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LAW OF PERSONS
FACTORS AFFECTING STATUS
DOMICILE
DOMICILE (lex Domicilii)
DOMICILE ACT 3 of 1992
Civil Unions Act:
CASES: No Prescribed cases but
Grindal v Grindal
Both the factum of residence and animus manendi are required
to establish domicile.
Elion v Elion
Baker vs Baker
The test of animus manendi.
members of the armed forces: A soldier can acquire domicile
in the country where he is not stationed.
Mc Millan v Mc Millan
Members of the armed forces cannot acquire domicile
in the country where they are stationed.
Nefler v NeflerLifelong
imprisonment
confers
domicile
at
the
place
of
imprisonment.
Naville v Naville
A diplomat can acquire domicile in the country where he is
stationed.
Smith v Smith illegal immigrants cannot acquire domicile of choice in a country
they entered illegally.
Toumbis V Antoniou
A propositus (i.e. the subject of the case) can acquire domicile
of choice even when they have a temporary residence
dependant on the pleasure of the Minister of Home Affairs.
4.1
INTRODUCTION
Because legal systems differ, it is of the utmost importance to determine which
legal system determines a persons status.
i.e. according to WHICH legal system it must be determined WHETHER and
to WHAT extent a person has
Legal Capacity
The capacity to
Capacity to Act
The capacity to
Capacity to Litigate Capacity to be held
The capacity to
accountable
for
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LAW OF PERSONS
FACTORS AFFECTING STATUS
have rights and
perform
duties
juristic acts i.e.
enter
valid
into
DOMICILE
be a party to a
crimes and delicts
law suit
contract
A persons status is determined by the law which is in force where that person
is domiciled. (lex domicilii)
Example:
According to South African Law, a person under the age of 18 years may
not marry without parental consent. However according to English Law a
person may marry without parental consent if they are over the age of 18.
Most continental legal systems determine a persons private law status
according to the law of the country in which they are a citizen.
However, in South Africa a persons status is determined by the place in
which they are domiciled. (lex loci domicilii)
4.2
DEFINITION OF DOMICILE
Domicile is the place where a person is
legally deemed
to be constantly present
for the purpose of:
Exercising her rights
-
And
Fulfilling her obligations
even in the event of her FACTUAL ABSENCE.
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FACTORS AFFECTING STATUS
DOMICILE
4.3
IMPORTANCE OF DOMICILE
A persons lex domicilii is important in various fields of private law:
i.e. in determining whether a child is legitimate or extra-marital,
one would look to the law of the country where the childs
domicile of origin is.
in the Law of Succession.
It is the Law of Intestate Succession of the Country in which the
DECEASED was DOMICILED at the time of her death which
will determine how her MOVABLE PROPERTY should devolve
should she die intestate.
It is the lex domicilii of the Testator at the time of EXECUTING
the Will which will determine whether she has the CAPACITY to
dispose of her movable property by means of that Will.
A persons domicile will determine whether they have the
capacity to inherit or not.
Domicile will also determine the system of Law according to
which a Will is to be INTERPRETED.
Unless the Testator has indicated a specific system of Law, the
Law of the place where the Testator was domiciled when the
WILL was EXECUTED will prevail.
The domicile of the HUSBAND at the time of the marriage
dictates what the MATRIMONIAL PROPERTY REGME of the
marriage will be. See Frankels Estate v The Master
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FACTORS AFFECTING STATUS
DOMICILE
This principle is IMMUTABLE and it is irrelevant if the
husband later changes his domicile.
This is logical because ones matrimonial property regime cannot
chop and change according to where the husband is domiciled.
e.g. a man who is domiciled in South Africa travels to England to
study there. Whilst there he marries an English woman. Because he
is domiciled in South Africa, although in fact residing for the time
being in England, the patrimonial consequences of the marriage will
be determined by South African law. South African law states that a
marriage is IN COMMUNITY OF PROPERTY unless the parties
concluded an ANC before entering into the marriage.
The difficulty arises in terms of same sex marriages. The Civil
Unions Act does not prescribe how domicile is to work in same
sex marriages. Thus if a South African man married an British
man in Canada, there is a problem of whose domicile would
govern the patrimonial consequences of marriage are yet to be
determined. In Minister of Home Affairs v Fourie the
problem was recognized, and the courts suggested that South
Africa look at the German position before passing any
legislation authorizing same sex marriages. However, despite
the Courts advising the legislature, the legislature chose to
ignore the courts and the problem remains.
