FAMILY LAW [domicile notes]

Information about FAMILY LAW [domicile notes]

Published on June 8, 2020

Author: AmaliaSulaiman2

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1. AMALIA SULAIMAN UKM LAW SCHOOL 2020 WEEK 2: DOMICILE LAW 1. Where do you live? • Domicile • Permanent Place 2. Definition of ‘domicile’ Oxford Dictionary: ‘dwelling place’ [formal word] Law: ‘a place where you live permanently’ Section 3 (2): a citizen in Malaysia is deemed to be domiciled in Malaysia unless the contrary is proved. 3. Definition of ‘domicile’ under the English Law: Civil Law Act (CLA) 1956: • Forbes v Forbes (1854) Facts: A domiciled Scotsman, having ancestral property but no house in his native country, by accepting a commission and serving in the Indian Army, abandoned his domicil of origin and acquired an Anglo- Indian domicil. He afterwards attained the rank of general in the Indian Army and was made colonel of a regiment, and then left India with the intention of not returning thither, but came to Great Britain, where he lived part of the year in a house which he had built on his estate in Scotland, and part in a hired house in London, under circumstances which, if he had been a single man, would have given him again a Scottish domicil; but his wife and establishment of servants resided constantly at the house in London. Held: This fact counterbalanced the effect of the other circumstances and proved that his intention was permanently to reside in England, and he must be considered to have abandoned his acquired domicil in India and acquired, by choice, a new one in England. ‘Habitation must be fixed voluntarily. Not for a mere temporarily purpose but with a present intention of making it your home’. • A man cannot have two domicils, at least with reference to the succession to his personal estate. • Legitimate children acquire by birth the domicil of their father. • An infant cannot change his domicil by his own act.

2. AMALIA SULAIMAN UKM LAW SCHOOL 2020 • A new domicil cannot be acquired except by intention and act; but, being in itinere to the intended domicil, is a sufficient act for this purpose. • But the strongest intention of abandoning a domicil, and actual abandonment of residence, will not deprive a man of that domicil, unless he has acquired another. • Whicker v Hume (1858) Facts: A was born in Scotland. When he was young he went to East Indies for 20 years under contract of service. He then returned to Scotland and lived in Edinburgh. After a few years, he left Edinburgh in anger, the banking business had come to an end, and he took off his name from the books of the municipality and of the various societies (act), and declared his intention never to return to ‘‘Auld Reekie’’ (animus menindi). Now, he lived in London. At the end of some years he went to Paris. He left his works in London, and likewise some ornamental furniture which he wants his friend to keep it until he returns to claim it. He died in Paris, having just before made a will in English form, as ‘‘of Edinburgh’’ ‘‘now residing in ... Paris’’: Held: He had lost his Scottish, and obtained an English domicil. Lord Cranworth V-C, has defined domicile as: “By ‘domicile’ we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it. I think the best I have heard is one which describes the home as the place (I believe there is one definition in which the ‘lares’ are alluded to), the place ‘unde non sit discessurus si nihal avocet; unde cum profectus est, peregrinari videtur.’ I think that it is the best illustration, and I use that word rather than definition, to describe what I mean.” • Garthwaite v Garthwaite (1964) Facts: The husband and wife were married in England. Both had British nationality and were both domiciled in England. Later, the husband obtained the decree of divorce in USA. The husband by then was already domiciled and resident in New York. The wife presented a petition for a declaration that her marriage to the husband was a valid and subsisting marriage. The wife brought her petition within

3. AMALIA SULAIMAN UKM LAW SCHOOL 2020 extended jurisdiction conferred by Matrimonial Causes Act 1950, s 18 (1) (a) (repealed), based on her residence in England. Held: The wife’s domicile follows the husband’s domicile. Thus, the decree of divorce obtained by the husband in USA shall prevail. Per curium: a wife cannot acquire a de facto domicil independent of her de jure domicil, since domicil is something everyone acquires by operation of law and is the inevitable legal consequence of a state of facts; thus, a person can have only one domicil at any time. Wilmer, Danckwerts, Diplock L.JJ.; ‘It is not possible to have more than one domicile at one at the same time’. 4. Importance of Domicile • One’s status: legitimacy of a child [a legitimate child will follow the domicile of the father whereas an illegitimate child will follow the domicile of the mother. • The capacity to get married: To get married is determine by one’s domicile. IN RE MARIA HUBERDINA HERTOGH; INCHE MANSOR ADABI v ADRIANUS PETRUS HERTOGH AND ANOR, [1951] 1 MLJ 164 (Natrah’s case) Facts: 13 years old, Maria was married to Adabi. Maria’s parents opposed to the marriage plead the court to declare the marriage was void. Maria’s parents also submitted that the custody of Maria should be under the parents. Held: The female infant in this case was domiciled in Holland and as there was no evidence that the domicile of Mansor Adabi was Singapore, the law of Holland would be applicable to determine the validity of the marriage. The marriage would be void by the law of Holland the appellant had not shown that there was a valid marriage between him and the female infant and therefore the custody of the infant was rightly given to her parents.

