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Study Unit 8 - Domicile - Coggle Diagram
Study Unit 8 - Domicile
It is a connecting factor as it connects the law to a person
- Importance of it - law of the place is given to a person
- Lex loci domicilli - Connects the law of a place to a person where they are domiciled
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Definition - The place where a person in terms of the law is deemed to reside for the purpose of exercising rights and duties
Onus of proof
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Exceptions:
- Immovable property - juristic act
=> Lex loci rei sitae
=> It is not the law where you are domiciled that will apply but the law of the land where the property is situated
- Concluding a contract - capacity to act
=> Lex loci contractus
=> If a contract is concluded in South Africa, then South African law regulates the contract
=> If one travels, wants to conclude a contract in England, despite being domiciled in South Africa, it is the law of the land where the contract is being concluded, therefore England
Grindall v Grindall case
- A woman was born in 1957 in Kenya, was domiciled (of origin) in Kenya (parents lived in Kenya)
- When she was one year old (1958) she immigrated with her parents to South Africa.
- Now domiciled in South Africa, as determined by parents domicile - now operation of law
- 1984 got a British Passport, but retained her domicile in South Africa
- 1995 - married in SA, her husband had permanent residence in SA
- She was domiciled in SA, she couldn't be domiciled in AUS, as she wasn't physically there
- December 1995, moved to Australia, and her domicile changed to Australia.
- She was lawfully and physically present
- March 1996, her and her husband attended a conference in England, went with the intention of attending the conference, thus domicile still AUS as temporary absence doesn't affect domicile
- Marriage ended, husband went back to Australia, and she remained in England
- Her invention was to stay in England, and then move back to SA. She took on a temporary job.
- On 23 December, she instituted divorce proceedings, whilst still in England - she had not moved back to SA yet
- S2 of Divorce Act provides - Divorce proceedings can be instituted either where the parties / one of the parties are domiciled, or where either of the parties are ordinarily resident, and have been ordinarily resident for one year proceeding institution of the action
- She has been living in England, but hadn't been living there for a year - thus couldn't institute an action
- The she tried to institute in SA - because she was going to go to SA anyway
- Arguing that her previous domicile, that before it changed to AUS, namely SA, had revived
- She had given up her domicile in SA
- Court found - she couldn't institute action in SA, as revival in the first place no longer forms part in SA law, secondly it would never have revived to SA
- You maintain your current / last domicile until you achieve a new one
- She was then domiciled in AUS
- She didn't fulfill the requirements of physical presence to achieve a domicile in SA
- She prematurely instituted the action as she didn't have a SA domicile quite yet
- But when she did arrive in SA, all the other requirements had been met, and thus she would achieve her domicile
Types of domicile
Domicile of choice
Sex, marital status
- Up until 1992, in terms of common law, there was a principle of unity which meant a woman would have the domicile of her husband
- Had to do away with this principle
=> Husband would move away to America and the wife wanted to divorce (these times, you had to divorce where you were domiciled)
=> Hugely discriminatory and unconstitutional
=> Denied access to courts
3 Requirements that need to be met to be domiciled in a certain place - Section 1(2) of Domicile Act
- Lawful presence
=> You need to be in a country lawfully
=> Illegal immigrant cannot acquire a domicile of choice
- Physical presence
=> The factum requirement
=> Objective test that a person must physically be there
=> No particular time limit (can establish domicile as soon as they set foot off the plane and other requirements are met)
=> Duration of stay will be an indication of intention
=> Temporary absence does not affect physical presence
- Particular intention
=> Animus manendi requirement - intention to stay
=> A person must have an intention to settle for an indefinite period of time
=> Eilon v Eilon 1965 - The intention must be to settle permanently
=> Domicile Act makes this more flexible
Age restriction
- After the age of 18, domicile of choice
- Regulated by Section 1 of the Domicile Act which determines who qualifies for domicile of choice
=> All persons who are 18 years and older
=> Persons who are younger than 18 years but have the status of a major
=> Provided that they have the mental capacity to exercise this choice
- Reason for age restriction - majority was previously 21 but at 18 they left the nest and the law needed to provide for this
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General principles
- No person can have more than one domicile at any time - Not the same as nationality and citizenship
You don't apply for domicile, it is not determined by your ID book / passport
- No person can be without domicile at any given time
Illegal immigrants
Cannot establish a domicile of choice in SA as they are illegally here, can achieve domicile in SA if they make their immigration lawful
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