Domicile plays a role in the Law of Procedure as it could be a factor
determining which division of the High Court has JURISDICTION in a
particular case.
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FACTORS AFFECTING STATUS
DOMICILE
Generally the Plaintiff must sue the Defendant out of the court in the
area where the Defendant is domiciled or resident as that court has
jurisdiction over the Defendant.
A matter regarding a persons status must be heard by the Court
having JURISDICTION
in the area where that person is
DOMICILED.
Domicile is a factor in determining the INTERNATIONAL
JURISDICTION for a FOREIGN COURT in order to recognize and
enforce an order of such Court.
4.4
GENERAL PRINCIPLES GOVERNING DOMICILE
The domicile Act 3 of 1992 came into operation on the 1st August
1992.
This Act is not retrospective.
This means that the Act DOES NOT AFFECT ANY
RIGHT
CAPACITY
OBLIGATION
LIABILITY
which was
Acquired
Accrued
Incurred
by virtue of the Domicile a person had at ANY TIME PRIOR to the date
in which the Act came ito operation.
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LAW OF PERSONS
FACTORS AFFECTING STATUS
DOMICILE
o Furthermore the Act does not affect the LEGALITY of any act performed
before that date.
There are three basic principles which govern domicile.
Every
person
must The
changing
have a domicile at all persons
times
a No
domicile
never
of
is
because
can
have
is domicile in more than
accepted ONE PLACE at the same
T WITHOUT PROOF
his
one
time.
a
O
Thi
nce a person has
s is logical as one needs
largely dependant on
established
to have a domicile in
his domicile in law.
domicile,
it
is
order
accepted
that
he
persons status.
persons
status
is
I
t is for this reason
retains that domicile
that the law cannot
until
allow a person to be
CONTRARY
without a domicile.
PROVED.
the
is
establish
A
person
cannot
be
without status.
to
This matter has not
been finally decided by
his is determined on
the Courts, however the
majority
BALANCE
OF
PROBABILITIES.
of
South
African authors submit
that a person cannot
have more than one
domicile at the same
time.
TB pg 39 Study Guide pg 53
4.5
KINDS OF DOMICILE
Our Law recognizes 3 types of domicile
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LAW OF PERSONS
FACTORS AFFECTING STATUS
Domicile of Origin
Domicile of Choice
DOMICILE
Domicile by Operation of
Law (assigned domicile)
4.5.1
Domicile of Origin
This is also called a persons ORIGINAL DOMICILE.
It is the domicile that the law assigns to her AT BIRTH The general
rule is that a legitimate child takes the domicile of its father, and an
illegitimate child, the domicile of their mother.
The Domicile Act provides that no one loses their domicile until they
have acquired another domicile whether by
Choice
OR
Operation of Law
The Act specifically provides that a persons domicile of origin DOES
NOT REVIVE unless
She/he Acquires a domicile AND The Law assigns a domicile to
of choice
him/her at the place where her
place of origin was because he/
she
is
MOST
CLOSELY
CONNECTED with that place.
Prior to the coming into operation of the Act, a persons domicile of
origin
revived if she abandoned her domicile of choice without
assuming a new domicile.
A persons domicile of origin, has because of the provisions of the Act,
lost its significance.
Its only function is that it is the FIRST DOMICILE assigned to a
person and is simply an example of a domicile by operation of Law.
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LAW OF PERSONS
4.5.2
8
FACTORS AFFECTING STATUS
DOMICILE
Domicile of Choice
This is the most important kind of domicile.
Section 1(1) of the Domicile Act provides that regardless of
Sex
Or
Marital status
everyone who is above or over 18 years
AND
everyone UNDER the age of 18 years who LEGALLY has the status
of a major
Is COMPETENT to acquire a DOMICILE OF CHOICE
UNLESS
She/he lacks the MENTAL CAPACITY to make a rational choice .
Prior to the coming into operation of the Act a wife ( according to the
common law) automatically acquired her husbands domicile at
marriage and followed that domicile whenever he changed it
irrespective of whether she was present at that particular place or
whether she had the intention of residing there permanently. This
applied even if the parties had separated and the wife was, for example
living in another country!
