Summary Notes on Conflict Law : Domicile

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Conflict Law : Domicile

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CHAPTER : DOMICILE

è  WHAT IS DOMICILE ?

Ø  It is an indi. personal law which govern that indi.

Ø  Indi. can only own one domicile per time.

Ø  It cannot be declared as it only can be be determined by the factual evidence in every each case.

Ø  Aim : Help in determining the law that is applicable upon an indi. in the case at the court of law.

Ø  There are basically 3 types of domicile, dom. of origin / dependant & choice.

è  DOMICILE vs NATIONALITY

Ø  For nationality, an indi. can have more than 1 nationality per time, a bit different with the domicile’s concept as described above.

Ø  Malaysia law : Presume that your nationality hint out your domicile. (BUT IT IS REBUTTABLE PRESUMPTION)

Р DOMICILE OF ORIGIN

z  It is a dom. that one gain at the moment they were born.

z  Dom. of origin lasts forever, although sometime indi. get change to other type of dom., but this dom. can revive in certain type of occasion.

z  Condition :

♥        Legitimate children : Follow the dom. of the father’s.

♥        If father is dead / Illegitimate child : Follow the dom. of the mother’s.

♥        If you are founded (dijumpai) : Follow the dom. of the country where you are found at.

♥        If you are adopted : Follow the dom. of adoptive father. (If no father – follow mother’s.)

♥        If you had choose another dom. (eg : dom. of choice), and you decided to leave that dom. & yet haven’t choose your new dom., your DOM. OF ORIGIN WILL REVERSE BACK TO YOUR.

ü  UDNY V UDNY

·         PRINCIPLE : "That no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate."

ü  BELL v KENNEDY

·         FOC : Mr. Bell’s dom. of origin is Jamaica. His wife & mom in law wanted to move to Scotland. They move to Scotland. Later, he bought an estate. At the same time, Mr. Bell does not really sat in Scotland as he try to found a place in England. He later died.

·         PRINCIPLE : As Mr. Bell was uncertain whether to settle on Scotland or England, thus the the House of Lords held that he had not lost his Jamaican domicile of origin.

ü  TEE v TEE

·         FOC : Mr. Tee’s dom. of origin is England, then he move to USA, where he had acquired a new dom. of choice. He later then move to Germany together with his wife. Later, he decided to get divorce in England. The wife argued that the husband still dom. in USA. He died in Germany.

·         PRINCIPLE : The dom. of choice acquired in USA is no longer meaningful as he had moved out of USA for a long time. No dom. acquired in German as he never wanted to live there permanently. THE DOM. OF ORIGIN REVIVES BACK. (Revival Rule)

z  CRITIQUE :

         i.            The revival rule of dom. of origin resulted in unnatural result.

       ii.            For situation such as in Mr. Tee’s case, his dom. of choice shall remain until he acquired one.

      iii.            The Rule Of Continuance Of Dom. shall be applied.

ü  RE ESTATE OF JONES

·         PRINCIPLE : This is the only case that got away from the normal use of the revival rule relating to the determination of dom. In this case, court had used the continuance’s rule of dom. Continuance of domiciliary rule held that the last dom. hold by an indi. is his / her dom., and this shall not be disturbed by the revival rule of the dom. of origin.  Unfortunately, this is the only case that had applied the continuance rule, other cases had used the revival rule. *(In exam, you can use either, but give your reasoning for it).

Р DOMICILE OF DEPENDANT

z  It refer to a person’s dom. that is dependant on other person.

z  Condition :

♥        Wife : Follow the dom. of husband.

§        Wife can only abandon the husband dom. if :

   i.            If husband died : The dom. of origin will not revive back. Now the dom. of dependant will transformed to dom. of choice. To get rid this dom., the woman need to abandon her dom. of choice by leaving the country.

ü  RE ANNESLEY

·         PRINCIPLE : As the wife here had never leave the France after the husband died, her dom. still follow the died husband’s dom., France.

