DOMICILE
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Date
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LIFESTYLE TAG
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PSR 110
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TYPE
UNI TAG
SYLLABUS
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PREP & NOTES
MEANING OF DOMICILE
DOMICILE VS NATIONALITY (CITIZENSHIP)
→ both important when determining person’s status
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Nationality (lex patriae) determines person’s status in terms of public law
→ given priority in legal systems of other countries
Domicile determines person’s status in terms of private law
→ nationality not relevant in private law
→ South African law retained the common-law stance
DOMICILE IMPORTANCE IN PRIVATE LAW
Objective law determines the private law status of a legal subject (whether or to
what extent a legal subject has juristic capacities)
objective law → South African law / law of the country
Law of the country is a factor determining private law status
Before status of person can be determined, it must be clear that the person
is connected to that legal system
→ domiciled in the country
domicile of a person connects the person to a legal system to determine private
law status
→ domicile connecting factor between person and legal system
A person’s private law status is determined by law of place / country where
a person is domiciled (lex loci domicilii)
DOMICILE AS A CONNECTING FACTOR
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the legal systems of countries differ
need for permanent connecting factor between person and legal system
→ domicile is the connecting factor between a person and a legal system
Status and the capacities of a person solved by referring to that particular person's
lex loci domicili(the law of the place in which the person in question is domiciled)
the lex loci domicilii in most cases forms the connecting factor when the
status of a person is to be determined
→ a generally accepted as a rule
EXCEPTIONS TO THE RULE
1. person's capacity to act concerns his or her capacity to 'conclude a simple
commercial contract'
Determined according to the lex loci contractus (the law of the place where
the contract is concluded)
2. juristic acts involving immovable property are to be performed
Status determined by the lex loci rei sitae (the law of the place where the
immovable property is situated)
No person can be without a domicile at any time
→ It is unthinkable for someone to participate in legal intercourse without this
connecting factor to determine his or her status.
each person acquires a domicile at birth
a domicile is maintained until it changes by choice or by operation of law
No person can have more than one domicile at any time
The view of Kahn
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a dual domicile should not be allowed is supported because it could give rise to
several practical problems
Practical example
SA law: age of majority is 18 → can marry without parental consent
Nebraska's law: age of majority is 19 → can marry without parental consent.
The difference can create practical problems:
Sam, 18 years old and domiciled in Nebraska, visits his sister in SA.
He meets a woman and they want to marry in SA
Q: Which country's legal system (SA / Nebraska's) will determine Sam's private
law status (i.e. whether he has in
this case the capacity to act (marry)?
If SA legal system is applicable he has the capacity to act (18 years old, can
marry without parental consent).
If Nebraska's legal system is applicable he will have to obtain parental consent
before he can marry (younger than 19).
Because legal systems differ, it is of utmost importance to determine which legal
system determines the private
law status of a person.
A person's private law status is determined by the law of the place / country
where a person is domiciled
Apply rule: Sam is domiciled in Nebraska.
The legal system of Nebraska determines his capacity to act. Sam (18) must
obtain parental consent before he can marry in SA.
