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The Black’s Law Dictionary (9th Edition) defines domicile as the place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.
In Whicker v. Hume (1858) 7 H.L.e. 124, 160, Lord
Cranworth remarked, "By domicile we mean home, the permanent
home….."
The principle of domicile is specifically associated with a
person’s place of permanent residence and dictates the jurisdiction and
the type of laws that apply to that person.
Principles of Domicile
· A person shall not at any one time be without a domicile.
· A person cannot have more than one domicile. Unlike Nationality or Citizenship, a person cannot have more than one domicile.
· A domicile must relate to a territory subject to a single law system.
· A domicile always connects with a place or location of permanent residency.
· A change of domicile may never be presumed, i.e, one must have to prove their change of domicile.
Types of Domicile
· Domicile of Origin / Domicile by Birth
· Dependent Domicile / Domicile by Operation of law
· Domicile of Choice
Domicile of Origin
Domicile of origin is the type of domicile imposed on a
person at the moment of birth. It is based on paternal parentage.
A child born in wedlock takes on the domicile of its father,
and a child born out of wedlock takes on the custodial parent, mother, or father.
When a child is born after the death of their parents, they
take on the domicile of the country in which their father was domiciled at the
time of the father’s death
For foundlings, they adopt the domicile of the place where
they are found.
Dependent Domicile
This is the kind of domicile taken on by persons who depend
on others for sustenance.
This type of domicile does not take into consideration of a
person’s residence or intention to change residence but to whom they are
legally dependent.
The dependent groups of persons include;
· Children/Minors
· Mentally ill persons
· Wives (Formerly)
Minors/Children
Children are persons below the age of 18 years.
Children take on the domicile of their parents.
NB: According to the previous law, it laid down the distinction of children upon lines of legitimacy (being born in or outside marriage).
An illegitimate child was one born in a marriage, while an
illegitimate child was one born outside marriage.
Such a setting of distinguishing children between legitimacy
and illegitimacy was ruled out to be discriminatory.
In the case of Kajubi v Kabali (1944) EACA 14, the
court hinted at the non-discrimination of illegitimate children as far as
succession is concerned. The deceased had 7 children with his wife whom he
married under the Marriage Ordinance. He had 43 children with other mothers,
the children of the wife married under the Marriage Ordinance wanted a bigger
share of the deceased’s estate for her children by virtue of her children being
‘legitimate’. The clan leader distributed the property equally to all the
children of the deceased. This was challenged by the children of the official
wife hence giving rise to this case.
The court of appeal upheld the decision of the clan leader
and held that all children are equal and have rights of succession to a
parent’s property.
The ruling was further cemented by the Succession
(Amendment) Act which repeals the definitions of legitimate and
illegitimate children.
In the case of adopted children, they gain the domicile of
their adoptive parents—Vide Section 43 (3) of the Children Act Cap 59.
In the same breath, foundlings take on the domicile of the
place they are found.
Mentally Ill Persons.
Mentally ill persons maintain the domicile they had before getting
the mental illness.
Married Women
The domicile of a married woman depended on that of their
husband. Once the woman married, she dropped her domicile and took on that of
her husband. Such a hypothesis was based on the common law principle of
marriage, which entails the union of man and woman. Since the two become one,
the wife then adopted the domicile of her husband.
Similarly, this was the position of the Succession Act
Cap 162 under Section 14, where a woman automatically obtained the
domicile of her husband upon marriage.
It was only a divorce or judicial separation that could
break such domicile as held in Attorney General for Alberta V Reata Cook (Privy
Council Appeal No. 16 of 1924).
In Attorney General for Alberta V Reata Cook (Privy
Council Appeal No. 16 of 1924), the woman applied for divorce in Alberta.
Her husband lived in Ontario. In resolving the matter, the court held that the
Alberta court had no jurisdiction to hear the case since she was domiciled in
Ontario.
Although dependent domicile for married women was a thing,
it was abolished by the Domicile and Matrimonial Proceedings Act 1975.
Similarly, in Uganda, dependent domicile for women has been
abolished.
