The Law Reform Commission

of Hong Kong

Report

Rules for determining domicile

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CONTENTS

Chapter	Page
Preface	1
Terms of reference	2
The consultation process	3
Layout of this Report	3
1. The existing rules for determining a person's domicile	4
Major areas of law where the concept of domicile is used	4
General rules in respect of domicile	7
Existing rules for determining a person's domicile	8
2. Problems of the existing law	17
Domicile of children	17
Domicile of adults	20
Domicile of dependency of married women	21
Domicile of dependency of the mentally incapacitated	23
Burden and standard of proof	24
Domicile in a federal or composite state	25
3. Should domicile be retained as a general connecting factor?	26
Other common connecting factors	26
Reform proposals considered in other jurisdictions	28
Conclusion	30
4. The law in other jurisdictions, options for reform and recommendations	33
Domicile of children	33
Domicile of adults	51
Domicile of married women	74
Domicile of the mentally incapacitated	80
Standard of proof	87
Domicile in federal or composite states	89
Transitional provisions	92
Codification	95
5. Summary and practical effects of recommendations	100
Summary of recommendations	100
Practical effects of recommendations	102
Annex 1
List of Respondents to the Consultation Paper	104
Annex 2
Comparison table of the rules for determining a person's domicile	105
Annex 3
Table comparing the current rules with the proposed rules in Hong Kong	116

Preface

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1. The concept of domicile is important in the Hong Kong legal system and plays a significant role in private international law. In the common law world the concept of domicile has traditionally been used as the major connecting factor to determine the personal law of an individual. In the civil law tradition nationality has played that role. Domicile can be distinguished from nationality in that, while the latter connects an individual to a state, the former relates to a legal jurisdiction. It differs, too, from nationality in that while a person can be stateless, or have more than one nationality at the same time, he cannot be without a domicile, and can only have a single domicile at any one time. Domicile does not equate to residence, for it is possible to be domiciled in a place other than one's country of residence.

2. What, then, is the concept of domicile? Domicile has been defined as "the place or country which is considered by law to be a person's permanent home."¹ The central notion of domicile is that of a long-term relationship between person and place. In other words, a person is domiciled in the country where he intends to live permanently or indefinitely.

3. Domicile is what is termed in private international law a "connecting factor": it determines under which system of law and within the jurisdiction of which country's courts certain issues (principally those relating to status and property) are to be determined. The concept of domicile connects a person with the country in which he has his permanent home or in which he intends to live indefinitely. The effect of that connection is that matters which are intimately connected with a person's personal life fall to be determined by the law of the place with which he is most intimately connected (ie the law of his domicile), rather than a place with which he has only tenuous or short-term connections.

4. Despite the significance of the concept of domicile, the rules for determining a person's domicile have repeatedly been criticised as unnecessarily complicated and technical, and as sometimes leading to absurd results. Various law reform bodies in the common law world² have critically examined the traditional concept of domicile and recommended, in particular, amending the rules for determining domicile. In a number of countries, including Australia, Canada, Ireland, New Zealand and South Africa,³ those criticisms have been answered by legislation which amends the rules for determining domicile.

Terms of reference

5. The Secretary for Justice and the Chief Justice considered it appropriate for the Law Reform Commission to review the way in which the law determines a person's domicile and referred the topic to the Commission with the following terms of reference:

"To review the law governing the determination of domicile of natural persons and to consider and make recommendations for such reform as may be necessary."

6. On 25 June 2002, the Law Reform Commission appointed a sub-committee to examine the current state of law and to make recommendations (the "Sub-committee"). The Sub-committee held a total of eleven meetings. The members of the Sub-committee are:

Ms Audrey Eu, SC	(Chairman) Senior Counsel
Mr Philip Smart	(Vice-chairman) Associate Professor Department of Law The University of Hong Kong
Ms Mimmie Chan	Solicitor Allen & Overy
Prof Fanny M Cheung	Professor & Chair Department of Psychology Chinese University of Hong Kong
HH Judge Chu	Family Court
Mr Jat Sew-tong, SC	Senior Counsel
Mr Anson Kan	Solicitor Johnson Stokes & Master
Ms Thelma Kwan	Head of Estate Planning Services Wealth Protection Solutions HSBC Trustee (Hong Kong) Ltd
Ms Jacqueline Leong, SC	Senior Counsel

