Theme 6

Question 1

What is Lex domicilii?

Answer 1

Lex domicilii is the address you are domiciled at It is the place you are of resident. This is your legal resident

Question 2

Was is stated in the Mason case about domicile?

Answer 2

It is stated in Mason’s case that domicile is your legal home and the place which the law regards as your permanent home

Question 3

What is a domicile?

Answer 3

Domicile is the place where a person is legally deemed to be constantly present to exercise, his or her rights and fulfil his or her obligations, even in the event of his or her factual absence. No one can be without a domicile

Question 4

What is the age of majority determined by?

Answer 4

A person’s age of majority and personal status is determined by where the person is domiciled. The age of majority in South Africa is 19 years old.

Question 5

What lex domicile matrimonii?

Answer 5

The system governing a couple’s matrimonial system is dependent on their matrimonial domicile (lex domicile matrimonii).

Question 6

What is the law of matrimonial domicile?

Answer 6

The law of matrimonial domicile determines the couple’s matrimonial property system

Question 7

What is the couple’s matrimonial domicile ?

Answer 7

The couple’s matrimonial domicile is dependent on where the husband is domiciled on the wedding day, this rule is gender specific and can only be applied to heterosexual marriages

Question 8

How does domicile affect intestate?

Answer 8

If a person dies intestate their movable property will be inherited according to the rules of the country where this person was domiciled on the day of their death

Question 9

How does domicile affect testate?

Answer 9

If a person dies testate their legal capacity to make a will is determined by the rules of the country where this person was domiciled the day they made the will of by the person domicile the day they died

Question 10

What is the rule of renovi?

Answer 10

The rule of renvoi- The doctrine whereby the courts of one country in certain circumstances apply the law of another country in resolving a legal dispute.

Question 11

What does section 4 of the Domicile Act state?

Answer 11

Section 4 of the Domicile Act states that if a question before the court should be decided in accordance with the law of a foreign state, the court should answer the question in accordance with that law, even if that domiciled country finds South African law is applicable.

Question 12

What is the common law rule of domicile of dependence?

Answer 12

At common law a wife automatically acquired her husband’s domicile at marriage and followed it whenever he changed his domicile, irrespective of whether she was present at that particular place or whether she had the intention of residing there permanently.

Question 13

What is the common law rule of domicile of child?

Answer 13

Domicile of a child: A minor also had a domicile of dependence, which was the domicile of his or her guardian

Question 14

What is the common law rule of domicile of origin?

Answer 14

Domicile of origin: The domicile the law confers on the person at birth. A child born of married parents acquired his or her father’s domicile at the time of the child’s birth, whereas a child born of unmarried parents, or a child after his or her father’s death (a posthumous child), took his or her mother’s domicile.

Question 15

What is the common law rule when a person abandoned his or her domicile of choice without acquiring a new domicile?

Answer 15

a person’s domicile of origin revived if he or she abandoned his or her domicile of choice without assuming a new domicile. In such an event, the law of his or her domicile of origin determines the person’s status until he or she has assumed a new domicile of choice. Thus the person’s domicile was neither based on the place where he or she physically resided nor was it connected with his or her intention – it was simply a domicile that was assigned to him or her by operation of law for reasons of efficacy.

Question 16

What is stated in AV v WV about domicile?

Answer 16

AV v WV states that a domicile is a place where for legal purposes is presumed by law to be present at all times. They must have a domicile at all times, you can’t have more than one domicile. The case highlights that domicile is important because it determines a person’s legal status, which country’s legal system applies, and determines which legal capacities they are entitled to
It emphasises the role of an application for a permanent residence visa in determining the intention of the parties in the context of domicile

Question 17

What is stated in section 1(1) of the Domicile Act?

Answer 17

Section 1(1) of the Domicile Act in defining domicile of choice states that every person who is of or over the age of 18 years, and every person under the age of 18 years who by law has the status of a major, excluding any person who does not have the mental capacity to make a rational choice, shall be competent to acquire a domicile of choice, regardless of such a person’s sex or marital status.

Question 18

What is set out in section 1(2) of the Domicile Act?

Answer 18

Section 1(2) A domicile of choice shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period

Question 19

What is the domicile of choice?

Answer 19

Domicile of choice factual requirement is that you lawfully present in physical presence, and will remain for an indefinite period as stated under section 3(1) until you choose another recognized place of domicile

Question 20

What is Domicile of choice requirements under Section 1?

Answer 20

• capacity
• sound mind
• choose out of free will

Question 21

What is stated in section 2(1) of the Domicile Act?

Answer 21

Section 2(1) of the Domicile Act states that a person not capable of acquiring a domicile of choice as contemplated in section 1 shall be domiciled at the place with which he is most closely connected

Question 22

What is stated in section 3(1) of the Domicile Act?

Answer 22

Section 3(1) of the Domicile Act states that no person shall lose his domicile until he has acquired another domicile, whether by choice or by operation of law.

Question 23

What is stated in section 5 of the Domicile Act?

Answer 23

Section 5 of the Domicile Act states that a court shall determine the acquisition or loss of a person’s domicile on a balance of probabilities.

Question 24

What are the general principles of Domicile?

Answer 24

• Exclusivity - A person can only have 1 domicile at a time
• Tenacity - Domicile is attached to you per S 3(1) of the Domicile Act
• Proving domicile - S 5 of the Domicile Act: determined on a balance of probabilities

Question 25

What does the Alam case state about section 1(2) of the Domicile Act?

Answer 25

In Alam’s case, the court stated that section 1(2), intention to settle for an indefinite period. This is not concerned with the intention to settle forever/permanently. It was held that uncertainty about the permanent residence is irrelevant to the lawfulness of presence but it is rather relevant to the intention.

Question 26

What was held in the Alam case?

Answer 26

In the Alam case, the court held that the intention to stay in a country through the continuous application for residence and visas shows that the person on a balance of probabilities intended to switch their domicile. In Alam’s case, the outcome is that his intention to stay by applying for refuge and appealing the application. Further, he was there for 2 years and in this case, it is shown on a balance of probabilities that he was legally in South Africa.

Question 27

What are the three forms of Domicile in the Domicile Act?

Answer 27

We determine domicile according to the Domicile Act. Three forms of domicile;
- Domicile of choice (s1(1),
- of closest connection (s2)
- domicile of origin (common law principle s3(2) and para 14 of AV case)

Question 28

What does section 5 of the Domicile Act?

Answer 28

Section 5 of the Domicile Act sets out how domicile is determined

Question 29

What does section 2(2) of the domicile Act state?

Answer 29

A child domicile will be presumed to be that of the parental home of the child concerned

Rebuttable presumption

Question 30

What does section 3(2) of the Domicile Act states?

Answer 30

Abolishes domicile of orgin but states that it can only be enacted in realtion to section 1 or 2 of the Act by operation of the law