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PRIVATE INTERNATIONAL LAW

LECTURE 2
DOMICILE AND OTHER PERSONAL CONNECTING FACTORS
Significance of domicile
Decides choice of law in areas of personal law such as marriage, status, succession and
taxation.
Domicile Ordinance 2008
Lex fori applies its own rules on domicile to determine where a person is domiciled.
Technical term person whose domicile is at issue is referred to as the propositus
Ordinance significantly changes the law on domicile in Hong Kong.
To understand it need to know the old law first. NB also old law still relevant if the issue
of domicile before March 2009 needs to be decided S13
HK brought in this ordinance to try and improve on the weaknesses of the common law
position
Must know the old law as well as the new law (cannot understand the new without
understanding the old)
o There will be cases where only the old law applies
If there is a dispute over Domicile you either apply the old law or new law, you cannot
mix and match
o If someones domicile (2014) is to start at the time they were born and work
through to the present day to decide which law should apply. But whether the old
law or new law applies, you look at it individually and should not mix them
Some general rules
Everyone has a domicile-s3(1)
o You cannot NOT have a domicile
o Best connecting factor is nationality, but some people have dual nationality and
some people are stateless, therefore most jurisdictions do not use nationality as
a connecting factor
Can only have one domicile-s3(2)
o From the moment you are born, you have a domicile, but a foetus does not have
a domicile it is from the time of birth
Old law-Domicile of Origin
Acquired at birth-it is determined by your parents. Father if legitimate; mother if not.
o If your parents were married at the time of your birth, you would take the
fathers domicile.
o It is not focused on the place of birth
o Legitimate child born after Fathers death/divorce has mothers domicile at the
time of birth
Very artificial as it focuses on parents domicile at time of birth which may have little
connection to country where child will live in
Areas of uncertainty-child born after fathers death or post divorce; adopted children
o Adopted children under common law have a very unclear position under common
law. Under the old ordinance, an adopted child should be treated as if born to its
adopted parents. However immigration cases have tried to argue that as far as a
child is concerned, must focus on the father who is the natural father and not
adopted father.

PRIVATE INTERNATIONAL LAW


LECTURE 2
If relevant parents domicile at the time of birth is impossible to determine, a childs
domicile of origin will be deemed to be the first place where the child is known to have
been (CHAN CHUNG HING v WONG KIM WAH)

Domicile of Origin hard to lose


Traditionally courts very reluctant to conclude domicile of origin was lost-reflection of
British Imperialism
High burden of proof. cExample RAMSAY v LIVERPOOL ROYAL INFIRMARY
o R was born in Scotland and moved to England (Liverpool). He stayed there for 34
years before he died. During that time he never left England apart from one
holiday where he visited the US, but otherwise stayed in England all his life. He
had not wanted to go back to Scotland and wanted to be buried in England when
he died, but was quite proud to be a Scottish.
o COURT: Had he ever acquired a mental intent to change his domicile from
Scotland to England? NO
Described him as a boring individual, colourless, inaction. The main reason
he came to England was because of his brother and his family (he relied
on his brother for his income). Questioned the reason he came. He never
gave up his Scottish domicile, as he did not have the intent to stay in
England, but to stay with his brother and family (whichever country they
went to)
Domicile of Dependency
Applied to individuals lacking full legal capacity-children (up to age of 18) and married
women!
o In England, 16
o In the old days married women followed the domicile of their husbands.
Antiquated, but helpful because all the family members would end up with the
same domicile
o Applied even in the event of separation (abolished in HK in 1996)
Same as person on whom dependent- husband in case of married woman and father if
child legitimate, mother if not. Also follows mother if father dead.
Very artificial and what happens re children if parents die or divorce?
Domicile of Choice
Can be acquired once 18.
Test =residence + intention to make a permanent home in the country
o Be physically in the country where it is to be the country of your domicile
o Subjective intention (place you want to spend your last days, stay and die)
Intention is subjective potential for lots of disputes-especially as often it will involve
ascertaining the intention of a deceased person! IRC v Bullock
o Party was alive at the time of his case
o He had been living in England a very long time (44 years). He was a pilot in the
war and stayed in England after the war ended.
o He kept his Canadian passport, and never attempted to vote in English elections
etc. Crucial evidence that he was lacking intent was that he had lived in England
for so long. He said that his wife didnt like Canada and that was the only reason
he stayed in England, and that if she were to die, he would be on the first boat
back to Canada.

