Domicile Domicile: A place of residence or ordinary habitation; a house or home; permanent residence, to which if absent, he has the intention of returning Citizenship determines one’s political status while domicile determines its civil status A person can only has one domicile at one time Types of domicile 1. Domicile of origins 2. Domicile of choice 3. Domicile of dependence Domicile of Origins
Owned by every person
Obtained once one is born
If one acquire a domicile of choice, his domicile of origins will be suspended and will be revived upon relinquishment of the domicile of choice.
If one is legitimate, domicile of origin follow that of the father
If one is illegitimate, domicile of origin follow that of the mother
Domicile of Choice
Condition: once one reached the Age of Majority (In accordance with Age of Majority Act 1971)
For female, the condition will be that she is an adult and unmarried
If the domicile of choice is obtained, the domicile of origin will be held in abeyance until the abandonment of domicile of choice
Change of domicile has to be proved, as the intention must be proved c learly and voluntarily without any further purposes
Udny v Udny Issue : whether Udny was still still domiciled in Scotland when his matrimonial affairs were were being determined Originally from Scotland, which he had bought a house. Lived in England for 32 years. There was no doubt that he has changed his domicile from Scotland to England. Subsequently he sold his house with all furnishings and left for France. In the end, the domicile of origin is revived as by selling his furniture, his intention was to terminate the domicile of choice. So the law which applicable to him was the law of Scotland, his domicile of origin.
Winans & Anor v Attorney General Winans was an American citizen who resided in Russia for some time, had various residences in England, and sporting leases in Scotland. He married a Guernsey lady in Petersburg. He had property in the US and originally went to England upon the recommendation of the doctor and lived for a long time in England. Issue : whether or not at the time of his death, Winans was domiciled in England. If his domicile was in England, the Crown would be able to claim legacy duty on the property he lefts behind. If his domicile was not in England, Crown would not able the claim the duty. House of Lords held that a man of American domicile of origin who spent his last thirty eight years of his life in England has not acquired a domicile of choice of England. He has retained his domicile of origin as he had hope to go back to America. He intended to return to Baltimore where he was setting up a business and also dreamed of acquiring a large house in order to live and work there for the whole scheme.
Shaik Abdul Latif v Shaik Elias Bux Deceased has domicile of origin in Hong Kong, he moved from HK to Singapore and next to KL , where he lived for 19 years. He built a home in Selangor and regarded Selangor as his place of residence. He had no other houses in anywhere else. Issue is whether he acquired a domicile of choice in Selangor. If he had, the validity of his will would be determined in accordance with the Islamic Law, not the law of Hong Kong. Court held that, the deceased acquired the domicile of choice in Selangor.
Kanmani v Sundarampillai Issue : Decide if the petitioner in a divorce proceedings was domiciled in the Federation of Malaya. Petitioner has to prove that her husband the respondent was domiciled in the Federation Husband arrived to Federation from Ceylon since he was 17 to seek employment. He went on leave to Ceylon for a year and returned to Malaya. Evidence of the husband’s colleague sated that husband had no intention of staying in Malaysia. While the wife stated that husband had nominated KL as the place for payment under his insurance policies. Fact of husband had not returned Ceylon after the war is taken into account as well as the wife says that the husband had intended his children to be educated in Malaya and had no intention in taking them back to Ceylon. Husband, the respondent stated that he had not attempted to secure a permanent dwelling i n Malaya and had make no attempt to take out Federal citizenship. The petitioner became and citizen in 1951, but not respondent. Held, it was found that petitioner had not discharged the burden of proof that respondent had gain the domicile of choice in the Federation of Malaya is the domicile which took that of her husband was still in Ceylon.
Paramesuari v Ayadurai Both parties born in Federation of Malaya and respondent was permanently employed by the government. And both had taken the citizenship papers. Held: citizenship papers were taken are the strong evidence of the intention to stay in Malaya. Therefore, the court had the jurisdiction to entertain the petition for divorce.
Marshall v Marshall & Rayner v Rayner Issue : whether the husband had changed his domicile to that of Singapore. Principles laid down : not only physical settlement but also a settled state of mind. Marshall : the change of domicile was proved Rayner : the change of domicile was not proved
Joseph Wong Phui Lum v Yeoh Loon Goit Petitioner husband applied for marriage to be dissolved on the ground that they lived separately for a period of not less than 7 years. The parties had 6 children from their marriage. They firstly live in KL, and worked in an accounting firm till he set up his own firm with other.He built an audit practice of international standard in Singapore which made him stayed in Singapore and return to KL once or twice a week. He took a mistress and since then, the couple stayed separately. He had become a resident of Singapore and issued a blue identity card. He became member of Singapore Island Country Club and American Club in Singapore. He had three children by his mistress. Considering all the facts, learned judge was sati sfied that there is a change of domicile and therefore the court o f Singapore had the jurisdiction to decide on the petition for divorce.
Melvin Lee Campbell v Amy Anak Edward Sumek Issue : whether the husband petition was domiciled in Malaysia when the joint petition for divorce was presented. Husband had married a native from Sarawak and he had set up a matrimonial home of his family in the same place and he had expressed his intention of converting himself into Islam and taken steps to explore possibility of investing in Malaysia. Except for 2 periods, he had been residing in Malaysia since 1977, he was a line pilot in a helicopter firm in Indonesia and he was also a managing pilot of that firm. He bought houses for the parents in law and he had not bought for himself any property nor actual investment in Malaysia. Held, not succeeded and therefore the court had no jurisdiction to entertain the petition for divorce. Domicile of Dependence
2 types of domicile of dependence, namely that of a child and that of a wife.
Domicile of Wife
A married woman follows the domicile of the husband as they are both regarded as one entity throughout the marriage where woman will loses its identity and even if they stay apart, the domicile remained as the same as the husband’s.
Only divorce and death could revived the wife’s very own domicile.
Under the common law, if the father dead, domicile of the child will followed the mother’s IF the mother made an effort in changing it, with bona fide or in good faith.
If the mother changed the child’s own domicile with mala fide, the domicile of the child will still remained as the father’s as held in the case of Potinger v Wrightman.
Lord Advocate v Jaffrey & Anor Issue : whether the wife can obtain her own domicile instead of the husband’s. Held : only one domicile can be owned by a married woman which is in accordance with the husband’s. Each child attains domicile of origin upon birth, that of the father, if the child is legitimate. If not, it will be of the mother’s.
Domicile of the child
Under the common law, if father dies, domicile of child follows that of his mother if his moher had change hers. If the mother has not, the domicile follows that off the deceased father.
Reason : Child is unable or incapable of having an intention that is needed to determine domicile.
Re Beaumont A mother and her infant child were domiciled in Scotland, upon her remarriage her husband went to reside permanently in England. All her children who followed her to England except Catherine, acquired English domicile. Catherine had remained in Scotland until she died. Held : change in the domicile of a fatherless infant which may follow from a change of domicile of the part of the mother is not be regarded as the necessary consequence of a change of 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 Since Catherine’s mother abstained from exercising her power of changing Catherine’s domicile when she changed her own. Catherine’s domicile at the time of her death was in Scotland.
Potinger v Wightman A widow brought her children to England after the death of the husband and she got herself the domicile of England so the domicile of the child also in England. Dictum : only a widow can change the domicile of the children and if the mother remarried which made her followed the domicile of new husband, so the domicile of the child will be off the step father.