Mr Billy Ma	Solicitor Hobson & Ma
Mr Byron Leung	(Secretary)

The consultation process

7. The Sub-committee published a consultation paper on Rules for Determining Domicile (the "Consultation Paper") in March 2004, with a consultation period until the end of May 2004. The Sub-committee received responses to the Consultation Paper from those listed at Annex 1. We are grateful to all those who responded to the Consultation Paper.

8. The Consultation Paper was in general well received by those who commented upon it and the majority of respondents supported the Sub-committee's recommendations. Nevertheless, some respondents did have specific comments and observations on both the recommendations and the issues discussed in the Consultation Paper. We will deal with them in the following chapters.

Layout of this Report

9. This Report is the result of careful consideration of the initial recommendations in the Consultation Paper in the light of the responses we received to the paper. This Report examines the rules for determining a person's domicile in Hong Kong and the anomalies in those rules, and presents a number of recommendations for reform.

10. Chapter 1 discusses the existing rules for determining a person's domicile, and the major areas of law in which the concept of domicile is used as a connecting factor. Chapter 2 highlights the problems of the existing law. Chapter 3 discusses other common connecting factors employed in Hong Kong, and whether domicile should be retained as a general connecting factor. Chapter 4 examines the law in other jurisdictions, and looks at the opinions of academics and practitioners, as well as the responses we received to the Consultation Paper before setting out our final recommendations. Chapter 5 summarises our recommendations, and sets out their practical effects.

Chapter 1 - The existing rules for determining a person's domicile

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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 Hong Kong. We discuss these rules as a background to the discussion in the next chapter of the problems of the existing law.

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, Hong Kong is such a "law district", since it has its own system of law. There is more than one law district in a federal state such as Canada (British Columbia, Manitoba, Ontario, etc), or in a composite state such as the United Kingdom (England and Wales, Scotland and Northern Ireland). Similarly, in the People's Republic of China there are four law districts, namely Mainland People's Republic of China, Taiwan, the Hong Kong Special Administrative Region and the Macau Special Administrative Region.

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.

Major areas of law where the concept of domicile is used

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 Hong Kong.⁷ The court has jurisdiction in proceedings for judicial separation if either party to the marriage was domiciled at the date of the petition in Hong Kong.⁸

(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 Hong Kong.⁹

(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 Hong Kong at the date of his subsequent marriage with the mother of the child, the child will be legitimated.¹²

(j) Declaration of a person's status

If a person is domiciled or habitually resident in Hong Kong, he may apply to the court for a declaration that (1) a person named in his application is or was his parent; (2) he is a legitimate child of his parents; or (3) he has become a legitimated person.¹³

(k) Service of process out of the jurisdiction

Service of a writ out of the jurisdiction is permissible in Hong Kong if relief is sought against a person domiciled or ordinarily resident within the jurisdiction, or the claim is made for the administration of the estate of a person who died domiciled within the jurisdiction.¹⁴

(l) Direct application of Chinese law and custom as Hong Kong domestic law

The direct application of Chinese law and custom as Hong Kong domestic law is confined to Chinese persons domiciled in Hong Kong. Hong Kong law does not treat Chinese law and custom as the personal law of all ethnic Chinese, regardless of their domicile. Merely being an ethnic Chinese or a Chinese inhabitant of Hong Kong does not suffice.¹⁵

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.

General rules in respect of domicile

1.5 Before examining the rules for determining a person's domicile in Hong Kong, it may be helpful to set out some of the general rules which apply to domicile.

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 Australia creates an Australian domicile (as distinct from a domicile in one of the various states, such as Queensland) for the purpose of divorce jurisdiction. Therefore, a person can have two domiciles in Australia: one for matrimonial causes and another for other issues. Conversely, in the absence of any equivalent legislation, a person domiciled in Hong Kong cannot concurrently be domiciled in the PRC and vice versa.