PRIVATE INTERNATIONAL LAW


LECTURE 2
No act, no circumstance in a mans life, however trivial it may be in itself, which ought
to be left out of consideration... Kindersley VC in DREVON v DREVON 1864

Domicile of Choice-Intention
In FULD (No 3) LORD SCARMAN (approved in WONG ZHONG LAN XIANG v
WONG[2003]HKC 609) said
Intention, formed independently of external pressures, of residing there indefinitely. If
a man intends to return to the land of his birth upon a clearly foreseen and reasonably
anticipated contingency e.g. the end of his job, the intention required by law is lacking;
but, if he has in mind only a vague possibility, such as making a fortune (a modern
example might be winning the football pools), or some sentiment about dying in the
land of his fathers, such a state of mind is consistent with the intention required by
lawno clear line can be drawn ..decision in each case one of factif his mind be not
made up or evidence be lacking or unsatisfactory as to what is his state of mind ,his
domicile of origin adheres
DOMICILE of CHOICE
..the court must look back at the whole of the deceaseds life, at what he had done
with his life, at what life had done to him and at what were his inferred intentions in
order to decide whether he had acquired a domicile of choice in England by the date of
his death, Soren Kiekegaards aphorism that Life must be lived forwards ,but can only
be understood backwards resonates in the biographical data of domicile disputes per
LJ Mummery in AGULIAN v CYANIK [2006] EWCA Civ 129. Quoted with approval in
HOLLIDAY v MUSA [2010] EWCA Civ 335
HOLLIDAY
o Man who had been born in Cyprus and lived in England for a very long time
o ISSUE: had he formed an intent to remain in England for the rest of his life
o He had a great love for the country of his birth, but the crucial things that
persuaded the court that he had an intent to stay in England for the rest of his
life were that he had married; him and his wife had moved into a brand new
home in England, he had never bought any property in Cyprus. In the year before
he died he had holidayed at a number of places but NOT in Cyprus. They also
looked at the diary he kept, where he had an entry where he had said he LIVES
in England but VISITS Cyprus.
o COURT: clear words that England was his permanent home and that he only
intended to go to Cyprus for holiday.
Domicile of Choice
For the most recent cases in HK courts on this issue on the old law) see Re ESTATE of
GAO YUAN [2007]HKEC 810 and also RE IP PUI MAN NINA [2011] 3HKLRD
RE IP PUI MAN
o Singapore vs Hong Kong
o Party in question was born in Hong Kong and lived there all her life (Domicile of
origin), had she acquired a domicile of choice in Singapore?
o Since my heart breaking up with my intimate boyfriend, I suffered an emotional
breakdown, I decide to leave Hong Kong, which I believed to be a place of
traumatic experience and agonizing memory for me. I went to Singapore, I
became much happier when stay with my friends in Singapore. I decide to stay
there for time to come. I am taking up part time study in Singapore to upgrade
myself

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LECTURE 2
o Evidence is not enough to show that her domicile is Singapore. She is only
staying there to get over the breakup with her boyfriend until she is emotionally
stronger by which she will come back to Hong Kong again.
RE ESTATE OF GAO YUAN
o Man who was born in the mainland and came to work in Hong Kong. Inflexible
patter, he would come at the beginning of a working week, stay in his mainland
employers quarters during the week and at the end of the working week (when
he had a holiday) he would go back to GZ where he had a house and a wife and
a family.
o HE ha acquired permanent HK ID, a bank account in HK, but those were
considered very minor things. A lot of mainlanders have a HKID for reasons of
travel convenience, and a place where you have a bank account has no legal
significance.
o Court decided that he failed to show any clear evidence of an impermanent
intent to stay in HK
o He then retired and went back to live in Mainland.
o SECOND ARGUMENT (WIFE): He was back in the mainland, had a son who was
being educated in the UK. Family plan was that once the son graduated in the
UK, he would come back to HK to work there and then the family would join the
son in HK and stay there for the rest of their lives.
o COURT: Did not establish HK domicile. If they had accepted his story, it would be
no good because he needs physical presence in HK at the time that he had the
intent, they must go hand in hand. It is no good that he had the intent if he was
not yet physically in HK.
See also English cases Re ESTATE of LOUCAS HAJI-IOANNOU [2009]EWHC 2310(QB)
and DIVALL v DIVALL [2014] EWHC 95 (the common law rules on domicile are well
summarised in par 24-38 of this judgment)
RE ESTATE OF LOUCAS HAJI-IOANNOU
o Born in Cyprus, moved to Monaco, he had a home and business there. He
became ill and wanted the best treatment. As he was a natural greek speaker, he
wanted to seek medical help in Greek. HE bought a home in Athens and moved
there and had business interests there too. The treatment he was receiving was
very long term, spending 10 years there, which never cured and he passed away.
o Had he acquired a domicile of choice in Greece?
o NO, he had only come to Greece for medical treatment, if the treatment was
successful, he would have moved back to Monaco. If that had ended successfully
he would have gone back to his original country. No evidence of a permanent
intent to stay in Greece.
DIVALL v DIVALL
o Mainland lady married an English. They planned to live in Holland where he
would work. She could not get a visa for Holland, she goes to England and gets
British citizenship, and eventually she manages to get a visa. Children in Holland,
marriage breaks down.
o ISSUE: Divorce proceedings, domicile at the time of the petition.
o Evidence was very clear that she had a permanent intent to stay in Holland. Both
her children were fluent Dutch speakers, were completely integrated into the
Dutch education system and she had met a new man whom she wanted to marry
and he was Dutch

