Saturday, February 26, 2011

Dependent domicile-Family Law


© Kayondo M Silver
A domicile is a place at which a person has been physically present and that person regards as home; a person’s true, fixed, principal and permanent home to which that person intends to remain even though currently living elsewhere.[1]
A dependent person is one who relies on another for support; one not able to exist and sustain oneself without the power or aid of someone else.
At Common Law, the general rule was that a dependent person is unable to acquire a domicile of choice by his own act; in general, the domicile of such a person is the same as and will change in accordance with the domicile of the person on whom he/she is dependent.[2]  
Originally, there were three categories of persons that were regarded as being subject to a domicile of dependence and these included; married women, children/minors and the mentally disturbed.
The rationale was that such persons lacked the capacity to form the necessary intent to acquire a domicile of choice.
However, in England, the law on the above subject matter was greatly changed by the enactment of the Domicile and Matrimonial Proceedings Act of 1973 and these changes will be examined hereunder.
For married women, prior to 1st January 1974, the rule was that a married woman attained the domicile of her husband and her domicile was subject to change with that of her husband.
 This rule was based on the Common Law principle of the unity of the husband and wife which was even supported by the highest courts in the land as seen in Lord Advocate vs. Jaffery [3] where a husband and wife were domiciled in Scotland and the husband left to live in Queensland with the consent of the wife. He contracted a bigamous marriage in Queensland. The wife remained in Scotland where she passed away. Proceedings were brought in Scotland to determine the domicile of the deceased wife. On appeal, the House of Lords held that the wife was domiciled in Queensland even though she had never visited there. Her domicile was inseparable from that of her husband.
This rule was so clearly and firmly established that only a divorce decree and not any other judicial separation could bring it to an end as illustrated by the Privy Council decision in AG for Alberta vs. Cook[4]  where a wife acquired a decree of judicial separation. She then presented a petition for divorce in Alberta, where she lived. Her husband retained his domicile of origin in Ontario. On appeal, the Privy Council held that the Alberta court had no jurisdiction to hear and determine the divorce petition because the jurisdiction was dependent on domicile and the woman remained domiciled in Ontario. Lord Merrivale explained the basis of the decision in these words;
‘‘… the contention that a wife judicially separated from her husband is given choice of a new domicile is contrary to the general principle on which the unity of the domicile of the married pair depends.’’
However, the law regarding dependent domicile and specifically the aforementioned doctrine and Lord Merrivale’s rationale witnessed a very significant change later as the same was regarded as incompatible with the changing views and opinions as to the equality of sexes as it clearly rendered the wife subordinate to her husband. For instance, in Gray vs. Formosa[5], Lord Denning, MR termed the same doctrine as ‘‘constituting the last barbarous relic of a wife’s servitude.’’
Subsequently, the dependent domicile of the wife doctrine was abolished in England by The Domicile and Matrimonial Proceedings Act, 1973 which is to the effect that;
The domicile of a married woman is at any time after the coming into force of this Act shall instead of being the same as her husband’s by virtue of only marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.[6] 
However, it is imperative for me to note that this was not a retrospective legislation and therefore, if a problem arises in respect of a domicile of a woman married prior to 1 January 1974 when the Act came into force, then the old common law position is invoked. A woman married prior to the above date will continue with her domicile of dependence.[7] 
This new position of the Law is largely evident in IRC vs. Duchess of Portland[8] where a tax payer had a domicile of origin in Quebec, but married her husband in 1948 and acquired a domicile of origin in England. She continued making trips to Quebec and in the proceedings before court; it was argued on her behalf that in 1974, she had acquired a domicile of choice in Quebec by virtue of the summer visit she paid to the same place. Nourse, J turned down this submission citing that the effect of Sec. 1(2)[9] was to confer a domicile of choice to which could only be lost by ceasing to reside in England, without any animus revertendi.[10]  
It is equally imperative for me to note that the above change in the law has not yet affected Uganda. The Statutes here maintain the old Common Law position as obtained from England.
The Succession Act, Cap 162 Laws of Uganda is to the effect that;
By marriage, a woman acquires the domicile of her husband, if she had not the same domicile before.[11]
Subsection 1 of Section 15 of the same Act stipulates that the domicile of  a wife during marriage follows that of her husband  and subsection 2 of section 15 is a provison to subsection 1 of section 15 and provides that;
The domicile of a wife no longer follows that of her husband if they are separated by an order of a competent court of law.