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DOMICILE
place where, in terms of the law, a person is deemed to reside for the
purpose of exercising his or her rights and duties
→ derived from domicillium - means home or dwelling-place
definition of domicile has to take into account legal rules ascribe domicile to a person
even if it not that person’s home or residence
RELEVANCE OF DOMICILE
Domicile plays determining role in person’s capacities in private law
MATRIMONIAL PROPERTY REGIME
Matrimonial property regime of marriage (in or out of community of property)
determined by legal system of place where husband domiciled at time of the
marriage
Frankel’s estate v The master
court of appeal held that this rule must apply even if the parties had already
agreed at the time of the marriage
to settle elsewhere
couple married in Czech Republic after deciding to settle in SA
Husband domiciled in Germany → matrimonial property regime governed by
German law
→ creates problems
1. Only heterosexual parties accommodated
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2. Unconstitutional → results in unfair infringement of equality based on sex
discrimination
Essential that an alternative connecting factor must be found and that this
lacuna be addressed by legislator
LAW OF SUCCESSION
→ most specifically when movable property is concerned
TESTATE SUCCESSION
Movable property bequeathed by a will
→ lex loci domicilii of testator determined if he had legal capacity to make a will
to determine whether the heir is competent to inherit the lex loci domicilii at the
time of death
Depending on the impediment either that of the testator or the heir is
relevant
lex domicilli of the testator determines whether formatilites for execution of the
will with regard to movable property has been complied with
If the will does not itself determine the legal system that governs interpretation,
the lex loci domicilii of the testator at the time of execution will apply
INTESTATE SUCCESSION
When an estate or a part thereof, is left intestate devolution will be governed by the
lex loci domicilii of the testator at the time of his or her death
JURISDICTION OF THE COURT
Domicile plays an important role in procedural law
→ domicile of the defendant will determine whether particular court has jurisdiction
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Jurisdiction → legal capacity to make a ruling
only a court situation in area within which a person is domiciled has jurisdiction in
matters regarding the status of that person
DIVORCE PROCEEDINGS
jurisdiction in divorce matters centres primarily on the concept of domicile
In the past principle of unity sealed fate of women wanting to act as claimants in
divorce proceedings
Embodied the principle that wife accepts domicile of her husband after
marriage
→ woman had to sue husband in place domiciled even if she’s never been there
S 6 Domicile Act 3 of 1992
came into operation 1 August 1992
accepts the residence of either party in the area of jurisdiction for a period of
at least one year prior to the present action to establish jurisdiction in divorce
actions
Domicile act unseated unity principle
Court has jurisdiction to make an order regarding guardianship, care of and contact
with a child
1. if the child is domiciled in that court’s area of jurisdiction
2. usually resides there
3. is merely present there at the time of action
Domcile act determines all over 18 irrespective of age or marital status can acquire a
domicile of choice
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Prior to the Domicile Act 3 of 1992 types of domicile and determining domicile
governed by common law
→ Act restricted the legal position
DOMICILE OF CHOICE VS DOMICILE BY OPERATION OF LAW
who are able to choose their own domicile → domicile of choice
while the other group consists of those who are unable to choose their own
domicile → domicile by operation
of law
DOMICILE OF CHOICE
a domicile chosen by a person with the legal capacity to do so and established by
physical presence and the intent to remain
S 1 Domicile Act → provide people able to obtain domicile of choice & sets out
requirements for it’s establishment
ACQUIRING DOMICILE OF CHOICE
QUALIFYING PERSONS
Over 18
Under 18 who by law has the status of a major → under 18 who are
legally married
Emancipated minor cannot acquire domicile of choice → emancipation
does not bestow majority status
Mental capacity to make such a choice
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S (1)(1) → no discrimination based on sex or marital state
→ abolished unity principle
→ hence amendedment of s 2(1) Divorce Act 70 of 1979
Practical implication of amendment :
Both domicile and residence in preceding year of either one of the parties
can serve as a connecting factor in divorce action to establish jurisdiction
→ could give rise to practical problems :
if both parties institute an action before a competent but separate court, unequal
treatment resulted from common-law unity principle is evident. Many perceives
attempts by legislator to improve dilemma of woman did not succeed
REQUIREMENTS
Set out in s 1(2) of the Domicile Act
1. LAWFUL PRESENCE
illegal immigrants and refugees may not acquire
2. PHYSICAL PRESENCE
Previously called the factum requirement in common-law
demands that person should be living in particular place
no minimum time
temporary absence does not rule out domicile of choice
duration of a person’s stay could indicate intention to settle their
residence alone is not sufficient proof of intention
physical presence and intention both have to be present
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to meet the factum requirement : particular person must live at the
relevant place himself