This was called a DOMICILE OF DEPENDENCE.
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LAW OF PERSONS
9
FACTORS AFFECTING STATUS
DOMICILE
Children also used to has a domicile of dependence, which was the
domicile of their guardian.
The Act also provides that a person below the age of 18 may
acquire a domicile of choice but this will only be so if the person has
the status of a major.
So we see that in order to acquire a domicile of choice a person must:
1.
be over the age of 18
o
2.
have the status of a major;
and
3.
have the mental capacity to make a rational choice;
Our Law has two further requirements:
4.
FACTUM: The person must ACTUALLY SETTLE at a
particular place (factum) objectively determined
and
5.
ANIMUS MANENDI The person must have the INTENTION
OF RESIDING PERMANENTLY at that place (that is the
animus) subjectively determined.
Although the last two requirements need not come into being
simultaneously,
they
must
at
some
time
or
another
exist
simultaneously.
e.g. A person may first settle at a particular place and only at a later
stage form an intention of settling there.
a)
Factum requirement objectively determined
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FACTORS AFFECTING STATUS
DOMICILE
This means that the person must actually settle at a particular place.
The Domicile Act will only recognize a persons LAWFUL
presence for the purposes of domicile of choice.
An illegal alien can thus not acquire a domicile of choice in South Africa,
despite the fact that they might have the intention of settling here permanently.
In Van Rensburg / Ballinger the court held that a prohibited immigrant whom
the authorities had openly permitted to reside in South Africa could acquire a
domicile of choice here.
People who are DEPORTED from South Africa LOSE their domicile
in this country, even if they intend returning to South Africa. This is
because their return to South Africa would be unlawful and as
indicated above the Domicile Act only recognizes a LAWFUL
presence for purposes of recognizing a domicile of choice.
Should a person leave their place of domicile in order to escape the
process of law, she will not lose her domicile at the place from which
she has fled. (A fugitive from justice).
The object of this is to prevent the fugitive from relying on the courts
not having jurisdiction to hear the matter and thereby escaping the
consequences of their misconduct. This rule is based on public policy.
To determine whether a person has actually settled at a particular place
(the factum requirement) is determined OBJECTIVELY.
There is no specific period of actually physically residing there,
however it is insufficient if the person is simply a visitor to that place.
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FACTORS AFFECTING STATUS
DOMICILE
A persons residence in a particular place is irrelevant, provided that a
person was physically present at that place, where she INTENDED to
stay AND that her residence was LAWFUL.
The courts may however take into consideration the DURATION of
the PHYSICAL PRESENCE to infer from that whether the person had
the INTENTION of remaining at that place.
Once a domicile of choice has been established because it has met with
all the above requirements, that persons continued presence is not
required.
This is why, for example, if we go on an extended trip overseas, we
will not lose our domicile of choice merely because we are overseas
and not at home.
b)
Animus requirement subjectively determined
Remember this means that the person must have the intention of
residing permanently at that place.
There used to be uncertainty regarding the interpretation of the word
permanently.
The common law authors described the animus as
the INTENTION NOT TO LEAVE the particular place.
at
other
times
the
INTENTION
PERMANENTLY at a particular place.
OF
RESIDING
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LAW OF PERSONS
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FACTORS AFFECTING STATUS
DOMICILE
Furthermore the Courts were not unanimous with regard to the
DEGREE of permanence required in order to satisfy the
animus requirement.
The Appellate Division also delivered conflicting judgments on
this issue.
In Eilon v Eilon 1965 the AD interpreted the animus
requirement very strictly and stated that it was met if:
the person had a fixed and deliberate intention to abandon his
previous domicile , and to settle permanently in the country of
choice and that a contemplation of ANY CERTAIN OR
FORESEEABLE event on the occurrence of which residence in
that country would cease , EXCLUDES such an intention. If he
entertains ANY DOUBT as to whether he will remain or not,
intention to settle permanently is likewise excluded.
The minority decision in this case stated, however, that:
the enquiry does not involve a scrupulous and solicitous
investigation as to whether perhaps in the future he might not in
certain circumstances decide to remove his permanent home..
The view of the minority decision in Eilon v Eilon was accepted by the
legislature and Section 1(2) of the Domicile Act now provides that the
animus requirement is met if the person has the INTENTION OF
SETTLING in a place FOR AN INDEFINITE PERIOD.