It is also interesting to note that in Ireland, The Domicile and Recognition of Foreign Divorces Act, 1986 prospectively abolished the Common Law dependent wife domicile rule which had remained in place for marriages prior to 2nd October 1986. The same was declared totally unconstitutional by the Supreme Court, (which is the highest court in the land) in the case of W vs. W[12]
A wife can also lose the domicile of dependence if the husband dies. In Sculland Smith vs. Brook and another[13], Ethel Mary Sculland (the testatrix) left her husband in 1908 and never lived with him anymore. The husband had an English domicile which he retained till his death on 5th February 1955. The wife lived in various places till around 1946 or 1947 when she finally settled down in Guernsey with an intention of staying and residing there permanently until her demise. The issue before court was whether at the time of her demise the deceased was domiciled in Guernsey. The court held after her husband’s death, the deceased wife showed continuous and permanent intention of residing permanently in Guernsey. Therefore, she had a domicile of choice in Guernsey at the time of her demise.
For children/minors, the general rule at Common Law is that upon birth, a legitimate child acquires the domicile of its father[14] while an illegitimate child acquired the domicile of its mother.[15] Minors are those persons under the age of 16 in the United Kingdom whereas in Uganda, they are persons under the age of 18.[16]  Minors are entitled to live with their parents or guardians.[17]
In England and Uganda, the domicile of a minor follows the domicile of the parent from whom the minor derived his/her domicile of origin.[18]
In English Law, the position of the law in respect of particular cases concerning children can be summarized as below;
After the mother of an illegitimate child has died, or both parents have, in the case of a legitimate child, the child will continue with the domicile of dependence until he is capable of acquiring an independent domicile.[19]
In England and Uganda, a child is capable of acquiring an independent domicile when reaching the age of 16 (18 in the case of Uganda) or if he/she marries under that age[20]  but in Uganda, the Constitution provides that a man and woman are legally entitled to marry only if they are each of the age of 18 and above.[21] Section 13(2) of the succession Act of Uganda states that, the domicile of a minor does not change with that of the minor’s parent if the minor is married or holds any office or employment in the service government or has set with consent of the parent in any distinct business.
In cases of an illegitimate child whose parents are living apart and where the child has a home with the mother, then the child will acquire the domicile of the mother, and in such a circumstance, if the child lives with the father, he/she will acquire the domicile of the father.[22]
In situations where the father dies, the domicile of the child will normally follow that of the mother. This is also the case in those situations where the mother leaves the child with a relative when moving to a new country.[23]
In the case of an adopted child, such child will be treated as if he/she were the natural child of his adopted parents. Thus from the date of adoption, if not earlier, he will have the domicile of his/her parents.[24]  The Children Act cap 59 section 43(3) states that a foster parent in whose care child is committed shall, while the child remain in his or her care, have the same responsibilities in respect of the  child’s maintenance as if he or she were the parents of the child.
The last category of persons under the dependent domicile doctrine is the mentally disordered persons or persons of unsound mind. These include persons suffering from mental derangement.[25]
Under Common Law, it is generally agreed that an insane or any other mentally deranged person in the same category is unable  to change his/her domicile because he/she lacks the legal capacity to form the independent intent  which is a requirement to the attainment of a domicile of choice.[26]
From the above cited authority, a person who becomes incapable and not competent enough to manage his/her own affairs because any mentally disordered person retains the domicile he/she had prior to the date of such mental illness or disorderliness.
In England and Ireland, where the victim of such illness is less than 16 years of age and 18 years in Uganda’s context, the domicile of the mentally disordered will change with  that of his/her parents.[27]
The Succession Act of Uganda provides that an insane person cannot acquire a new domicile in any other way than by his/her domicile following the domicile of another person.[28]
On the part of the relevance of dependent domicile in Uganda today, the above doctrine has both positive and negative impacts in society which will be discussed hereunder.
Positively, the doctrine links persons to our legal system. As the learned author argues in ‘‘Conflict of Laws’’, domicile in general, and dependent domicile in particular is one of the legal concepts, distinct from nationality or residence that link a person with a particular legal system.[29]For instance, In case of a legitimate child whose parents’ later divorce and the father does not provide for the child, the doctrine of dependence domicile will provide that the child assume the domicile of the mother.
In Hope vs. Hope[30],MacDermott L.C.J, while passing a judgment that the legitimate child should assume the domicile of its mother, commented in the following words;
  “…that the father’s domicile control must be based on the authority and responsibility that a father has to act for his child … in this case the mother had divorced from the father and the father was being irresponsible.’’