Change of Domicile of Choice

PRIVATE INTERNATIONAL LAW


LECTURE 2
Presumption against a change must be proved on a balance of probabilities. Compare
proving change of domicile of origin
Court would analyse all the evidence as to whether there was an intention to cease to
reside permanently in the current domicile of choice - makes trial long and expensive.
See SEKHRI v RAY [2014] EWCA Civ 119-better to read first instance judgment [2013]
EWHC 2290 (Fam).
o He wanted to the divorce to go to Indian and she wanted it to go to England. She
went to the English court to establish she had a domicile in England. Evidence at
CFI, legal fees on the issue of domicile had raised to almost 1mil pounds, just
deciding where domicile was.
o Complex case, both with an Indian background. Man born in England and
became a senior partner in an American law firm and was travelling all around
the world for business.
o Wife had domicile of origin in India, when she was born in England that was her
fathers domicile. She became a very successful doctor in England and her plan
was for a major medical career in England. Her husband was sent by his law firm
to Singapore and wanted her to go with him, which she did for a year. HE was
trying to argue that by doing this she had lost her domicile in England.
o COURT: you keep your domicile until you acquire a new one. In order for her to
lose her English domicile, she would have to prove that not only was she
physically elsewhere, but that she had no intention of ever coming back to
England, and there was no evidence of that.

Domicile of Choice
Problem where a person goes to a country with a federal system such as Australia
which state did they intend?
Physically in Australia, but a question of mental intent. He is not sure whereabouts in
Australia he is going to settle. He has not acquired a domicile in one of the states in
Australia.
Domicile of origin-Revival
If domicile of choice is abandoned and not replaced domicile of origin revives UDNEY v
UDNEY
Revival often produces bizarre consequences resulting in a person having a domicile in
a country they have never visited.
The domicile of origin was the default position in the old law. If you have lost a domicile
of child and are yet to replace it, you are defaulted back to the domicile of origin

UDNEY v UDNEY
o Domicile of origin in Scotland, came to England and spent a long time there, and
acquired a domicile of choice in England. He lost a lot of money, and his creditors
were closing in on him. He decided to leave England, not to return because of his
debts.
o He went to France, though did not like it, lived there.
o Domicile of ScotlandEngland Physically in France but no intent to stay there
o Legal position was that his domicile of origin Scotland reverted, a country he had
not been to for a long time and no intent to ever go back to, but that is the
doctrine of revival.

Other Possible Personal Connecting Factors

PRIVATE INTERNATIONAL LAW


LECTURE 2

Nationality
o E.g. Singapore national is presumed to have Singapore domicile
Habitual (Ordinary )Residence
Permanent right of Residence/Right of abode
Advantages over domicile-easier proved and more understandable to the ordinary
person.
Disadvantages-may have more than one nationality and is the connection to a country
sufficiently strong to justify its laws applying?

