FACTORS THAT INFLUENCE STATUS:

STUDY UNIT 6: DOMICILE

Presented by: Mr AR Miggels

2023
 Contents
1. Introduction
2. Defining ‘Domicile’
3. Areas of importance or applicability
3.1 Matrimonial Property
3.2 Law of Succession
3.3 Jurisdiction
4. Different types of Domicile
5. Requirements for (different types of) Domicile
6. Case Studies or Examples
 Definition:
Domicile refers to a place a person is considered to be ‘permanently home’
(in the legal sense). It is usually the place where a person intends to return to
after any temporary absence, and it may be different from a person's physical
place of residence or where they spend most of their time, e.g., Chad is an
international student from Zambia and moves to Cape Town to commence his
studies at UWC. He lives in Rondebosch while studying at UWC for almost
11 months a year. He would then return to Zambia for the holidays as that is
where he is originally from. This he does yearly until he Graduates.

A person's domicile can have important legal implications, such as

determining a person’s eligibility for certain benefits such as inheritance.
In some cases, a person may have homes in different countries, and
determining their domicile can become a complex legal issue.
DEFINITION OF THE CONCEPT ‘DOMICILE’ CONTINUED…

• In Continental legal systems, a person’s status is determined by the law of the

country where the person is a ‘citizen’. In South African law, however, a person’s
status in private law is generally determined by the law of the place where he or she
is domiciled (the domiciliary law). 
• Although the Domicile Act 3 of 1992 modified the common law of domicile, it
cannot be seen as a comprehensive code of domicile. 
• The Act does not have retrospective effect.
• This principle is illustrated by Lenferna v Lenferna ZASCA 204 (2 December 2013).
Domicile has various meanings and is considered extremely ‘elusive’ but the definition
that many academic authors agree on, is the following:
• It is [t]he place where a person is legally deemed to be constantly present,
• for the purpose of exercising his or her rights and fulfilling his or her obligations,
• even when that person is factually absent from that place.
The areas where Domicile plays a significant role
 Matrimonial Property Systems

• This is ideally a Family law issue. However, since it has status-bearing

consequences, we discuss it here.
• The law of the husband’s domicile at the time of his marriage (lex domicilli
matrimoni) determines what the matrimonial property system of the
marriage will be. An ‘immutable’ principle. Unconstitutional?
• This rule also applies to heterosexual civil unions, but not to same-sex civil
union partners.
• Neither does it apply to a ‘woman to woman’ marriage in terms of section
2(2)(c) of the Reform of Customary Law of Succession and Related Matters
Amendment Act 11 of 2009.
• Can this differentiation give rise to Constitutional challenge on the
basis of section 9?
• See the case of Lenferna v Lenferna 2013 ZASCA 204 (unreported).
Law of Succession
 Intestate Succession

• Intestate succession refers to an instance where a person

dies without leaving a valid and enforceable will.
• The law of intestate succession of the country where the
testator was domiciled at his or her death will determine
how the testator’s movable property devolves.
• Where immovable property is concerned, the law of the
place where the property is situated will determine how
the property devolves.
• For example: Testator A dies and has a house in Australia,
two motor vehicles in Johannesburg, and a house in New
Zealand. How will his property devolve?
• If a person dies (intestate) subject to Customary law, their
estate will devolve accordingly.
 Testate Succession
This means that the person (testator/testatrix) left a valid. The law of
the domicile of the testator at the time of executing a will determines:
• Whether the testator has the capacity to dispose of his or her
movable property by means of that will.
• Whether someone has the capacity to inherit.
• Whether the formalities for the execution of a valid will have
been complied with.
• Which legal system will govern the interpretation of a will – if
the testator did not indicate a specific system of law, the law of
the testator’s domicile at the time of execution of the will
prevails.
 Jurisdiction

