Definition Shorter Oxford English Dictionary:  A place of residence/ordinary habitation  The place where one has his permanent residence, to which if absent, he has the intention of returning 6/24/2016 1

 Sir Richard Kindensley VC in HOBES V HOBES : “That place is properly the domicile of a person in which he has voluntary fixed the habitation of himself & his family, not for a mere special & temporary purpose, but with present intention of making it his permanent home unless & until something which unexpected or the happening of which is uncertain shall occur to induce him to adopt some other permanent home” 6/24/2016 2

 RAYDEN & JACKSON’S LAW & PRACTICE IN DIVORCE & FAMILY MATTERS: “Domicile is the legal & normally the factual relationship between a person & a territorial area, subject to one system of law which arises either from his residence there with the intention of making it his permanent or from its being, or having been, the domicile of some person”. - A concept of law to determine what system of law should govern a person’s civil status i.e. in family law 6/24/2016 3

The Difference between Domicile, Citizenship & Residence 1. Domicile  determines a person’s civil status e.g. rights & duties in family law,  a person can have only 1 domicile at any 1 time  no documentary evidence to prove 2. Citizenship  determines a person’s political status e.g. right to vote  can be proven by documentary evidence e.g. IC/Passport 6/24/2016 4

3. Residence  To reside/to have one’s usual dwelling place or abode FOX V STIRK [1970] 3 All ER 7 (CA) 3 principles: 1. A person can have more than one place of residence at any one time 2. Temporary presence does not make a person resident there 3. Temporary absence does not deprive a person of his residence 6/24/2016 5

1. To determine the validity of marriage 2. To determine the jurisdiction of the court in divorce cases 3. To determine the status/legitimacy of child 6/24/2016 6

Types of Domicile 1. Origin 2. Choice 3. Dependency Domicile of Origin  obtain at birth  never destroyed  remain in abeyance when new domicile is required  revived upon relinquishment of the domicile of choice 6/24/2016 7

Domicile of Choice  may be acquired after majority age  2 requirements:  i) Objective -residence -voluntary  ii) Subjective -intention to reside at that place permanently  Objective & subjective requirements must co- exist. 6/24/2016 8

1) Joseph Wong Phui Lun v Yeoh Loon Goit [1978] 1MLJ 236 Chua J: “...the intention to make the residence permanent need not be in existence at the time of his first arrival in the country where the domicile of choice is alleged to be acquired. It may be formed after residence has been continued for sometime. But as soon as that intention is formed then the acquisition of domicile of choice is completed ” 2)Shaikh Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204 6/24/2016 9

3. Udny v Udny (1869) LR 1 Sc & Div IRC v Bullock [1976] 3 All ER Melvin Lee Campbell v Amy Anak Edward Sumek [1988] 2 MLJ 338 Melvin Lee Campbell v Amy Anak Edward Sumek 6. Neducheliyan Balasubramaniam v V. Kohila a/p Shanmugam [1997] 3 MLJ Long Yan Fei v Pauls Baya Long Yan Fei v Pauls Baya 6/24/

Dependency Depends/follows the domicile of another person e.g.:  i) married woman – her domicile will follow her husband’s  Position in England s.1(1) Domicile & Matrimonial Proceeding Act 1973 – after 1st January 1974, married woman may acquire domicile of choice  Position in Malaysia Subject to the old position before 1st January /24/

 ii) child :  legitimate – follows the father even if the parents divorce/father died  illegitimate – follows the mother Case  Ang Geck Choo v Wong Tiew Yong [1997] 3 MLJ 467  Held: The wife’s domicile upon marriage was a domicile of dependency & she retains it until her marriage is dissolved 6/24/

APPLICATION OF RULES OF DOMICILE IN DETERMINING THE VALIDITY OF MARRIAGE 1.Dual Domicile test (DDT)  Both parties must have the capacity to marry according to the law of his/her respective domicile  Case: Re Maria Hertogh [1951] MLJ 64  Exception to DDT Marriage is valid according to the law of the domicile of one party & the marriage is solemnized in the country where that party domiciled which recognised such marriage as a valid marriage 6/24/

Cases: i) Sottomayor v De Barros (1877) 3 PDI  Held: The validity of marriage celebrated in England between persons of whom the one is an English, & the other a foreign domicile is not affected by any incapacity which, though existing under the law of such foreign domicile, does not exist under the law of England. ii) Martin v Umi Kelsom [1963] MLJ 1 6/24/

2. Intended Matrimonial Home Test (IMHT)  Validity of the marriage is determined by the law of the country in which the party intended to set up their matrimonial home  Case: Radwan v Radwan [1972] 3 All ER 1026 Held: The essential validity of a marriage was to be determined by the law of the country in which the parties intended to make their matrimonial home. 6/24/

Only DDT is applicable/recognised  -S.3 Application of LRA  -S. 26 Solemnisation of marriage abroad  -S.48 Jurisdiction of court in divorce proceedings  -S.49 Additional jurisdiction of the court  -S.75 Status of child of void marriage  -S.104 Recognition of marriage contracted abroad  -S.105 Recognition of marriage contracted at the Foreign Embassies in Malaysia 6/24/