4. AMALIA SULAIMAN UKM LAW SCHOOL 2020 • The capacity to obtain a divorce decree: Section 48 (1) (c) of LRA 1976- to obtain a decree of divorce, both parties must be domiciled in Malaysia. MELVIN LEE CAMPBELL v AMY ANAK EDWARD SUMEK [1988] 2 MLJ 338 TAN CHIAW THONG J Facts: In this case, a joint petition for divorce was made. According to section 48(1) of the Law Reform (Marriage and Divorce) Act 1976, a court can grant a decree of divorce only if both parties were domiciled in Malaysia. The issue before the present court was whether the husband petitioner was domiciled in Malaysia at the time of presentation of the petition. Held: There are two essential elements involved in determining the domicile of choice and these are the factors of residence and the requisite intention to reside permanently for an indeterminate period in the country where it is alleged that the petitioner has adopted the domicile of choice. The burden of proving the abandonment of his domicile of origin and the acquisition of a domicile of choice in Malaysia falls squarely on the husband petitioner, the husband petitioner had not succeeded in showing that at the time of the presentation of the joint petition his domicile was in Malaysia. Therefore, the court has no jurisdiction to entertain the joint petition. JEYASAKTHY KUMARANAYAGAM v KANDIAH CHANDRAKUMARAN [1996] 5 MLJ 612 VISU SINNADURAI J Facts: The husband petitioner (‘the husband’) is a British citizen, whilst the wife petitioner (‘the wife’) is a Sri Lankan citizen. The parties were married in London on 23 February 1985 and had two children. In July 1991, the family moved to Malaysia as the husband took up employment in the University of Malaya. During their stay, differences arose and in March 1994, a joint petition for divorce was presented at the Kuala Lumpur High Court. The husband subsequently fled to England with the two children with no intention of returning. The husband had also withdrawn his consent to the joint petition. The wife wished to proceed with the divorce application. Held: Dismissing the application (1) before any divorce proceedings may be heard, the court has to satisfy itself that the domicile of both the parties was in Malaysia at the time the petition was presented;

5. AMALIA SULAIMAN UKM LAW SCHOOL 2020 (2) as the parties were not domiciled in Malaysia at the time the petition was presented, the court clearly did not have the jurisdiction to entertain this petition; Additional jurisdiction in proceedings by a wife 49. (1) Notwithstanding anything to the contrary in paragraph 48(1)(c), the court shall have jurisdiction to entertain proceedings Law Reform (Marriage and Divorce) 35 by a wife under this Part, although the husband is not domiciled or resident in Malaysia if— (a) the wife has been deserted by the husband, or the husband has been deported from Malaysia under any law for the time being in force relating to the deportation of persons, and the husband was before the desertion or deportation domiciled in Malaysia; or (b) the wife is resident in Malaysia and has been ordinarily resident in Malaysia for a period of two years immediately preceding the commencement of the proceedings. DOMICILE OF ORIGIN The law will attribute you a domicile once after you are born [automatically] The domicile of origin depends on: • The status of the child [legitimate or illegitimate] Legitimate children acquire by birth the domicile of their father whereas illegitimate children the domicile of the mother. • Domicile of the parents Udny v Udny (1869) Facts: The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He visited Scotland frequently but had no residence there. In 1844, he sold the lease and his personal possessions and left London for France to avoid his creditors. But he did not intend to reside permanently in France. His first wife died in 1846, and he formed a liaison with the respondent’s mother who, in 1853, gave birth to the respondent in London. He married her and went back to Scotland thinking that he would thereby legitimise the respondent, avoid his creditors and bar the entail on his estates. He intended to stay in Scotland because he thought he would be safe from his creditors.

6. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Held: The father had lost his domicile of choice in England and that his domicile of origin had revived. The court set out the tests establishing domicile. The House quoted Scott in La Virginie: ‘It is always to be remembered that the native character easily reverts, and that it requires fewer circumstances to constitute domicile in the case of the native subject than to impress the national character of one who is originally of another country.’ Lord Westbury remarked in Udny v Udny (1869) “That no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate.” DOMICILE OF CHOICE The elements that need to be fulfilled: • Animus menindi (intention to reside permanently in that country) • Residence (must prove that he/she has a house or work that binds him to stay in that country) [see: Fox v Stirk (1970) 2 QB 463] Lord Widgery’s celebrated description of a residence, ‘a place where a man is based or where he continues to live, the place where he sleeps and shelters and has his home. It is imperative to remember in this context that residence implies a degree of permanence. Consequently, a person is not entitled to claim to be resident merely because he pays a short temporary visit. Some assumption of permanence, some degree of continuity, some expectation of continuity is a vital factor which turns simple occupation into residence.’ #If the father dies, the child can take the mother’s domicile. The mother could change the child’s domicile and it must not be for the purpose of malice. Potinger v Wightman (1817) Facts: TP, a native of England, domiciled in Guernsey died intestate, leaving a widow, and infant children by her and also by a former wife. The widow, after his death, was appointed guardian of the children by the Royal Court of Guernsey, after which she came to England with her children, and was domiciled there. Whether their shares of the property had become distributable according to the law of England, or of Guernsey.

7. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Held: The law of England should govern the succession, the domicil of the children being to follow the domicil of the surviving mother, where no fraudulent intention can be imputed. But fraud may be presumed, where no reasonable cause appears for the removal. Re Beaumont case: Facts: A Widow domiciled in Scotland remarried English domicliary; she acquired England domicile of dependence; she relocated to England, leaving daughter in Scotland. Held: The child’s domicile remained Scottish; change of child’s domicile is “result of exercise by mother of power vested for welfare of infants, which in interest, she may abstain from exercising” Rationale: court did not want to make child’s domicile dependent on step-father. WINANS AND ANOTHER APPELLANTS; AND ATTORNEY-GENERAL RESPONDENT. [1904] A.C. 287, [1904] A.C. 287 Facts: The House of Lords held that a man of American domicile of origin who spent his last thirty eight years of his life in England has not acquired a domicile of choice of England. He has retained his domicile of origin as he had hope to go back to America. He intended to return to Baltimore where he was setting up a business and also dreamed of acquiring a large house in order to live and work there for the whole scheme. According to Lord Macnaghten: “When he came to this country he was a sojourner and a stranger, and he was I think a sojourner and a stranger in it when he died.” ‘A domicile of origin is tenacious; the character of domicile of origin ‘is more enduring, its hold stronger, and less easily shaken off’ than domicile of choice because a change in domicile may involve ‘far reaching consequences in regard to succession and distribution and other things which depend on domicile.’

8. AMALIA SULAIMAN UKM LAW SCHOOL 2020 DOMICILE OF DEPENDENCE Unmarried children under 16 years of age cannot acquire a domicile of choice and instead acquire a domicile of dependence. This mirrors the father's domicile if the parents are married or the mother's domicile if the parents are unmarried or the (married) father has died. If married parents separate, the child acquires the domicile of the parent with whom he lives. If a child with married parents shares his time between the homes of birth parents, he retains the domicile of his father. The children under 16 and mentally disable person acquire a domicile of dependence which changes with the change of their guardian. In later life, the child can acquire a domicile of choice after becoming independent and can also abandon it without acquiring a new one. At that stage the domicile of origin will revive. Harrison v Harrison. Facts: Harrison had a domicile of origin of England. When he was eighteen, his parents moved to South Australia leaving him in England. According to the rules of that time he acquired the domicile of dependence of South Australia. At the age of twenty he moved to New Zealand, got married there and decided to settle there permanently but shortly after, he came back to England, where he turned twenty one. His wife initiated the divorce proceedings in England. Held: English courts had jurisdiction to try the case because when Harrison turned twenty one, he had lost his domicile of dependence of South Australia. As he did not acquire any domicile of choice therefore his domicile of origin revived automatically. It shows that domicile of origin not only manages to revive after the abandonment of domicile of choice but also when domicile of dependence finishes or where a domicile of choice is lacking, as it was illustrated in Harrison v Harrison. DOMICILE OF WIFE Malaysia follows the Common law thus before 1974, wives would follow their husbands’ domicile. NOW [2020]; The wife could choose whether to take on the husband’s domicile. Singapore Women’s Charter enables women to choose their domicile of choice.

9. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Teo Ka Fook v Loo Chiat Hui [2010] MLJU 0636 Facts: The husband (petitioner) and the wife (respondent) were married on 1990 in Kuching and have two children, the eldest being born on 1991 and the youngest, on 1996. The husband petitioner has filed a petition to dissolve the marriage on ground that the wife respondent has behaved in such a way that he is not reasonably expected to live with her. However, the wife has filed a summons in chambers to strike out the petition on the ground that the Family Court of Western Australia ("Australian Court") had already dissolved the said marriage on 24.3.2009 which order took effect on 24.4.2009. The wife respondent claimed that both the husband petitioner and herself are domiciled in Australia as they are permanent residents of that country although they still make frequent trips to Malaysia to visit their family and friends. Held: In this case, the wife respondent has been residing in Australia since 2003. Her children have been largely brought up in the country and the youngest is finishing her tertiary education there. There is a matrimonial home there where she lives and she only comes back for holidays with her children as sworn in her affidavit filed in this case and in addition, she has sworn an affidavit in support of her divorce petition in Australia that she intended to reside there permanently. I am satisfied on this evidence, particularly her long residence in Australia and her acquisition of permanent residence status there that she has discharged the burden of proof to show an abandonment of her domicile of dependence in Malaysia in favour of a domicile of choice in Australia. This consideration, in my view, is important to strengthen the prayer of the wife respondent that this petition be dismissed. ANG GEEK CHOO v WONG TIEW YONG [1997] 3 MLJ 467 – wife’s domicile follows the husband’s Facts: The petitioner wife in this case is a citizen of Singapore and was legally married to the respondent since 1987. Following the marriage, the petitioner left Singapore and came to live with the respondent in Malacca. The marriage, though blessed with three children, subsequently turned sour, and beginning 1991 the petitioner started to suffer abuses and beatings by the respondent. In July 1996, following continuous assaults by the respondent, and after attempts at reconciliation had failed, the petitioner left for Singapore and took up employment there. In March 1997, while residing in

10. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Singapore, the petitioner petitioned for divorce. Section 48(1)(c) of the Law Reform (Marriage and Divorce) Act 1976 stipulates that no decree of divorce would be issued unless Malaysia was the domicile of the parties when the petition was presented. Before the learned Judge herein, the respondent raised a preliminary objection that the petition had contravened s. 48(1)(c), as the petitioner, by staying away from Malaysia for 9 months preceding the petition, had in effect abandoned her domicile in Malaysia. The issue was whether the petitioner, by so staying and working in Singapore, had by conduct shown a clear desire to abandon Malaysia as her place of domicile. Held: There are two essential elements involved in determining the domicile of choice, namely, the factors of residence and the requisite intention to reside permanently for an indeterminate period in the country where it is alleged that the petitioner has adopted the domicile of choice. The concept of nationality and the issue of domicility are two totally different concepts which deserve different and separate treatments. Consequently, it would be fallacious to think of “residence” and “domicile” as being synonymous. The respondent not only had not succeeded in proving the animus but also the factum. The facts showed that when she was in Malaysia the petitioner had already exercised her choice by making Malaysia her place of domicile. The petitioner cannot be said to have abandoned Malaysia as her place of domicile merely by her remaining a Singaporean and seeking employment in Singapore during the temporary period. The petitioner’s return to Singapore was clearly due to the abusive behaviour of the respondent. Her act was never pursuant to a free choice and therefore cannot be construed as unequivocal. There was also no evidence that the petitioner had “burnt his boats” as to indicate a desire to permanently move back to her country of origin. JOSEPH WONG PHUI LUN v YEOH LOON GOIT [1978] 1 MLJ 236 Fact: The petitioner sought for divorce praying that his marriage to the respondent be dissolved under s 82(1)(e) of the Women’s Charter (Cap 47) (hereinafter called the Charter) on the ground of seven years’ separation. The parties were married in 1952 at Selangor under the provisions of the Civil Marriage Ordinance 1952. They were born in Kuala Lumpur and there are six children of the marriage. The petitioner came to live in Singapore leaving his wife and family in Kuala Lumpur in 1967, to set up a partnership firm. He continued to be a partner of a firm in Kuala Lumpur and returned to Kuala Lumpur weekly and stayed at the matrimonial home. In March 1968, after a quarrel with his wife (over his affair with one P) he stopped staying at the matrimonial home whenever he came to Kuala Lumpur. In 1969 he decided to live with P in Singapore. In 1970, the petitioner became a permanent resident