ü  IRC v DUCHESS OF PORTLAND

·         PRINCIPLE : Wife acquired the dom. of husband, and her dom. still follow the husband even if the husband change his dom., & this cont. until the husband died and she acquired a new one.

ii.            If you divorce : Still follow the ex-husband’s domicile, until you acquire a new one.

ü  RE SCULLARD ESTATE

·         FOC : The couple married in 1893, the husband is English & their matrimonial home is in England. The wife now have the dom. of dependant of her husband, England. Later, she left her husband, and move with the kids to small island of Guernsey. In 1946, she make a choice to live there permanently (her dom. still England as she never divorced). Feb. 1955 her husband died, and in March she died. What is the dom. of her at the point of her death?

·         PRINCIPLE : Although at the moment she lived in Gurnsey her dom. still England as she never get divorced, but after the husband died court said her dom. is now Gurnsey because court regarded that she had done enough to acquire a new domicile of choice after the husband died.

♥        Legitimate children : Follow the father at the time of his / her birth.

§        If father change his dom. : The dom. of the  children also change.

§        This dom. will stay with the children until they acquire the age of majority (Malaysia – 18 yo according to the Age Majority Act).

§        If parent divorce : Still depend on father’s dom. *England had change it law, the children’s dom. follow the parent (mom / dad) that they live with.

§        If father died : Follow the mother’s dom.

♥        Illegitimate children : Follow the mother’s dom.

♥        Insane / mentally disable : Follow the dom. of parent / guardian at birth, even though they had died. Here, the insane / mentally disable person’s dom. will never change as to avoid them from getting abused by their care taker / etc, until their death / recover.

♥        Adoptive children who disable : Follow their adoptive parent’s dom.

♥        If you are born normal, later get insane / mentally disable : The permanent dom. will be at the time before you become insane / disable.

ü  RE BEAUMONT

·         FOC : The dad & mom in this case is Scottish, thus their child has the Scottish domiciliary. When dad died, mom remarried & her dom. follow her new husband, England. The dom. of the child should follow the mom, but in this case, the mom wanted the child’s dom. to stay as Scotland.

·         PRINCIPLE : The mom is allowed to change the child’s dom. after the dad died. Here, mom asked for CONTINUTION OF DOM. & not to choose a new dom. for her child. Her pray was accepted. Besides, the link of the child with Scotland is very strong and legal. Court allowed this particular practice only if IT IS FOR THE BEST WELFARE OF THE CHILDREN. (*In exam, if want to use this principle, make sure the FOC is similar.)

·         CRITIQUE : This case judgment is very much vague as the power to change the fatherless child’s dom. is given loosely.

Р DOMICILE OF CHOICE

z  There are 2 elements need to be proved in order for this dom. established.

z  ELEMENTS :

1)    RESIDENCE

♥        You must be physically be in a country that you wanted to choose.

♥        Issue : How long you have to be in the country?

ü  WHITE v TENANT

·         FOC : A man living in a state of America wanted to move to neighbouring state. So he packed up all his belonging & moved into the new country. But because he saw that his new house not yet finished, he just spent a few hour there & straight went back to his old house & died there.

·         PRINCIPLE : His dom. at the point his death is the new country that he wanted to move in. court held that even a few hours stay in the state is enough to cover the element is residence. Length of time is no issue. RESIDENCE = PHYSICAL PRESENCE IN THE COUNTRY.

2)       INTENTION

♥        Quite hard to prove in the court of law.

ü  UDNY v UDNY

·         PRINCIPLE : Def. of dom. of choice is “a conclusion / inference which the law derived from the fact of a man fixing voluntarily his sole / chief residence in a particular place with an intention of continuing to reside there for an unlimited time…. it must be a resident not for a limited time period or particular purpose, but general & indefinite in its future contemplation.” So there are basically 3 main elements to be met as per the above principle :

1.     It must be done voluntarily (not kidnap / working / / etc).

2.     It must be a sole / chief residence.

3.     The indi. must reside for continuation of time at such residence. (For permanent period, not for study / etc)

4.     It must be gen. & indefinite – “I will live here permanently … UNLESS something happen” = This contingency (refer to the event that the indi. hope & possible to happen) factor will render the int. to be void.