This helps to settle key questions of law in general, and Family law specifically. For instance, questions on adoption, capacity to marry, property inheritance, court’s jurisdiction to hear and determine such applications and a like can be answered after establishment of one’s domicile.
The doctrine is also useful in providing key answers in matters relating to questions of private International Law. A case in point is Aslanidis vs. Aslanidis[31] the wife petitioned on the respondent’s domicile in Uganda. It was proved court that the he (the respondent husband) came to East Africa with a Greek domicile of origin but was born in Egypt. He moved from Kenya to Uganda in 1957 and continued to live in Uganda since he was a sales proprietor of a business in Uganda. The respondent also testified that he intended to stay in Uganda indefinitely. The respondent however left the wife and decided to reside with another lady and child. It was held that he was domiciled in Uganda because he had acquired a domicile of choice in Uganda.
The doctrine helps unfortunate and underprivileged minors like orphans and the mentally disordered persons to acquire a sense of belonging in the community. For instance, in the case of minors, through adoption. The adopted minors acquire the domicile of their foster parents who are to treat the adopted child as if it were their own biological child.  Section 43(3) of the children Act is to the effect that;
 a foster parent in whose care a child is committed shall, while the child remains in his or her care have the same responsibilities in respect of the child’s maintenance as if he or she were the parent of the child.
The mentally disordered maintain the domicile they had prior to the insanity or any other mental illness while those who are still minors continue to be attached to their parents’ domiciles.
The dependent domicile rule guarantees the right of adopted children to inherit property from their deceased adopters (foster parents). The Children Act stipulates that;
Where an adopter dies intestates, his or her property shall devolve in all respect as if the adopted child were the natural child of the adopter.[32] 
The doctrine can be said to promote unity and the bond of marriage in some instances/families since the domicile of the wife becomes that of her husband at marriage and is subject to change with the change in her husband’s. Lord Merrivale in Cook’s case (ibid) observed that;
“…the contention that a wife judicially separated from her husband is given choice of a new domicile is contrary to the general principle on which the unity of the domicile of the married pair depends.”
Negatively, the doctrine creates artificiality in the unity between the married spouses in some regards. For example, as seen in Jaffrey’s case (ibid), the wife’s domicile was adjudged to be in Queensland even though she never even paid a single visit to her husband there. The ruling was primarily based on the fact that they were married and the husband left for Queensland with her consent.
Furthermore, in divorce applications, they can only be heard, determined and executed in the country/jurisdiction where both parties were domiciled and for purposes of this course work question, Uganda.[33] 
Furthermore, in Joy Kiggundu vs.Horace Awori[34], the petitioner filed a decree seeking to dissolve her marriage to the respondent who was domiciled and lived in Nairobi, Kenya where at the time the couple got issues in the marriage when the husband committed adultery with named women, cruelty to the petitioner occasioned on the person of the respondent in various ways which led the petitioner to suffer ill health both in mind and body. The court held that since the petitioner is domiciled in Kenya, the court therefore has no jurisdiction to entertain the petition she chose to file in this court. The petition was dismissed.
This can be expensive and tedious for those rightly seeking to escape such abusive, disrespectful and irresponsible husbands.
This rule has a great potential to cause severe conflicts especially on matters pertaining to property sharing during divorce due to differences in legislation in different countries and jurisdictions. For instance, it is said that the sour relationship between Doctor Aggrey Kiyingi and his late wife Mrs. Robinah Kiyingi was due to the deceased’s wife’s decision to bring divorce proceedings in the Australia Court, where she thought and believed that her property and other interests would better be catered for because of the property the family had in Australia and by the fact that the she had a dual citizenship in Australia and Uganda[35] and was domiciled in Australia since she had not yet divorced from Aggrey.
By and large, this law especially regarding women acquiring their husbands’ domiciles at the time of marriage in my view is not good law and therefore needs to be repealed and amended accordingly as it was in England and some jurisdictions within the English commonwealth with which we share the same legal system. This is because it deprives married women that opportunity to have a domicile of choice distinct from that of dependence as long as the marriage is still valid and the husband is alive. Furthermore, the Uganda Constitution, 1995 stipulates that; Women shall be accorded full and equal dignity of the person with men.[36]
However, the provisions for minors and mentally disturbed people should be left as they are because they justly address the legal issues that may accrue there from appropriately.