does not suffice for family members to live there while he/she lives
elsewhere
3. PARTICULAR INTENTION
previously known as animus manendi → involves the intention to settle at a
particular place for an indefinite period time
Eilon v Eilon
2 teachers
Emigration to SA arranged by Jewish agency proving Hebrew teacher to
teach Hebrew in different countries
Faithful to Zionist principle → settle in Israel again
Extended Conrad to a few time
Permanent residence granted in SA
Maintained family bonds, Israeli citizenship & immovable property in
Israel
Husband had an affair & ruined marriage & chances of get work
elsewhere
Returned to Israel alone
Wife (plaintiff) instituted divorce proceedings in Cape Provincial Division
Before adjudication - had to determine if defendant domiciled in its area
of jurisdiction
Court a quo ruled husband domiciled in Israel
Case taken on appeal
Judge of Appeal Potgieter → majority judgement
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Person will succeed in proving acquired domicile of choice when physical
presence and fixed intention to abandon previous domicile and to settle
permanently at place of choice had been proven
Potgieter found by referring to
Voet’s rigid view of animus manendi
Ruling of Johnson v Johnson → relied heavily on views english writer
Westlake on international private law
That person who settles in a place but foresees he will leave place in future
is not vested with necessary animus manendi
→ appeal refused
Judge of Appeal Williamson → minority judgement
Question should be whether person had shown a balance of probabilities
that he had had a present intention to live in the country for an indefinite
period of time
explained this did not mean it had to be determined whether that person
one day under certain circumstances might have decided to leave the
place
Eilon meant to settle in SA permanent - had not been his intention to limit his
stay in any way
→ animus manendi is the intention to settle for an indefinite period of time
in a particular place and this definition is perfectly in line with the Act
doctrine of precedent ensured that the majority judgment determined the courts'
view of the animus manendi for almost three decades
But today definition of AM in Domicile Act allows for greater flexibility →
requirement doesn’t demand intention to live in a country permanently
Determining animus manendi :
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determined by considering his/her statements and actions that give expression
to the intention
statements made during the trial as well as in the past
statements are judged in light of the person to whom they were made; the
circumstances in which they were made and the intention with which they were
made
further determined by whether these statements were supported and furthered
by actions
DOMICILE BY OPERATION OF THE LAW
was sometimes referred to as domicile of dependence
→ appropriate bcos domicile was dependent on other persons
S 2 of Domicile Act → moved away from domiciles of dependance
domicile is seen as the place to which the person concerned is most closely
connected
→ domicile of the person in question no longer determined by that of another person
Attempt is made rather to take note of the actual residence of the person
concerned, even if a domicile by operation of law is allocated
PERSONS WHO ACQUIRE
In terms of S 2 of the domicile act 3 of 1992
CHILDREN
largest category of people qualifying for domicile by operation of law are
(unmarried) children
Subsection 2 → brings domicile of child more in line with actual place of
residence
a rebuttable presumption that a child's domicile is determined by the
parents or parent with whom he or she lives in the normal course of
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events
AFTER DIVORCE OF PARENTS
child's domicile will be with the parent with whom he or she resides
children's domicile will usually be with the parent who has the day-to-day
care of the child
mother marries again
domicile remains with the care-giving parent even when it is in the stepparent's house
definition of the word parents in s2(3) includes unmarried and adoptive
parents
THOSE WITHOUT MENTAL CAPACITY TO MAKE A RATIONAL
DECISION
refers to persons with mental disabilities
establish to which place that person is most closely connected
→ ended the ambiguity regarding the domicile of persons with mental
disabilities prior to the commencement of this Act
provision is also formulated widely enough to include unconscious people
DOMICILE OF ORIGIN
Domicile which everyone acquired by operation of the law at birth
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S 2 → rules in terms of which, inter alia, the original domicile of a child must be
determined.
The domicile of origin of foundlings and children not living with at least one of
their parents (orphans & foster care) determined by reference to :
S 2(1) → place to which they are most closely
connected
a factual matter which must be solved by referring to the circumstances of
each particular case
S 2(2) → children who have a parental home
rebuttable presumption ascribing to them a domicile of origin at their parental
home at the time of their birth
rule applies even if only one of the child's parents was residing there at the
time of his or her birth
Prior to the Domicile Act a domicile of origin was more important than it is today
because it could revive if necessary
The Act however disposed of the (English) doctrine concerning the revival of a
domicile of origin
presently the only value of a domicile of origin is that it is the first domicile
of a particular person
As soon as this first domicile is replaced by a second
domicile (by means of operation of law), then the domicile of origin has served
its purpose and no longer plays a role.
