Chapter 4 - The law in other jurisdictions, options for reform and recommendations

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4.1 In the last chapter, we recommended that domicile be retained as a general connecting factor and that the rules for determining a person's domicile be reformed. In this chapter, we will examine the position in a number of other common law jurisdictions before formulating options for reforming the law. We also consider views expressed by academics and practitioners, and the responses we received to the Consultation Paper, before making our final recommendations. Annex 2 provides a comparison table of the rules for determining a person's domicile in the jurisdictions we discuss in this chapter. We will follow the sequence adopted in the previous chapters and begin with the domicile of a newborn baby, followed by that of a child and then an adult.

Domicile of children

Australia

4.2 In Australia, there is broadly similar legislation which applies in each state and territory. Domicile Acts in almost identical terms were enacted by all the States,[1] the Northern Territory[2] and the Commonwealth.[3] Cited collectively as the Domicile Acts, they have changed the common law significantly, but have not completely replaced it. If the relevant time at which a domicile is to be determined is on or after 1 July 1982,[4] domicile will be determined according to the Domicile Acts (together with the common law). On the other hand, if the relevant time at which a domicile is to be determined is before 1 July 1982, it will be determined only according to the common law. For the sake of convenience, we refer in this Report only to the Commonwealth Domicile Act 1982.

4.3 The Australian common law rules on the domicile of origin are similar to those in force in Hong Kong:

(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 the child's birth;[5]

(b) a legitimate child born after his father's death, or an illegitimate child, has a domicile of origin in the country of his mother's domicile at the time of his birth[6] (but note the possible effect of the broadly similar legislation on the status of children[7]);

(c) a child about whose parents nothing is known, such as a foundling, has a domicile of origin in the country where he is found.[8]

4.4 Where the relevant time at which a domicile of origin is to be determined is on or after 1 July 1982, these rules continue to apply where the parents are living together. If, on the other hand, a child has his principal home with one of his parents and the other parent is living separately or is dead, the child's domicile will be that of the first mentioned parent.[9] In addition, the domicile of a child who is adopted by two adoptive parents would be the same as if he were born in wedlock to those parents.[10] If there is only one adoptive parent, the child will acquire the domicile of that parent.[11] If the adoption is rescinded, the child's domicile will be determined according to the order rescinding the adoption and, if there is no such provision, as if the adoption had not taken place.[12]

4.5 The Australian common law rules on a child's domicile of dependency are more or less the same as those in Hong Kong:

(a) a legitimate child's domicile is, during the lifetime of his father, the same as, and changes with, his father's domicile;[13]

(b) the domicile of an illegitimate child and of a child whose father is dead is the same as, and changes generally[14] with, his mother's domicile (but note the possible effect of the legislation on the status of children as discussed above).

4.6 These rules may be modified where the relevant time at which a domicile of dependency is to be determined is on or after 1 July 1982. Where a child's parents are living together, these rules will still apply. Just as with a domicile of origin, where a child has his principal home with only one of his parents and the other parent is living separately or is dead, the child's domicile will be that of the first mentioned parent.[15] The child's domicile will thereafter change with that of that parent, even if the child subsequently makes his home with a third person.[16] The child's domicile will follow the first mentioned parent's until such time as the child makes his principal home with the other parent, or his parents resume or start living together.[17] If the first mentioned parent dies, the last domicile of that parent continues as the child's domicile until the child makes his home with the surviving parent (if any), or the child acquires his own domicile on reaching majority.[18] As in the case of a domicile of origin, the domicile of a child who is adopted by two adoptive parents would be the same as if he were born in wedlock to the parents.[19]

Canada

4.7 In Canada, only Manitoba has a general statute governing domicile: the Domicile and Habitual Residence Act 1983. In other provinces and territories, the common law and some scattered pieces of legislation together govern the determination of a person's domicile. The following discussion will focus on the 1983 Act in Manitoba. The 1983 Act codifies, inter alia, the law of domicile for all purposes of the law of Manitoba, and is substantially similar to the Draft Model Act to Reform and Codify the Law of Domicile adopted by the Uniform Law Conference in 1961. The common law rules on domicile are abolished.[20] The domicile of a person is to be determined under the 1983 Act to the exclusion of the laws of any other state or subdivision thereof.[21]

4.8 A "child" is defined as an unmarried person who is under the age of majority, and who is not a parent with legal custody of his child.[22] The common law rule that a child's domicile differs according to whether his parents are married or not no longer applies in Manitoba. Where parents have a common domicile, a child's domicile follows that of his parents.[23] If parents do not have a common domicile, their child has the domicile of the parent with whom the child normally and usually resides.[24] In other cases, a child's domicile is in the state or subdivision where he normally and usually resides.[25]

India

4.9 The law of domicile in India is a combination of both common law and the Indian Succession Act 1925.[26] The domicile of origin of a legitimate child born during the lifetime of his father is that of his father at the time of the child's birth.[27] A legitimate child born after his father's death has his domicile in the country where his father was domiciled when he died.[28] An illegitimate child has a domicile of origin in the country of his mother's domicile at the time of his birth.[29] Indian law therefore appears to fix the domicile of a legitimate child with his father and the domicile of an illegitimate child with his mother even after the father or mother has died.[30] It has been argued that a foundling has his domicile in the country in which he is found.[31]

4.10 A child's domicile of dependency follows the domicile of the parent from whom he derived his domicile of origin.[32] Section 14 of the 1925 Act provides for three exceptions where a child's domicile does not change with that of his parent. These are if the child: (a) is married; (b) holds any office or employment in the Government; or (c) has set up, with the parents' consent, any distinct business. The domicile of a child whose parents have separated is not clear.[33] According to section 12 of the Hindu Adoptions and Maintenance Act 1956, an adopted child is deemed to be the child of his adoptive father or mother for all purposes from the date of the adoption. From such date all the ties of the child to the family of his or her birth are deemed to be severed and replaced by those created by the adoption in the adoptive family. It is therefore submitted that an adopted child's domicile should be that of the adopter and should change with it.[34]

Ireland