QS NEED TO BE ASKED IN EXAM : WHETHER A PERSON HAS DONE ENOUGH TO PROVE THAT (S)HE WANTED THE NEW COUNTRY AS HIS / HER DOM.?

ü  RAMSAY v LIVERPOOL ROYAL INFIRMITY

·         FOC : A man, George Bowie dom. of origin was Scotland. In 1882, he quit his work and in 1883, together with his brother & sister, he moved to Liverpool. At Liverpool the brother & sister was being a place where he got his pocket money & food expenses. He never getting any job there & still maintained contact with Scotland. In 1927, he died & buried in Liverpool.

·         ISSUE : Relating to his will as he gave money & prop. to a hospital. According to the Scotland’s law, it is legal to do so, but according to England, it is not lawful to do so. What is his dom. at point of death?

·         PRINCIPLE : In deciding his dom., 3 factors had been looked at.

§        1^st : Length of time he stayed in Liverpool – 36 years.

§        2^nd : He wanted to be buried in Liverpool, & not Scotland.

§        3^rd : He did not want to return to Scotland, even for funeral of his mother.

§  OPPONENT ARGUMENT :

§        1^st : He always been recognized as a “Glasco Man” (Glasco man = Scottish man).

§        2^nd : He subscribed to the Glasco’s newspaper.

§        3^rd : The relation to the Liverpool is only his brother & sister.

§        4^th : The burial is fully supported by his brother.

       HELD : Bowie still domicile in Scotland. The court said that the act of Bowie as described in the above opponent argument show that he had a NEGATIVE INTENTION to stay in Liverpool, England. TO ACQUIRE A NEW DOM. OF CHOICE, YOU NEED A POSITIVE INTENTION.

ü  JOSEPH WOM FUI LUN v YEOH LOON GOIT

·         FOC : The  husband in this case has M’sia domiciliary & has a firm in M’sia called as Azman, Wong & Salleh Firm. In 1967, Mr . Wong had moved to Singapore & set up a firm named Yong, Azman, Wong & Salleh Firm. He still went back & forth between KL-S’pore. Later, he acquired a mistress in Singapore. As the wife found out about it, a big fight sparked. He filed a divorce petition using S’pore law. He later then permanently moved to S’pore & bought a house with the mistress. He also acquired the Permanent Residence of S’pore & joined a few social club in Singapore & ended his membership in M’sia. Lastly, he had sold all his share in both firm, S’pore & M’sia & worked in S’pore as employee in an accounting firm & declared that he would never went back to M’sia.

·         PRINCIPLE : Court held that the petition of divorce using a Singaporean law is valid as Mr. Wong dom. of choice, S’pore is validly acquired. His intention to live in Singapore was very clear. In deciding this, ct had looked at the matrimonial home bought / employment factor / social link  & legality of declaration not to come back to M’sia (this is not conclusive evidence but can be considered). 

Р CONTIGENCY (BERSYARAT)

z  GR : “I will live here permanently UNLESS……., ”.

z  The effect of the above contingency element is that it would negative the dom. of choice that the indi. has acquired.

z  For the contingency factor to be accepted, it must be very clear & unambiguous.

z  The higher the possibility of that contingency to occur, the better chance for the dom. of choice to be invalidated.

ü  WINANS v AG

·         FOC : Pf died in England. His dom. of origin is one of the states within USA. He left USA at the age of 27, & never visited it again before his death 47 years later. He has come to England, live there for 40 years & own 1 home there. However, he disliked English so much & always regarded himself as an American. During his living in England, what he obsessed about was only to make a ship which he intended to give to the USA command of the sea with the hope to get back to Baltimore (USA), and live there permanently (contingency – event that he hope & possible to occur).