SUCCESSION OF DOMICILE
S 3(1) → no person will lose until acquiring another domicile either by choice
or by operation of law
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DETERMINING DOMICILE WITHOUT A FIXED ADDRESS
S 3(1) → fixes problem with regard to the domicile of people without fixed
address
category consists of :
vagrants
fugitives
those who have in fact and intentionally (animo ex facto) abandoned their
previous domicile and who have not yet acquired another domicile of choice
or by operation of the law
last-designated domicile is retained
→ reference should also be made to the provisions of subsection 3(2)
provides that a domicile of origin does not revive except when a domicile is
again acquired at that place by way of the usual requirements
doctrine of the revival of a domicile of origin is abolished
PROBLEM CASES
Sometimes people who are capable of acquiring a domicile of choice at a specific
place are unable to exercise their freedom of choice because their domicile is
prescribed or otherwise limited
In these circumstances it is questionable whether such a limitation in exercising a
choice prevents the acquisition of a domicile of choice
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capacity to acquire a domicile of choice includes the capacity to carry out that choice
and to make the chosen place the place of residence in practice
view taken by the courts = a great deal of uncertainty previously existed in South
African law concerning the question whether these people can acquire a domicile of
choice at a particular place, despite the fact that they do not live there voluntarily or
because of the possibility that their residence there may be terminated against their
wishes
The Domicile Act 3 of 1992 did not specifically deal with this problem, but he Act has
made a large contribution to solutions
DOMICILE OF PRISONERS
cannor have a free choiee regarding their residence
prisoner retains the domicile he of she had immediately prior to imprisonment
life-imprisonment
prisoner inevitably acquires a domicile of choice in the place of detention
the usual principles regarding the acquisition of a domicile of choice as depicted
in the Act should apply in the case of prisoners:
A prisoner will acquire a domicile of choice in the place where he or she serves
his or her sentence, provided that he or she decides to settle there permanently
after his or her release
more likely that while the prisoner serves his or her sentence, he or she will see
the place of his or her last domicile (prior to his or her imprisonment) as his or
her residence then retain the last domicile for as long the sentence.
Section 3(1) emphatically provides that no person shall lose domicile until
acquires another domicile by choice or by operation of law.
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The Domicile Act has thus brought an end to the ambiguity regarding the
domicile of prisoners
DOMICILE OF ARMED FORCE
Initially judicature → members of the armed forces do not acquire a domicile of
choice where they are stationed because they are not free to choose where they
will be stationed
Even when the court of appeal later adopted the view that such a member could
acquire a domicile of choice at a place where he was not stationed, it did not
solve the problem.
DOMICILE OF DIPLOMATS
courts inclined to accept that they could acquire a domicile of choice at the place
where they were in the employ of the government
acquiring a domicile there had to be decided in the light of the particular
circumstances of each case
government officials and persons transferred by their employers
courts were of the opinion that these people cannot acquire a domicile at the
place where they are in the employ of the
government because they are not free to choose where they want to live
This viewpoint was rejected by several authors
all the above cases should be managed similarly by applying the principles of the
Act. All the people mentioned above maintain the mental capacity to make a rational
choice and can thus obtain a domicile of choice, as long as the requirements of s1(2)
are met, namely those of legality, physical presence and intent to settle for indefinite
period of time.
DOMICILE OF ILLEGAL IMMIGRANTS
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common-law principles were applicable prior to the Act → requirement that the
residence on which the domicile is
based must be lawful
no person who enters the country illegally will acquire a domicile of choice
deported → domicile of choice is terminated the moment of deportation because
residence here then becomes illegal
person who is initially in country illegally may obtain permission from the
government to remain in South Africa
If a person stays in the country by virtue of a permit
→ will acquire domicile of choice here if intends to stay permanently
Once a person applies for refugee status in South Africa → not be treated as
illegal while the application for refugee status is being considered by the South
African authorities
→ therefore lawfully present
STANDARD OF PROOF
Change of domicile is never assumed; it must always be proven
The Domicile Act provides that the standard of proof required in cases concerning
the acquisition or loss of domicile is the same as that required in any other privatelaw matter
→ a balance of probabilities
measure should apply to all cases regarding domicile
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PROVISION OF TRANSITION
indicate whether the Act has retroactive effect and the practical implication of this
fact.
Domicile Act does not affect any right, capacity, obligation or liability which has
arisen from the domicile acquired by any person prior to the commencement of the
Act
does not affect the legality of any act performed before the Act came into operation
Act has no retrospective force: The Act provides that any proceedings pending in a
court at the commencement of the Act will be proceeded with and finalised as if this
Act had not been passed
→ means that the legal position prior to the commencement of the Act will apply to
certain cases for several years to come
cannot be denied that this Act has moved in the direction of equality and justice
Much has also been achieved to align legal rules with factual reality
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