Therefore a person can satisfy the animus requirement even if
they intend moving at an unknown future time.
In order to satisfy the animus requirement the person must be able to
carry out the intention of settling at the particular place.
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LAW OF PERSONS
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FACTORS AFFECTING STATUS
DOMICILE
The question arises whether certain persons such as military
staff, diplomats, employees of foreign governments and
prisoners etc. are capable of acquiring a domicile of choice at the
place where they are stationed, posted or imprisoned. This is
because it is their employers or the State who/which will decide
where they are to reside and that they therefore cannot give
effect to their intent of settling at a particular place.
The common law provided that such people were incapable of
acquiring a domicile of choice at the place where they were so
stationed, posted or imprisoned.
The domicile Act does NOT EXPRESSLY deal with this situation, that
is whether a person who is not free to decide where he/she wants to
reside, may acquire a domicile of choice at the place where they are
stationed, posted or imprisoned etc.
The Act does not expressly exclude a person whose presence at a
particular place is not BY CHOICE from acquiring a domicile of
choice there.
It could therefore be argued that:
In terms of section 1 of the Act
And
Because the Act does not expressly
state that such people can meet the
provided the person is over the age animus requirement even though
of 18
their ability to give effect to their
And
intention is limited by for example
has the required mental capacity, employment or imprisonment, the
such
person
is
competent
establish a domicile of choice.
to Common Law still applies in this
respect.
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LAW OF PERSONS
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FACTORS AFFECTING STATUS
DOMICILE
This view is preferred by the
authors of the Text Book.
The Common Law position is as follows:
i.
Military staff
Soldiers can acquire a domicile of choice where they are stationed.
In Baker vs Baker the Court held that soldiers could acquire a
domicile of choice at a place where they are NOT stationed.
ii
Diplomats, Public Servants, Employees and Officers of Foreign
Offices or Businesses.
In Naville vs Naville the Court decided that a foreign
diplomat could acquire a domicile of choice in South Africa
whilst still in service of a foreign country.
The same principle should apply in respect of public
servants
and
employees
and
officers
of
foreign
governments and businesses.
TB pg 44 SG pg 55
iii.
Prisoners
A prisoner cannot acquire a domicile of choice at the place
where he is imprisoned, as he/she is not there of their own
free will.
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FACTORS AFFECTING STATUS
DOMICILE
In Neffler vs Neffler it was decided that a prison who had
been imprisoned for life AUTOMATICALLY acquired a
domicile of choice in prison.
4.5.3
Domicile by Operation of Law (Assigned Domicile)
Section 2(1) of the Domicile Act states any person does not have the
capacity to acquire a domicile of choice, will be domiciled at the place
with which he is most closely connected.
He will therefore acquire a domicile by OPERATION OF THE
LAW.
Who are these people who cannot acquire a domicile of choice?
Children under the age of 18
AND Mentally
incapacitated
persons
This assigned domicile will continue for as long as their minority or
incapacity continues.
The Law will assign to them a domicile to which the person is MOST
CLOSELY CONNECTED.
Domicile of a Child
o
Domicile
of
Mentally
Section 2 of the Domicile Incapacitated Person
Section 2(1) of the
Act: the child is domiciled at the o
place where he/she is most
Domicile Act persons who
closely connected.
do
not
have
the
mental
capacity to make a rational
o
S2(2) There is a rebuttable
choice
cannot
acquire
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LAW OF PERSONS
FACTORS AFFECTING STATUS
presumption
that
if a child
domicile of choice and acquire
his/her
a domicile at the place where
KNOWINGLY has
home with ONE or BOTH of his
they
parents that parental home is the
CONNECTED.
domicile.
For purposes of the Domicile
Act, a child is a person under the
age of 18 who does not have the
status of a major.
Domicile is assigned to a
minor under the age of 18 who is
unmarried.
When a minor reaches the
age of 18,
OR
attains the status of a major
(marries) assigned domicile is
retained until domicile of choice
is established.
The Act provides that the
term parents includes
a) adoptive parents
b)
parents
who
are
not
married to each other.
DOMICILE
There is no distinction
between legitimate or illegitimate
children.
are
most
CLOSELY
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LAW OF PERSONS
17
FACTORS AFFECTING STATUS
THE
DOMICILE