·         PRINCIPLE : Pf never acquired a dom. of choice in England. His entire life had been devoted to finish the ship construction. Contingency is COMPLETE when the indi.  believe that the event was going & possible to happen. The effect is that, the dom. of choice will be void. The fact that he had left USA for almost 50 years was irrelevant because the pf never regarded England as his permanent home.

·         Dissenting Judgment : The dom. of choice is acquired as whatever event that he hope so was a plain fantasy that is not going to happen.

ü  INTERNAL REVENUE COMMISSION (IRC) v BULLOCK

·         FOC : The dom. of origin of a man is Canada & worked as pilot in Royal Air Force. He & wife have a matrimonial home in England, but he never gave up his Canadian Passport, never voted for English election & subscribed to the Canada newspaper. On the other hand, his wife hate Canada for it’s cold weather, her dad in law & refused to go back to Canada. Her husband had left an estate to the wife & said that if she dies, the money will go to several Canadian Institution. He added that “If my wife died, I will go back to Canada. – Contingency”. Unfortunately he died before his wife.

·         PRINCIPLE : Court held that the higher the possibility of the contingency, the higher chance of the dom. of choice to be invalidated. In this case, the chance for the wife to die 1^st before him is 50% - 50%. So, court held that the dom. of that man is Canada, since he intended to return & live there after the death of his wife.

ü  RE FURSE

·         FOC : The decease had lived in England for 58 years, bought a farm & love it so much. He wanted to continued live in the farm as long as he can have an active physical life (contingency). Besides, he & children are working in the military services.

·         ISSUE : Is the contingency factor invalidated his dom. of choice of England?

·         PRINCIPLE : No. His dom. of choice still England as based on the FOC, it was believed that he would never leave England & unlikely to do so.

♥        DIFFERENCES BETWEEN THE BULLOCK vs RE FURSE CASE?

§        In Bullock’s case, the court is very lean to use the contingency rule literally & objectively as it sued the FOC better.

§        In the Re Furse’s case, court focus more on the man’s life and not take up the contingency rule literally as it fit more in doing so.

z  HOW TO LEAVE A DOM. OF CHOICE ?

1)    Have to physically leave the country

2)    Show intention not to live there permanently anymore (not to make such country my home anymore)

3)    It is not necessarily not returning there forever.

ü  RE ADDAMS

·         FOC : An English woman dom. in France via marriage. She wanted to return to England after her husband died. She had sold & packs everything & went to a Coast to take ferry back to England. She spent a night at the coast & died.

·         PRINCIPLE : Her dom. still France, as to abandon she needs to physically leave France, & she not succeeded to do so.

ü  IRC v DUTCHESS OF PORTLAND

·         FOC : She claimed that her permanent home is Canada & had abandoned her dom. of choice of England. However, she always went back to England frequently.

·         PRINCIPLE : Court had looked at the residence factor in Canada, & held that she was more like visitor rather than a person who was having a permanent residence there. Court held that her’s dom. of choice was still England.

ü  IRC v PLUMBER

·         FOC : The dom. of origin of a woman was England. At the age of 34 yo, her grandma had bought a house in Genzy, & her mom moved in with her. She studied in England (Boarding school, college & University of London). She only visited Genzy during holiday. It was recorded that Genzy has a cheaper tax in Genzy. She claimed that her dom. is Genzy but had lived in England for entire life.

·         PRINCIPLE : If there is no competing residence, it’ll be easier for the ct to determine the dom. But if there are 2 place, a chief residence must be determined. If the indi. visited / live in a country involuntarily (England – where she had to studied there / etc), later, she would need to establish her voluntariness to stay in the country of her dom. of choice. As per this case, her dom. of choice, Genzy needed to be prove via the act of voluntarily staying in the Genzy after she completed her study.

ü  RE MARTIN

·         FOC : A French prof., ran from France to escape French law. (Fugitive – running away from law.) He had ran to England involuntarily & fell in love there.

·         PRINCIPLE : He had established the dom. of choice in England.

Р NOTE :

♥        Involuntary reason : Refugee, Employment, Health reason.

♥        He can acquire voluntariness later to rebut the presumption by conduct.