SELECTED BIBLIOGRAPHY
STATUTES
The Constitution of The Republic of Uganda, 1995 (as amended)
The Children Act Cap. 59
The Divorce Act Cap.215
The Mental Treatment Act Cap. 279
The Succession Act Cap. 162
TEXT BOOKS
Collier J.G; The Conflict of Laws 3rd Ed, CAMBRIDGE UNIVERSITY PRESS, 2001
Mclean, Beerers, and Kisch; The Conflict of Laws 6th Ed, SWEET AND MAXWELL PUBLISHERS
O’Brien John Smith; The Conflict of Laws 2nd Ed, CAVENDISH PUBLISHING LIMITED LONDON, 1999
OTHER SOURCES
Black’s Law Dictionary                                                                                                                    
Case Law
INTERNET SOURCES           
http://www.Law reform/publication.com 21/Jan/2011

© Kayondo M Silver


[1] Black’s Law Dictionary 8th edition, pg.528
[2] Wade (1983) 2 KLQ 1; Carter (1987) 36 ICLQ 713
[3] [1921] 1 AC 146
[4] [1926] AC 444
[5] [1963] P 259
[6] Sec 1(1)
[7] Sec 1(2)
[8] [1982] Ch 314
[9] The Domicile and Matrimonial Proceedings Act, 1973
[10] Latin Phrase meaning ‘with intention to return’ according to the Barron’s Law Dictionary 5th Edition
[11] Sec 14
[12] [1993] 2 IR 467
[13] [1957] 1 Ch 107
[14] Re: Duleep Singh(1890) 6 TLR; Henderson vs. Henderson [1967] P 77
[15] Pottinger vs. Wrightman (1817) 3 Mer 67
[16] Sec 2 of The Children Act Cap.59 Laws of Uganda, Naranji Lakani vs. Salim Mohammed bin Name [1957] EALR 673
[17] Supra 15 Sec 4, Fatoom Bin Abdul Razaak vs. Nabila Bin [1957] EALR 673  
[18] Sec 13, The Succession Act Cap.162 Laws of Uganda               
[19] Mc Clean, Morris; The Conflict of The Laws, edited by John O’Brien and Raymond Smith pg 83  
[20] Supra 9, Sec 3
[21] Article 31(1) of the 1995 Constitution of The Republic of Uganda (as Ammended)
[22] Supra 9, Sec 4
[23] Re Beaumont [1893] 3 Ch 490
[24] Sec 8, The Children Act of England 1975, Sec 39, The Adoption Act of England, 1976
[25] Sec 1(f) The Mental Treatment Act Cap.279 Laws of Uganda
[26] Butterfield (1887) 37 Ch Div 357
[27] Sharpe vs. Crispin (1869) LRI P&D 611, Paul Ward; Family Law in Ireland pg. 104-5
[28] Sec 17
[29]Supra,  Pg. 61
[30] (1969) 20 N.I.L.Q 304
[31] Uncited
[32] Sec 52(1)
[33] Sec 2(a), Divorce Act Cap.215 Laws of Uganda
[34] Divorce cause N0.8 of 1998, High Court of Uganda seated at Kampala

[35]Uganda v Dr Aggrey Kiyingi and 2 Others (Criminal Session Case No. 0030 Of 2006) [2006] UGHC 52 (11 December 2006)

[36] Article 33(1)

2 comments:

  1. Family Law Attorneys Great article! Because this article share some family law tips. it is very necessary now a days. thanks for posting good article. it is very helpful for us...!!!!

    ReplyDelete
  2. It has saved my conflict of laws coursework great work counsel

    ReplyDelete