In Law & Advocacy for Women in Uganda V Attorney
General of Uganda Constitutional Petitions Nos 13/05 & 05/06, the
Constitutional Court was tasked to determine whether certain provisions of the Succession
Act Cap 162 are inconsistent with the principles of the
constitution. The court made findings to the effect that the relevant
provisions of the Succession Act were null and void since they infringed fundamental human
rights and violated the provisions of the constitution like equality and
freedom of personal liberty:
Among those was Section 14 of the Succession
Act Cap 162, which only provided for a wife automatically adopt the
husband's domicile upon marriage. Still, there was no provision for a husband to
do the same.
Note: With the new Succession (Amendment) Act,
a spouse can choose to remain with their original domicile or adopt the other
spouse's domicile upon marriage.
Domicile of Choice
Domicile of Choice is the type of domicile that a spouse
chooses to acquire upon marriage or one which a spouse may choose to acquire
after divorce, separation, or attaining the age of majority.
Section 7 of the Succession (Amendment) Act (which
repeals Section 14 of the Principal Act) introduces domicile
of choice where a person may, upon marriage, acquire the domicile of their
spouse and upon dissolution of marriage, or upon Judicial separation or any
other separation under the law they may acquire any other domicile. Previously
a woman's domicile followed that of her husband.
One can also acquire a new domicile after they attain the
age of majority or emancipation if they move to a new place and decides to
reside there permanently.
For example, in Thornhill V Thornhill 1965 EA 268, a
man petitioned the court for the dissolution of his marriage on the grounds of
the wife’s adultery. The petitioner was a non-Ugandan who lived in Ceylon but
had moved and lived in Uganda for four years. He also had shares in a tea
company, which made him have intentions of buying a house in Kampala and making
Uganda his permanent residence. However, he stated that he would only stay in
Uganda if the tea company business worked, otherwise, he would move to another
part of the world.
In resolving the issues, the court held that even though he
was living in a hotel at the moment, he had acquired a domicile of choice in
Uganda.
Relevancy of Domicile in Family Law Matters.
Domicile comes into play in various family matters such as
marriage, divorce, succession, and property.
Domicile helps to determine the personal laws that apply to an individual
In private international law, the principle of domicile
connects a person to the laws of the country in which they are domiciled. A
country of their permanent residence or where they intend to live indefinitely
and not the country in which they reside for short-term purposes.
In Aslandis V Aslandis [1967] E.A 10, the court had
to determine the laws that were to apply to the respondent, who was originally
from Greece, later lived in Kenya, and finally settled in Uganda to operate his
business. The respondent further testified that he intended to permanently live
in Uganda but left his wife and decided to live with another lady.
Court held that the respondent had acquired a domicile of
choice in Uganda; hence the personal laws that were to apply to him were the
Ugandan laws.
Domicile helps to determine jurisdiction in divorce matters
Divorce is the permanent termination or dissolution of a
legally valid marriage by a court of competent jurisdiction.
According to Section 3 of the Divorce Act Cap 249,
where both the petitioner and the respondent in a divorce matter are Africans,
the petition may be filed in a Chief Magistrate or Grade 1 court
where the parties ordinarily reside. Where one of the parties is not African,
the petition may be filed in the High Court.
Furthermore, Section 1 of the Divorce Act Cap 249
does not authorize any court to make a decree for a dissolution of marriage
unless the petitioner is domiciled in Uganda at the time of presenting the
petition or the marriage was solemnized in Uganda.
In Joy Kiggundu V Horace Awori Divorce Cause No.8 of 1998,
the petitioner filed a divorce petition on the grounds of adultery and cruelty
of the respondent, which the court ruled to have no jurisdiction to hear the
matter since the petitioner was not domiciled in Uganda. Although the petitioner
and the respondent had solemnized marriage in Uganda, the petitioner was
domiciled in Kenya, where the respondent lived in their matrimonial house and
by virtue of her marriage to the respondent. Hence, she was domiciled in Kenya at
the time of filing the petition.
Domicile is relevant in Succession Matters.
Since domicile subjects one to a legal system of laws, it is
fundamental in determining a testator's testamentary freedom (person who makes
a will).
Since confusion might arise when a testator has property in
one country but is domiciled elsewhere, domicile comes into play during the
administration of estates and property taxation to determine which country’s laws
apply.
