remains mentally incapacitated.

 

2.19                Where a person is born mentally incapacitated or becomes so while he is a dependent child, the effect of the existing law is that his domicile of dependency continues while he remains mentally incapacitated.  This is still the case even if he no longer lives as part of the family, or if his parents' legal duty to care for him no longer exists.

 

Illustration

 

B, a legitimate child with a New Zealand domicile of origin, became mentally incapacitated.  At thirteen, she was sent by her mother to an institution in Scotland after her father's death.  B was still mentally incapacitated at twenty-nine when her mother married a man domiciled in England.  Her mother accordingly acquired a domicile in England.  There was no evidence of her intention to change B's domicile.  B remained domiciled in New Zealand, even though she had left there sixteen years earlier.[34]

 

 

Burden and standard of proof

 

2.20                As discussed in Chapter 1, there is a suggestion that the standard of proof required to change a domicile of origin to a domicile of choice is more onerous than the balance of probabilities applied in other civil cases.[35]  The position remains uncertain.  It has been suggested that there is a historical reason for the special tenacity of a domicile of origin.  William Binchy has said:

 

"It is possible that the greater difficulty in shaking off a domicile of origin derived from the view of English courts over a century ago, during the formative period of the principles of domicile, that persons with an English domicile of origin would be very slow to abandon it.  This was perhaps a correct inference when, at the height of British imperialism, Britain exercised control over countries spread throughout the world.  The pattern of colonists frequently sending their children back to Britain for their education and of retiring there supported the view that the domicile of origin would be difficult to dislodge."[36]

 

2.21                The English and Scottish Law Commissions have corroborated this view:

 

"The rationale of its peculiar tenacity seems to be the identification of the country of that domicile with the patria or homeland of the person concerned and the allegedly reasonable expectation of expatriates that, despite prolonged periods abroad, their private and family life will continue to be governed by the law of their homeland.  It could be argued that the pre-Second World War attitudes displayed in cases such as Winans v Attorney General and Ramsay are anachronistic today, being a direct response to the demands of a now vanished Empire and the desire of imperial and colonial servants and the businessmen who accompanied them to retain their domiciles in the United Kingdom."[37]

 

2.22                This rationale for the special tenacity of the domicile of origin has little relevance to Hong Kong's current circumstances.  It is difficult to justify imposing a higher standard of proof when the change is from a domicile of origin to a domicile of choice than that applied when the change is from one domicile of choice to another.

 

 

Domicile in a federal or composite state

 

2.23                As mentioned in Chapter 1, a federal state such as Canada or a composite state such as the United Kingdom consists of more than one "country" (ie Manitoba, Ontario, etc, for the former and England, Scotland, etc, for the latter).  The state itself (Canada or the United Kingdom) is not a "country" for the purpose of domicile.  A person going to a federal or composite state will therefore acquire a new domicile only when he resides in one of its constituent "countries" with an intention of residing there permanently or indefinitely.  This may have undesirable effects.

 

Illustrations

 

(1)       A, with a Hong Kong domicile of origin, left Hong Kong with the intention of settling permanently in Australia.  He spent a few months in Sydney but died in a car accident before deciding in which city to settle down.  In these circumstances, he died domiciled in Hong Kong.

 

(2)       B, with a Hong Kong domicile of origin, left for Singapore at the age of two and later acquired a domicile of choice in New Zealand.  At sixty, he moved to Australia with the intention of settling there permanently, but without deciding in which city to make his home.  He died shortly after arriving in Australia.  Since he had abandoned his New Zealand domicile without acquiring a new one, his Hong Kong domicile of origin revived although he had never returned to Hong Kong and had had no further connection with it since the age of two.