Conflict of Law - Domicile

Topics: Common law, Conflict of laws, Marriage Pages: 21 (7249 words) Published: December 10, 2012
Conflicts of Law: Topic 2
Domicile and other personal connecting factors (Home is where the heart is but does that represent the law?) Lecture 2:
* One of the most important concept of conflicts of law
Significance of domicile
* Decides choice of law in areas of personal law such as marriage, status, succession and taxation. * Important in choice of law in many areas, mainly personal law * Often relevance in other statutes as well. Eg. Case of bankruptcy * Certain legal rights are felt to be personal to the individuals, so even though you travel around in the world, it’s like you take the law with you * Eg. domicile in HK and then living couple of years in the US -> your domicile still governs things like marriage, wills <~ * Eg. a party, who domicile in HK, goes to Saudi Arabia for few months->he takes his marriage rule in HK -> he couldn’t take second wife since that’s not recognized in HK law, the law of his domicile * Eg. if bringing a divorce petition in HK -> you have to be domiciled in HK Domicile Ordinance 2008

* Lex fori applies its own rules on domicile to determine where a person is domiciled. * Technical term person whose domicile is at issue is referred to as the propositus * Ordinance significantly changes the law on domicile in Hong Kong. * To understand it need to know the old law first

* HK is actually ahead of England in this area; HK rules on domicile has significantly changed because of Domicile Ordinance 2008 * Under the common law, there’s a situation that someone is domiciled in one country where he/she has never visited and will never go to. So, there has to be better connection between a person and his/her domicile * Problem here: you can’t really understand the ordinance unless you understand the old law * ***possible exam question might be laws as in today or comparison between old and new law in this particular matter * Issue of Domicile is decided by Lex Fori. Eg. if the case involved someone potentially maybe domicile in the US; in determining whether his domicile is HK or US, the HK court applies its OWN RULES to determine Some general rules

* Everyone has a domicile-s3(1)
* Can only have one domicile-s3(2)
* Old and new law are similar in this aspect
* 1. For the moment you are born, you have a domicile immediately * Eg. if you have rules about nationality, sometimes it doesn’t work. But domicile ALWAYS exists at the time you are born * 2. You can only have ONE domicile

Old law – Domicile of Origin
* Acquired at birth-it is determined by your parents. Father if legitimate; mother if not. * Very artificial as it focuses on parents’ domicile at time of birth which may have little connection to country where child will live in * Areas of uncertainty-child born after father’s death or post divorce; adopted children * Fundamental concept of domicile of origin

* Origin means at the time you are born
* Under the old law, it even took into account of whether parents who were married or not * Under the old law, basically the children follow the domicile of their father at the time he was born if the father was married to the mother that gave birth to the baby * Eg. Dad’s domicile was in HK and then went to the US to study. You were born at that time in US. Even living and born in US, if your dad’s domicile is still HK, then your domicile is also HK * This is the crucial thing about the old law -> when you get older, you can choose your new domicile. But if you don’t want it your new domicile anymore, and not yet decide which domicile you want, then the domicile of origin kicks in * Problem: what happens if father is dead when the child was born? follow mother’s * Problem: child was born post divorce: follow the domicile of the parent that the child is living with * Problem: Adopted children: it is unlikely that a child would take the domicile of his/her adopted...
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