Chapter 5 - Summary and practical effects of recommendations

Summary of recommendations

Practical effects of recommendations

 

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Summary of recommendations

 

 

Chapter 3 - Should domicile be retained as a general connecting factor?

 

5.1                   Domicile should be retained as a general connecting factor, but the existing rules for determining a person's domicile should be modified as recommended in this Report. (Recommendation 1)

 

 

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

 

5.2           We recommend that the concept of domicile of origin and that of domicile of dependency should be discarded.  (Recommendation 2)

 

5.3           We recommend that there should be no differentiation between legitimate and illegitimate children in determining their domicile.  (Recommendation 3)

 

5.4           We recommend the following rules for determining a child's domicile:

 

(a)       a child's domicile should be in the country with which he is most closely connected;

 

(b)       where a child's parents have their domicile in the same country and the child has his home with either or both of them, he is presumed to be domiciled in that country, unless he is proved to be most closely connected with another country; and

 

(c)        where a child's parents are not domiciled in the same country and the child has his home with only one of them, he is presumed to be domiciled in the country where the parent with whom he has his home is domiciled, unless he is proved to be most closely connected with another country.

 

In this context, "parents" includes adoptive parents of a child.  In applying the closest connection test, the courts should take account of all relevant factors, including the child's intention.  (Recommendation 4)

 

5.5           We recommend that any person who is not mentally incapacitated may acquire a domicile of his choice once he attains the age of 18.  (Recommendation 5)

 

5.6           We recommend that :

 

(a)       the act necessary for a person of full age and capacity to acquire a domicile should be presence in the country concerned;

 

(b)       as a general rule, lawful presence in Hong Kong should be required to acquire a domicile in Hong Kong, but in exceptional circumstances, where strict adherence to the rule would lead to injustice, the court should have discretion to depart from the rule; and a person's presence should be presumed to be lawful, unless and until the contrary is established; and

 

(c)        in deciding whether an individual has acquired a domicile in a country other than Hong Kong, one of the factors to be considered by the Hong Kong courts should be whether or not the presence in that country is lawful by the laws of that country.  (Recommendation 6)

 

5.7           We recommend that the requisite intention for a person of full age and capacity to acquire a domicile should be that the individual intends to make a home in the country concerned for an indefinite period.  (Recommendation 7)

 

5.8           We recommend that the domicile a person has at any time should continue until he acquires a different one, whether by choice or by operation of law.  (Recommendation 8)

 

5.9           We recommend that the domicile of dependency of married women should be abolished.  (Recommendation 9)

 

5.10                We recommend that:

 

(a)       a mentally incapacitated adult should be domiciled in the country with which he is most closely connected;

 

(b)       a mentally incapacitated adult, on recovery of his capacity, should retain the domicile which he last held before his recovery, and he may then acquire a domicile of his choice;

 

(c)        the relevant provision should be phrased so as to cover not only the mentally incapacitated, but also persons in a comatose, vegetative or semi-vegetative state, and any other person who for one reason or another is not able to form the required intention.  (Recommendation 10)

 

5.11                We recommend that the normal civil standard of proof on a balance of probabilities should apply in all disputes about domicile.  (Recommendation 11)

 

5.12                We recommend that a person who is present in a federal or composite state and intends to make his home there indefinitely should, if not held to be domiciled in any law district within that state under the general rules recommended in this Report, have his domicile in the law district with which he is for the time being most closely connected.  (Recommendation 12)

 

5.13                We recommend that:

 

(a)       the Recommended Legislation should not have retrospective effect;

 

(b)       a person's domicile at any time before the commencement date of the Recommended Legislation should be determined as if the legislation had not been passed;

 

(c)        his domicile at any time after that date should be determined as if the Recommended Legislation had always been in force.  (Recommendation 13)

 

5.14                We recommend:

 

(a)       that the Recommended Legislation on the rules for determining natural persons' domicile should be as comprehensive as possible;

 

(b)       that the Recommended Legislation should set out the following general rules on domicile:

 

-           no person can be without a domicile;

 

-           no person can at the same time for the same purpose have more than one domicile;

 

-           for the purposes of a Hong Kong rule of the conflict of laws, the question of where a person is domiciled is determined according to Hong Kong law;

 

(c)        that the Recommended Legislation should include a saving provision for the existing common law rules which are not inconsistent with the new statutory rules.  (Recommendation 14)

 

 

Practical effects of recommendations

 

5.15                We hope that the recommendations in this Report will improve this complex and confusing area of common law by simplifying the concept of domicile and making the ascertainment of a person's domicile easier.  Annex 3 tabulates the current rules and the proposed rules for comparison.  In practical terms, we do not think that the recommendations would change the domicile of many people, with the exception of the proposed abolition of the married women's domicile, which would change the domicile of some married or recently divorced women.  Those changes may have already taken effect as a consequence of Article 8 of the Basic Law., but we feel it is important to resolve this matter clearly, to remove any uncertainty, to deal with transitional problems expressly, and to eliminate a discriminatory rule from Hong Kong law once and for all. 

 

5.16                Another major change is that relating to the domicile of children.  The existing rules are essentially based on the Victorian idea of the father being the pater familias, and we believe that our proposals would more closely reflect modern realities.  Lastly, the abolition of the concept of domicile of origin may also impact on some people's domicile.  It is worth mentioning that the formation of the concept and its special tenacity were influenced by the desire of those resident in colonies overseas at the height of the British Empire more than a century ago to have their private and family life governed by the law of their homeland.  In a different age, we question the validity of this special bias in favour of a person's first domicile, especially in the light of greatly increased mobility.  We believe that the abolition of domicile of origin would make the domiciliary rules more in tune with the modern world.