Changes made by the Domicile Ordinance 2008


Abolishes the following:
o Domicile of Origin and the Revival rule
o Domicile of Dependency
o Domicile of Choice-the permanent intention to reside test
Applies if the issue of a persons domicile from March 2009 is relevant. If Ordinance
applies you apply it ..as if this Ordinance had ..always ben enforce S 14 .NB do not
apply old law up to March 2009 and new law thereafter.
Domicile of children s4
New law trying to achieve a better fit between where a person is most closely
connected to and their legal domicile. This wasnt achieved in the old law.
Domicile will be the country child is most closely connected to. Court can take into
account childs preferences where parents are in different countries S 11(2).
o Question of fact
Parents domiciled in same country presumption child most closely connected with that
country S 4(2)
If parents domiciled in different countries presumption is that child is most closely
connected with the parent s/he has a home with S4(3)
o No presumption applies if the two parents are domiciled in different places but
the child lives with both
Domicile of Married Women s14(3)
Domicile of dependency rule abolished, she is now treated like everyone else!
Domicile of Adults s5
Once 18 retain domicile you had immediately before but take on a new domicile if
present in a country with the intention to make a home there for an indefinite period.
(Quaere does the change from permanent to indefinite intent make any real
difference to the law?) (S5(2))
If you have not acquired a new domicile under the old law the domicile of origin reverts
In the NEW law, you keep whatever domicile you have until you have acquired a new
one. There is no reversal
The fact that an individuals presence in a place is unlawful does not preclude a
determination that domicile has been acquired in that place (s7). HOWEVER, does not
acquire a presence in HK unless s/he is lawfully present there (s6(1))- Lawfulness is
presumed unless the contrary is proven (s6(2))
Domicile of Adults s5

PRIVATE INTERNATIONAL LAW


LECTURE 2
Continue with your existing one(s9) until a new one has been proved on a balance of
probabilities (s12)-no reversion to domicile of origin

Problem of moving to a country with more than one law territory s10
In old law, if an individual has yet to decide in which territory of that country to settle
indefinitely, his domicile of origin revived and s/he did no acquire a new domicile of
choice in any territory of that country
If not yet formed an intention to make a definite home in one territory then domiciled
in the territory for the time being you are most closely connected with.
X goes to HK with an intention to stay in the PRC indefinitely but not sure yet whether
this will be HK or Mainland then X domiciled in the law district ..he is for the time being
most closely connected with
E.g. someone with a Canadian domicile coming to HK, cannot decide whether to spend
the rest of his life in HK, and is between the two. S10 would apply and would say that
he spends sometimes in the Mainland and sometime in HK, his domicile will be
whichever the judge thinks he is most closely connected with at the time being.
DOMICILE ORDINANCE 2008
The only reported cases to date on the Ordinance are Y v W [2011]HKEC 1270(In this
case the point at issue was Ws domicile in February 2011 so strictly speaking only the
new law was relevant but the court considered the question whether W was domiciled
in HK under both the old law (common law) and the Ordinance (new law)) and W v C
[2013] 2 HKLRD 602 CA
o Had to prove that he was domiciled in HK, after leaving the mainland he spent 11
days in HK to get his child the right of abode in HK
o Judge and counsel were very confused whether to apply the old law or new law,
and in the end applied both, coming to the same conclusion
YvW
o Mainland, studied in US, coming back to HK to have her son here, got married in
HK
o She left HK and spent her time in various parts of the mainland
o Under the old law, her domicile of origin was Mainland, when she went to the US
it was just to study (no domicile of choice), when she came back to HK, even she
had decided to stay under the old law, would be irrelevant because she married
a mainlander and would have acquired his domicile.
o Under the new law, no evidence of intention to stay in HK indefinitely
o Look at the amount of time she spent in Mainland vs HK. She only visited HK on
average for 10% of the year, this was not evidence of intent to stay in HK (She
only came over to shop)
Reading on Domicile
Johnston 7.001 -7.015
Clarkson & Hill Chap 6 up to p327
Law Reform Commission of Hong Kong Rules For Determining Domicile April 2005
htpp://www.hkreform.gov.uk
Example Old Law
A DO=HK - Lives India but no DC there or anywhere else
B, As son born India DO=As at time of Bs birth =HK

PRIVATE INTERNATIONAL LAW


LECTURE 2
Bs DO =Hong Kong a place he has never visited and has no connection with!
Example-Old Law DO Revives
HK man DO =HK

Emigrates NSW DC lives there 40 years

Decides to retire to Western Australia- leaves NSW but dies before getting to Western
Australia!

Domicile =HK!
Example Domicile Ordinance
D born/domiciled Mainland PRC

New York DC

Back PRC permanently but has homes in HK and Shanghai. Undecided where he wants
to settle
Domicile?
Example Domicile Ordinance
Facts of Re Joness Estate
DO England

DC Iowa

Decides to return England for good but dies when ship he is a passenger on is
torpedoed before it reaches England
Domicile?
o In the old law, he would have given up his domicile in Iowa and acquired a
domicile of choice
o In the new law, he would have kept his domicile until he gets a new one, which
he did not, because he never got to England
o So could not comply with the rule of presence in the new jurisdiction. Under the
new law, his domicile of Iowa would be retained