Domicile of children

Domicile of origin

l   legitimate: father; illegitimate: mother

l   adopted child: uncertain[1]

l   foundling: domiciled in the country in which it was found[2]

Domicile of dependency

l   legitimate: father; illegitimate: mother

l   adopted child: uncertain (see above)

l   legitimated child: domicile of father[3]

l   domicile of origin and domicile of dependency to be discarded

l   no differentiation between legitimate and illegitimate children

l   domiciled in the country with which a child is most closely connected, and in applying the test, the courts should take account of all relevant factors, including the child's intention

l   parents domiciled in the same country + child has home with either or both of them, child presumed to be domiciled in that country, unless he is proved to be most closely connected with another country

l   parents domiciled in different countries + child has home with one of them, child presumed to be domiciled in the country in which the parent with whom he has home is domiciled, unless he is proved to be most closely connected with another country

l   "parents" includes adoptive parents

Domicile of adults

l   at 18: capable of acquiring domicile of choice

l   domicile of choice: residence + intention to reside permanently or indefinitely

l   abandon domicile of choice by ceasing to reside + ceasing to intend to reside there permanently or indefinitely

l   revival of domicile of origin

l   at 18 not mentally incapacitated: capable of acquiring domicile

l   to acquire domicile: presence in the country concerned + intention to make a home indefinitely

l   to acquire domicile in HK: as a general rule, lawful presence in HK is required, but in exceptional circumstances, where strict adherence to the rule would lead to injustice, the courts should have discretion to depart from the rule; and presence is presumed to be lawful, unless and until the contrary is established

l   to acquire domicile in a country other than HK, lawful presence or not is one of the factors to be considered by the courts

l   repeal the doctrine of revival of domicile of origin

l   existing domicile continues until acquiring another one by choice or by operation of law

Domicile of Married women

l   married women's dependent domicile still applies

Domicile of dependency of married women to be abolished

Domicile of the mentally incapacitated

l   incapacity occurs during infancy: domicile of dependency continues even after the age of majority

l   incapacity occurs after the age of majority: domicile last had before incapacity continues so long as he remains incapacitated

l   a mentally incapacitated adult domiciled in the country with which he is most closely connected

l   a question of fact as to whether or not a person has the mental capacity to acquire domicile

l   on recovery, retaining the domicile last held before the recovery, and being able to acquire a domicile of his choice

l   also cover persons in a comatose, vegetative or semi-vegetative state, and anyone who for one reason or another is not able to form the required intention

Standard of proof

higher standard for displacing domicile of origin

balance of probabilities for all disputes on domicile

Domicile in a federal or composite state

no specific provision

present in a federal or composite state + intention to make a home there indefinitely: domiciled in the law district therein with which a person is most closely connected

Transitional provisions

no specific provision

l   no retrospective effect

l   domicile at any time before the commence-ment of the Recommended Legislation determined as if the legislation had not been enacted

l   domicile at any time after the commencement of the Recommended Legislation determined as if the legislation had always been in force

Codification

N.A.

l   the Recommended Legislation should be as comprehensive as possible

l   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 HK rule of the conflict of laws, the question of where a person is domiciled is determined according to HK law;

l   a saving provision for the existing common law rules which are not inconsistent with the new statutory rules.