When a person dies leaving immovable property in
Uganda, such property is subject to the property laws of Uganda even if the
deceased might have been domiciled elsewhere at the time of their death.
This is not the case for movable property. Where one
dies, leaving movable property in Uganda, such property is subject to
the country's laws where that person was domiciled before or at the time of
their death. This is provided for by Section 4 of the Succession Act
Cap 162.
In Delahaije Joseph Julius V Kasolo Robins Ellos &
Kisembo John [2019], the respondents' counsel successfully argued
that the court did not have jurisdiction to hear the suit because the subject
matter of the suit was the moveable property of the late Edmond Van Tongeren.
The latter was not domiciled in Uganda at the time of his death.
Furthermore, domicile also helps in determining the formal validity
of a will.
Domicile determines the Validity of a Marriage.
Since parties must conduct marriage according to the laws of
a country, parties must contract marriages according to the laws of where they
are domiciled.
Marriage is the voluntary union of man and woman to the
exclusion of others.
According to the laws of Uganda, marriage is heterosexual.
That is, between a man and woman who have attained the age of majority.
In the case of Cheni V Cheni [1962] 3 All ER 873, a
Jewish couple who were uncle and niece domiciled in Egypt contracted a marriage.
This was an acceptable practice in Jewish culture. The couple had moved to
England, and the wife sought a divorce to nullify the marriage because of
consanguinity. Although this is a valid basis for a divorce decree to be
granted according to English laws, such marriage was acceptable in Jewish
culture.
Hence, the court held that the marriage was valid according
to the parties' domicile at the time of its celebration.
Dependant domicile enables children without parents to acquire a sense of
belonging,
Adoption can be defined as the creation of a parent-child
relationship by judicial order between two parties who usually are unrelated.
The adopted minors will have the domicile of their adoptive parents.
According
to Section 51 of the Children Act Cap 59, upon issuance of an
adoption order, all rights, duties, obligations and liabilities of the
biological parents and guardians pertaining to the child are extinguished and
transferred to the adoptive parents.
Legally, this means that the adoptive parent is then treated as though they were the biological parent of the adopted child.
Where a child is domiciled in Uganda, the domestic laws
governing children and family matters will wherein under Section 43(3)
of the Children Act Cap 59 provides that care of a child shall be
committed to the foster parent, while the child remains in his or her care and
the foster parent shall have the same responsibilities in respect of the
child’s maintenance as if he or she were the parent of the child.
This guarantees orphans and children from impoverished
families acquire the basic needs of life.
The foster children also have a right to inherit their
foster parents’ property under Section 52(1) of the Children’s Act
Cap 59, where an adoptive parent dies intestate, his or her property devolves
in all respect as if the adopted child were the natural child of the adopter.
All this is made possible due to the rights conferred upon
minors by dependent domicile.
To a smaller extent, the principle of domicile seems to
be irrelevant as discussed below;
Domicile of origin seems to be redundant and unnecessary in some instances.
Preferably, a person’s domicile at birth should be
determined by the country with which they have most close connections rather
than acquiring the domicile of a father or mother who may be in another
country. Furthermore, a person will acquire a domicile of choice at the age of
majority and this domicile of choice will continue till the time a new domicile
of choice is acquired, in case the previous domicile of choice is abandoned.
This makes the domicile of origin redundant because the domicile
of choice and dependent domicile can fulfil its rationale.
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Conclusion
In this article, I discuss what domicile is and the
principles and types of domicile. Furthermore, I have also addressed the
relevancy and irrelevancy of domicile in family matters.
The discussion is based on English laws, Ugandan laws, and
case law also, particularly capturing the Succession (Amendment) Act which has
been fundamental in ruling out discriminatory, unclear, and unfair provisions in
succession matters.
I am committed to sharing FREE study guides, and I hope you found this publication helpful.
Also, check out the following;
- Divorce and Separation Laws Uganda
- Adoption (Family Law Notes)
- Equity & Trusts
- Parentage
- Promise to Marry (Family Law)
- Custody of Children (Family Law Uganda)
Disclaimer: This publication is meant for study purposes. Notwithstanding any provision hereof, the contents in this publication are not nor shall they be construed as constituting legal advice or the provision of legal services for or on behalf of any person.