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 Hong Kong will apply Hong Kong law in determining a person's domicile. The person's nationality or foreign connection may be irrelevant to that determination. Hence, applying the Hong Kong law of domicile, the Hong Kong courts may determine that a person has acquired a domicile of choice in another jurisdiction, even though he has not satisfied the requirements for domicile imposed by the law of that other jurisdiction. Similarly, where a person has a domicile of origin in another jurisdiction, the law of domicile of that jurisdiction is not relevant to the Hong Kong courts' decision as to whether he has acquired a Hong Kong domicile of choice.²¹

Existing rules for determining a person's domicile

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.

Domicile of children

Domicile of origin

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

Domicile of dependency of children

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 eighteen³⁵ 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 Beaumont⁴¹ that the remarriage of a widow, which at that time led to her getting a new domicile of dependence, did not of itself affect the domicile of her children:

"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 Immigration⁴⁵ 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 England) contains in s.39 a provision, the effect of which is to treat the child 'in law' as if he had been 'born as a child of the marriage'. …

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 argued⁴⁷ 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.

Domicile of adults

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 October 1990, and the former age of majority (twenty-one) still applies to transactions which occurred prior to that date.

Domicile of choice

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

Abandonment of a domicile of choice

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 residence⁷² or the intention to reside⁷³ 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

Revival of domicile of origin

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.

Domicile of dependency of married women

1.28 For the purpose of the law of domicile, a married woman is a dependent person. Accordingly, she cannot acquire a domicile of choice⁷⁸ 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 Hong Kong, a married woman can have her own independent domicile for certain limited purposes. Section 11C of the Matrimonial Causes Ordinance (Cap 179) provides that a married woman's domicile shall "be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile", instead of merely following her husband's. However, this provision applies only for the purposes of Part II of Cap 179 (ie the jurisdiction of court in respect of divorce, nullity, judicial separation, etc). Generally speaking, a married woman's domicile still follows her husband's.

Domicile of dependency of the mentally incapacitated⁸⁵

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

Burden and standard of proof

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 probabilities⁹² 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.

Chapter 2 - Problems of the existing law

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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 argued¹⁴ 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 Atkinson¹⁶ said that the tastes, habits, conduct, actions, ambitions, health, hopes and projects of the person in question were all relevant. Kindersley VC¹⁷ 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 Rights²² (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 Constitution²⁴ 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 explained³² 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.

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

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3.1 In the last chapter, we have identified the various problems associated with determining a person's domicile under the existing law. It may be opportune at this juncture to point out that other connecting factors are also employed in Hong Kong for the purposes of connecting a person with a system of law. We discuss in this chapter these connecting factors and consider whether any of them should replace domicile as a general connecting factor in Hong Kong.

Other common connecting factors

3.2 Apart from domicile, the more common connecting factors are habitual residence, nationality and ordinary residence. We will also consider permanent residency and right of abode as possible options.

Habitual residence

3.3 Habitual residence is applied in a number of contexts, including: (a) determining the formal validity of a will¹; (b) determining jurisdiction of the court in proceedings for divorce and nullity²; (c) determining jurisdiction of the court in proceedings for presumption of death³; (d) recognition of overseas divorces or legal separations⁴; and (e) declaration of a person's status⁵.

3.4 The term "habitual residence" is adopted in the Hague Conference on Private International Law. The term is deliberately left undefined⁶, and is not treated as a term of art but according to the ordinary and natural meaning of the two words. The English Court of Appeal has stressed that habitual residence is basically a question of fact to be determined by referring to the circumstances of each case.⁷ Habitual residence must, however, be distinguished from mere residence and the word "habitual" connotes a quality of residence but not its length.

Nationality

3.5 In Hong Kong, nationality is also applied as a connecting factor in a number of circumstances, such as in determining the formal validity of a will⁸, and recognition of overseas divorces or legal separations⁹.

3.6 Until the beginning of the 19^th century, domicile was universally regarded as the basis for determining an individual's personal law.¹⁰ It was the Code Napoleon in 1804 in France which pioneered a shift from domicile to nationality in continental Europe. Belgium, Luxemb