11. AMALIA SULAIMAN UKM LAW SCHOOL 2020 of Singapore. In mid 1968 he resigned from two clubs in Kuala Lumpur and sold his interest in the Kuala Lumpur firm. He became a member of two clubs in Singapore in 1968. The petition was defended on two grounds: (i) the court had no authority to make a decree as the domicile of the parties at the time when the petition was presented was not in Singapore (s 80(1)(c) of the Charter) and (ii) on the merits and and upon a true interpretation of s 82(1)(e) of the Charter, a decree should not be granted. Held: A clear evidence is required to establish a change of domicile. In particular, to displace a domicile of origin in favour of the domicile of choice, the standard of proof goes beyond a mere balance of probabilities. the oath of the person whose domicile is in question as to his intention to change his domicile is not conclusive. The question for the court is whether upon a review of all the circumstances it gives credit to his evidence; (3) it is always material, in determining what is a man’s domicile, to consider where his wife and children live and have their permanent place of residence or where his etablishment is kept. But where the marriage has broken down, as in this case, the residence of the wife loses it significance; (4) the domicile of the parties to this marriage was in Singapore at the time when the petition was presented; (5) when a petition is based on the ground of seven years’ separation, ‘no question of fault on the part of the petitioner enters into the picture at all’ and the amendments contained in s 82(1)(e) and s 82(2)(g) are designed to put an end to marriages where the parties have been separated for at least seven years and are unlikely to be reconciled; (6) when a petition is presented under s 82(1)(c) or s 82(2)(g), the fact that the respondent wishes to continue with the marriage is not a valid ground for refusing to grant a dissolution of the marriage. KHOO KAY PENG v. PAULINE CHAI SIEW PHIN 2014 10 CLJ 403 HIGH COURT MALAYA, KUALA LUMPUR YEOH WEE SIAM J Facts: The plaintiff (‘husband’) filed this application on the same day that he was served with the petition for divorce issued by the defendant (‘wife’) in the High Court of Justice in England and Wales, Family Division (‘English High Court’). In the present application, the husband sought orders that he be exempted from the requirement for reference to a conciliatory body under s. 106(1) of the Law Reform (Marriage and Divorce) Act 1976 (‘LRA’) and that he be at liberty to petition for a divorce under

12. AMALIA SULAIMAN UKM LAW SCHOOL 2020 s. 53 of the LRA without first having to refer the matrimonial difficulty to a conciliatory body. The parties were lawfully married in Malaysia on 5 December 1970 and had five children. In 1982, the family, namely the wife and the first three children, moved to Australia. The husband continued to live in Malaysia and travelled between Perth and Malaysia. In 1989/1990 the family, namely the wife and the children moved from Australia to Canada while the husband travelled between Malaysia and Canada. Since 2012, the wife and their last child lived in England. On 17 October 2014, the English High Court held that the wife’s habitual residence was in the English jurisdiction in the twelve months preceding the issue of her petition for divorce and as such, that the English High Court had jurisdiction over the wife’s petition. The English proceedings in effect had decided that the English High Court was the appropriate forum for the divorce proceedings between the parties. The issues to be tried in the present proceedings were as follows: (i) whether the wife was domiciled in Malaysia; (ii) whether this court had jurisdiction to try the matter; and (iii) whether this application should be allowed under s. 106(1)(vi) of the LRA. Held: (allowing the husband’s application) (1) Section 48(1)(c) of the LRA requires both parties to be domiciled in Malaysia at the time when the petition was presented. The burden of proof was on the husband to prove that both he and the wife were domiciled in Malaysia. The husband was never permanently in England. He was still living in Malaysia. Since the husband was a citizen of Malaysia, he was deemed under s. 3(2) of the LRA to be domiciled in Malaysia. (2) By virtue of s. 3(1)(a) of the Civil Law Act 1956, the common law of England and rules of equity as administered in England on 7 April 1956 apply to Peninsular Malaysia. From 7 April 1956 until the time when the LRA came into force on 1 March 1982, the common law rule on a wife’s dependent domicile applied in Malaysia. It meant that a wife’s domicile is a domicile by dependence, and it automatically follows that of the husband’s domicile upon marriage. When the LRA was enacted in 1976, Parliament did not deem it fit to introduce new law in Malaysia to abolish the common law rule on a wife’s dependent domicile. Hence, the Malaysian courts have continued to apply the common law rule that a wife’s domicile is dependent on her husband’s domicile. The common law rule on a wife’s dependent domicile operates so long as the marriage subsists. (3) As long as the marriage was subsisting, the wife in the present case had no legal right to choose her own domicile independent from her husband’s domicile. Even if the wife’s renunciation of her citizenship was accepted by the Malaysian Government under art. 23 of the Federal Constitution, the fact that the wife was no longer a Malaysian citizen made no difference to the law regarding her domicile of dependence. Domicile is not the same as nationality or citizenship, or residence.

13. AMALIA SULAIMAN UKM LAW SCHOOL 2020 (4) Since both parties were domiciled in Malaysia, and they fulfilled the requirements of s. 48(1)(a) and s. 48(1)(c) of the LRA, the Malaysian Court therefore had jurisdiction to hear any petition for divorce filed by the husband.

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