• Matters involving a person’s status must in general be heard by the

court having jurisdiction in the area where the person concerned is
domiciled. 
• A court has jurisdiction in a divorce action if the parties, or either
of them:
• are domiciled in the court’s area of jurisdiction on the date when the
action is instituted; or
• are ordinarily resident in the court’s area of jurisdiction on that date,
and have been ordinarily resident in South Africa for at least a year
immediately prior to that date (Divorce Act 70 of 1979 s 2(1)).
Types of Domicile
 Domicile of Choice
• This is the domicile a person with capacity to act has
chosen for himself or herself by the exercise of his or
her free will.
• Every person of 18 years or older, and every person
under the age of 18 years who legally has the status of a
major, is competent to acquire a domicile of choice.
• In order to acquire a domicile of choice, a person must
have the mental capacity to make a rational choice.
• Married women are capable of acquiring a domicile of
choice (Domicile Act s 1(1)).
Requirement for Domicile of Choice
Requirement for domicile of choice (cont)
• A prohibited immigrant who is openly permitted by the
authorities to reside in South Africa could acquire a
domicile of choice here.
• A person whose application for refugee status in South
Africa is under consideration, is lawfully present here
and meets the requirement of lawful presence.
• If a person has lived in South Africa and is later
deported, that person’s domicile of choice is terminated
the moment he or she is deported as the residence then
becomes unlawful.
• The prescribed case for this section is: Naville v Naville 1957 (1)
SA 280 (C); recommended: Eilon v Eilon 1965 (1) SA 703 (A),
Smith v Smith 1962 (3) SA 930 (FC) and Cook v Cook 1939 CPD
314.
 Requirement for Domicile of Choice (cont)
• To determine whether a person’s residence meets the lawful
presence requirement, the situation is viewed objectively.
• Once a domicile of choice has been established at a specific
place, the person does not have to be continuously present
there.
• The second requirement for domicile of choice is that the
person must have the intention to remain at the place for an
indefinite period.
• A subjective test is used to determine whether the intention
requirement has been complied with.
Domicile of Choice – Requirements (cont)
• The Domicile Act does not deal with the acquisition of a domicile
of choice by persons who are not free to decide where they wish
to reside.
• Examples of these persons are military staff, diplomats, public
servants, and employees of foreign governments or businesses.
• These persons should be able to acquire a domicile of choice in
South Africa if they comply with the lawful presence and
intention requirements (Heaton).
• Prisoners should be able to establish a domicile of choice in the
place where they are imprisoned, provided they decide to settle
there for an indefinite period after their release (See Nefler v
Nefler).
 Domicile by Operation of Law

The following are examples of a domicile that can be acquired by

operation of law. These are without having a choice to do so:
1. Domicile of Origin

2. Domicile of a minor

3. Domicile of a mentally incapacitated person

 Domicile of Origin
– The Domicile Act provides that no one loses his or her domicile acquiring
another domicile, whether by choice or by operation of law.
– The prescribed case for this section is: Grindal v Grindal 1997 (4) SA 137
(C).
• The Act abolished the doctrine of revival of domicile of origin by providing
that a person’s domicile of origin does not revive except within the
meaning of section 1 or 2 .
• In practical terms, the latter provision means the following:
• A person can establish a domicile where his or her domicile of origin
was if that person acquired a domicile of choice there.
• If the person did not have the capacity to acquire a domicile of choice,
the law can assign a domicile to the person at the place of the domicile
of origin because the person is most closely connected with that place.
 Domicile of Minor
• A minor is domiciled at the place with which he or she is most
closely connected.
• There is a rebuttable presumption that if a minor normally has his
or her home with one or both of his or her parents, the parental
home is the minor’s domicile (Domicile Act s 2(2)). 
• The term ‘parents’ includes a child’s adoptive parents and parents
who are not married to each other.
 Domicile of a Mentally Incapacitated
Persons

• Persons who do not have the mental capacity to make a rational

choice cannot acquire a domicile of choice, but can acquire a
domicile at the place with which they are most closely connected.
• Persons who regain their mental capacity would probably retain
the domicile which they had during their incapacity until they
acquire a new domicile of choice.

Pause for reflection:

What about domicile in the digital age? Is it still relevant? Is time to
consider this concept redundant? If so, what would the legal
implications be? If not, how come?
 REVISION QUESTIONS & ANSWERS
1. Does the Domicile Act 3 of 1992 have retrospective effect? Explain your answer.
A: The Domicile Act does not have retrospective effect. It does not affect any right, capacity, obligation or
liability that was acquired, accrued or incurred by virtue of the domicile a person had at any time before 1
August 1992. Neither does it affect the legality of any act performed before that date. Consequently, the
domicile that a person had at any time before 1 August 1992 will be determined as if the Act had not come
into operation, whereas the domicile that a person has at any time after 1
August 1992 will be determined as if the Act had always been operative
2. Which legal system determines whether the testator has the capacity to dispose of his or her movable
property?
3. Which court has jurisdiction to hear matters concerning a person’s status?
4. Name and briefly explain the two requirements for the acquisition of a domicile of choice.
5. What happens to the domicile of choice of a person who has lived in South Africa and is later deported?
6. Can a person who is not free to decide where he or she wishes to reside (e.g.
diplomats and public servants) acquire a domicile of choice at the particular place?
Explain your answer.
7. Would this concept of Domicile become redundant in the digital age, where people can work anywhere
in the world?