DOMICILE IN FAMLY LAW IN UGANDA

In the case of Robinah Erina Kagaya Kiyingi V Doctor Aggrey Kiyingi.[1] The word
domicile was defined as the country in which a person is or presumed to be permanently
resident the place of a persons permanent home. It depends on the physical fact of
residence plus the intension of remaining. The definition was defined according to the
Osborn’s Concise Law dictionary. Similarly, in the case of Whicker V Hume.[2] In this
case Lord Wensleydale said that domicile means habitation in a place however with an
intension of remaining unless something happens to change the intension. A person can
only have one domicile in a place that has a separate legal system. In Robinah Erina
Kagaya Kiyingi V Doctor Aggery Kiyingi.[3] The court stated that a person that is to
say a British may be domiciled in England , Scotland or Northern Ireland but can only
be domiciled in one of them, this is because they have different legal systems,

Domicile is different from nationality because a person can have a domicile in a country
but without the nationality. In the case of Robinah Erina Kagaya Kiyingi V Doctor
Aggery Kiyingi.[4] It was stated that domicile must not be confused with nationality for
the later is rarely a relevant factor where matters of family law are concerned. A person
is a subject or national of a sovereign state but he has his domicile in some area which
has its own system of law and courts. Further more, a person is not bound to be
domiciled in the state of which he is a national.

However there different types of domicile and they include the following as stated
below.

DOMOCILE OF ORIGIN
Domicile of origin. In the case of Robinah Erina Kagaya Kiyingi v Doctor Aggery
Kiyingi[5] domicile of origin was said to be the domicile that is acquired at birth. In the
case of Udny v Udny[6] Lord Wels bury said “that no man shall be without a domicile
and to secure this result the law attributes to every individual as soon as he or she is
born the domicile of his father, if the child is legitimate and domiciled of the mother if
the child is illegitimate.” Similarly section 6 of the succession Act Cap 162, states that,
domicile of origin of a person of legitimate birth is in the country in which at the time of
his or her birth, his or father is domiciled or if he or she is a posthumous child in the
country in which his or her father was domiciled at the time of the fathers death. Section
7 of the same Act states that the domicile of origin of an illegitimate child is in the
country of in which at the time of his or her birth, his or her mother was domiciled.
However the domicile of origin can be replaced by another domicile for example in the
domicile of origin can be replaced by a domicile of choice or dependency. However,
there must be evidence to show that the domicile of origin has changed hence the party
has acquired another domicile. In the case of Gordon v Gordon,[7] in this case the
petitioner filed for divorce, he was born in England in 1946 at 22 he came to Tanganyika
as a district officer appointed by the colonial office on permanent terms. The petitioner
then married an African woman who is the respondent and together they had 6 children
most of the petitioner’s assets were in Tanganyika for example a building. He said that
he had retained his domicile of origin and that he acquired a domicile of choice in
Tanganyika. The petitioner said that if his employment was retained he would get
another employment in Tanganyika but if he does not get another employment in
Tanganyika, he would go back to England. The petitioner also said he had no intension
of staying in Tanganyika, he also meant to return to England. The issues’ was whether
the petitioner had acquired a domicile of choice or his domicile in England was retained.
The court held that although the petitioner has been a resident in Tanganyika for 18
years and most of his interests in Tanganyika, this fall short or even raising the
presumption that he had abandoned his domicile in England.

DOMICILE OF CHOICE
In the case of Robinah Erina Kagaya Aggery V Doctor Kiyigi Aggery [8] The court
stated that the domicile of choice may be acquired by a person of full age by residing in a
country other than his domicile origin wit the intension of remaining in that country
permanently or indefinitely. This intension is termed “animus mamedi” the court stated
that the burden of proof lies on the person asserting he has acquired a domicile of
choice. Similarly in the succession Act cap 162 section 9. It states that a man acquires a
new domicile by taking up fixed habitation in a country which is not that of his origin
except that man is not to be considered as having taken up habitation in Uganda merely
by reason of his residing there in the exercise of any profession or calling

