LIA1008 FAMILY LAW

TUTORIAL 1 – DOMICILE & RESIDENCE

1. What is meant by (a) Domicile of Origin (b) Domicile of Choice (c) Domicile of Dependence?

(a) Domicile of Origin

 Obtained at birth and is carried through one’s lifetime.
 Follows father’s domicile – if the person is legitimate (born during father’s lifetime)
 Follows mother’s domicile – if the person is illegitimate (born after father’s death)
 Characteristics: i) Strong tenacity (persistent and tenacious)
ii) Hard to lose.
iii) Automatically revives once domicile of choice is lost without acquiring
a new domicile of choice.
 Udny v Udny – Father was born in Scotland but had left it and taken a lease of a house in
London. He had a castle in Scotland but it was not habitable. He visits Scotland frequently
but had no residence there. In 1844, he sold the lease, personal possessions and left
London for France (but does not intend to reside permanently there). Held: Father had
lost his domicile of choice (London) and had revived his domicile of origin (Scotland).

(b) Domicile of Choice

 Allowed to change at 18 years of age (s2 Age of Majority Act 1971)
 Female – can choose her domicile if she is an adult and unmarried. If married, must follow
husband’s domicile.
 Burden of proof – on the person claiming his domicile has changed.
 Conditions: Must be done voluntarily and not due to compulsion (duties, responsibilities,
absconding from creditors, poor weather, health purposes)
 Medical advice is not free-will: Winans v AG – P came to England on medical advice but
had no intention to make England home.

(c) Domicile of Dependence

 Two types – child and wife.
 Child: attains father’s domicile (if legitimate); attains mother’s domicile (if illegitimate).
Adopted child: follows adopter’s domicile. If adopters are spouses, follows adpt father’s.
Reason behind dependence: Child is unable/incapable of having an intention needed to
determine domicile.
 Wife: follows husband’s domicile (upon marriage)
Reason behind dependence: husband and wife viewed as one entity under common law.
Doesn’t matter if they live separately; only divorce will release her from this dependence.
2. What are the factors that the court will consider when deciding on whether a person has
acquired a domicile of choice? Reference to cases as authorities must be made.

Four factors that the court will consider:

1) Stayed for a long period of time (not conclusive)

 Shaik Abdul Latif v Shaikh Elias Bux – successful
 Melvin Lee Campbell v Amy Anak Edward Sumek – unsuccessful
 Udny v Udny

2) Buying of properties
 Melvin Lee Campbell – didn’t buy any property (unsuccessful)
 Shaikh Abdul Latif – built a house (successful)

3) Purpose of changing of residence

 Must be on free-will, not compulsion.
 Winans v AG – P from US moved to England on medical advice – didn’t change domicile

*Compulsion will negate intention to change domicile

4) Place of home of wife or children

 Loses importance when marriage Is broken.
 Joseph Wong Phui Lun v Yeoh Loon Goit – went to Singapore for work, found a mistress
and had three children with her.
 Parameswari – applied for
3. Joe who was domiciled in England began working for the University Hospital in January
2008. His initial contract for three years has been renewed for another three. In September
2012, he married a Malaysian citizen and in December, he had his wife bought a house in
Section 12, Petaling Jaya with their joint savings. Joe is a volunteer at the School for
Mentally Retarded Children and has drawn up a long-term project for development of the
school. He has expressed the wish to supervise the project personally and see it through to
completion. He has told his parents that he may never return to England.

Where is Joe domiciled at present?

Joe from England moved to Malaysia.

 There is a change of residence. However, he moved for work (Joseph Wong Phui Lun).
Thus, it negated his intention to change his domicile, since it was not done in his free-will.
 Intention, factors taken into consideration (Melvin Lee Campbell)
- Renewal of employment contract for another three years
- Marries a Malaysian citizen – irrelevant
- Bought a house with his wife in Malaysia
- Voluntarily commits himself to a school for mentally retarded children, which is a long-
term project.
- Expressed he may never return to England

Hence, Joe’s domicile is in Malaysia.

4. Mr. & Mrs. X, domiciled in Malaysia, were divorced in June 2010. Custody of their children
Mark and Mary was awarded to Mrs. X who continued to live in the matrimonial home in
Kuala Lumpur. Mr. X immigrated to Australia.

In January 2012, Mrs. X remarried and moved to Japan where her second husband was
resident and domiciled. Mary who was then fourteen years of age, went with her. Mark
refused to live with his stepfather. In March 1988, Mr. X wrote to Mark on the occasion of
his eighteenth birthday and invited him to live with him in Australia. Mark refused saying
that Malaysia is his home and he intends to live there forever.

Where are Mary and Mark domiciled?

Mary
 Domicile of origin – Malaysia
 Followed her mum to Japan to live with her new stepfather
 Mrs. X actively changed Mary’s domicile to Japan

Mark
 Domicile of origin – Malaysia
 Did not follow mum or dad to Japan or Australia respectively
 At 18 years old, he chose to remain in his domicile of origin (old enough to choose)

Dad’s domicile is irrelevant as he did not actively take the children with him. Children’s domicile
doesn’t change automatically.