Where however the person abandons his or her domicile of choice, his domicile of origin
will revive and continue to govern his legal position until he acquires a new domicile of
choice. For example in the case of Bell V Kennedy[9]. In this case, Mr. Bell was a
Jamaican of born but of Scottish parents, educated in Scotland he returned to Jamaica
where he married. However he left Jamaica and went to live with his mother-in-law
while deciding whether to live in Scotland, England or France. His wife died and the
question arose as to where he was domiciled. The House of Lords overruled that Court
of Session and decided that he returned to domicile of origin in Jamaica. The domicile of
choice is lost when both the residence and the intension necessary for its acquisition are
given up. In Relloyd Evans DECD National Provincial Bank.[10] A testor born in Wales
in 1864, whose parents were British subject went to Java in 1880 and till 1917, he
married a Dutch woman had 3 children he settled in Brussels and bought a house and
carried on business. The Germany Army invaded Belgium and he was persuaded to
leave the country, he went to South France and escaped to England. In France he wrote
that he was domiciled in Belgium for the last 19 years but had no time to make his
intended will, in England he occupied 3 flats. The evidence showed that he was obliged
and that during his last years he made conflicting statement as regard’s his intension as
to residence after the war the court held that although it is less evidence to establish
abandonment of a domicile of choice that it had to establish it’s acquisition in either
both the intension and the act must be unequivocal. In the United Kingdom persons
above 16 years may acquire a domicile of choice and in Uganda persons over the age of
18 may acquire domicile of choice incase he or she does not have the capacity to form
the necessary animus.
DEPENDENT DOMICILE
Dependant domicile is a domicile that is acquired by minors, married women and
mentally ill persons. In the succession Act cap 162 section 14; it states that by marriage a
woman acquires the domicile of her husband if she had not the same before. Section 15
states that subject sub section (2) the domicile of a wife during the marriage follow the
domicile of her husband.
Married women acquired the domicile of her husband and her domicile would change
with that of her husband even if they lived apart. Lord Advocate v Jaffery.[11] In this
case a husband and wife were domiciled in Scotland. The husband contracted a
bigamous marriage in Queensland with the consent of the wife, while the wife remained
in Scotland where she died proceedings were brought in Scotland to determine the
domicile of the wife. The court of Appeal on the House of Lord held that the wife was
domiciled in Queensland even though she had never visited there.
However a wife can loose the domicile of dependency if the husband dies. In the case of
Scullaud Decd Smith V Brock and other[12] in this case Ethel Mary Scullaud the
testatrix left her husband in 1908 and never lived with him again. The husband had and
English domicile which he retained until his death on 4 th February 1955. The wife lived
in various places till the year 1946 or 1947 when she settled in Guernsey with the
intension of residing there until her death. The question was whether at the time of her
death she was domiciled in Guernsey. The court held that after the death of her
husband, she showed her continued intension to reside permanently in Guernsey, and
she had a domicile of choice in Guernsey at the date of her death.

The wife could also loose her dependent domicile through a decree of divorce and not by
an order of judicial separation. Section 15(2) of the succession Act states that the
domicile of a wife no longer follows that of her husband if they separated by the
sentence of a competent court. In the case of AG for Alberta V Cook. [13] In this case a
wife acquired a decree of judicial separation where she lived; however she then
presented a petition for divorce. Her husband retained his domicile of origin in Ontario.
On appeal to the Privy Council, it was held that the Alberta court had no jurisdiction to
hear the divorce petition because jurisdiction was dependent on the domicile and the
woman remained domicile in Ontario. Lord Marrivol in the judgment of the Privy
Council explained the rational as being “…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 depend.”
Minors also have a dependent domicile and it is acquired upon birth a legitimate child
acquired the domicile of its father while an illegitimate child acquired the domicile of its
mother. Under the section 13 of the succession Act cap 162, it states that subject to
subsection (2) the domicile of a minor follows the domicile of the parent from whom the
minor derived his or her domicile of origin, section 16 of the same Act states that, except
as provided in section 13 (1) a person cannot during minority acquire a new domicile.
The dependent domicile of the minor, would change depending on the domicile of the
parent, for instance a legitimate child born to a father domiciled in Italy would acquire a
domicile of origin and dependency in Italy, however incase the father would acquire a
domicile of choice in France, the child’s domicile would also change and acquire a
domicile of dependence in France.
In situations where the father of a legitimate child dies, the domicile of the child will
normally follow the domicile of the mother save in situations where the mother decides
to move to a new country. For example in Re Beaumont.[14] A widow who was
domiciled in Scotland with her minor children, she decided to remarry and went to
England and lived there with her new spouses, she took all her children except one
whom she left to stay with an Aunt in Scotland. The court held that the domicile of the
other children was in England; however that of this one child continued to be Scottish.

In the case of an adopted child in United Kingdom and in Uganda, the child will be
treated as he or she was the natural child of his adopted parents, that is to say he or she
will have the domicile of the parent, the children Act cap 59 section 43(3) states that a
foster parent is whose care child is committed shall, while the child remain in his or her
care, have the same responsibilities in respect of the of the child’s maintaince as if he or
she were the parents of the child.

However in situation where the minor marry’s, holds an office of employment with the
government, set up a business, the minor loses his domicile of dependency. Section
13(2) of the succession Act 162 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 district business.
Mentally incorrect or metal disorder people have a domicile of dependence and this is
because they lack the legal capacity to form the requisite intension of remaining in a
country permanently or indefinitely, they can not acquire a domicile of choice. Urguhart
Vs Butterfield.[15] In this case it was stated that if an independent person becomes
insane, he becomes incapable of acquiring a domicile of choice because he is unable to
exercise any will. Section 17 of the succession Act cap 162, it states that an insane person
cannot acquire a new domicile in any other way than by his or her domicile following the
domicile of another person retain the domicile he had before he became insane that is to
say he or she is of a majority age and his domicile cannot be changed by him. However,
if he or she is of a minority age, the domicile depends on the alternative of the domicile
of the parent upon where he or she attains majority.
Merits of dependency domicile
In case of a legitimate child whose parents later divorce and the father does not provide
for the child the child’s domicile will become that of the mother. For instance in the case
of Hope V Hope[16] in this case Lord MacDermott L.C.J said “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.

Dependency domicile simplifies the question of private international law it provides a

relatively simple and more way of ascertaining solutions in most cases thus spouses and
their legal advisers should be able to determine their position with some confidence.
Aslanidis v Aslanidis.[17] This case wife petitioned on the respondents domicile in
Uganda it was proved the he came to East Africa with a Greek domicile of origin but
born in Egypt. He move 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. He had acquired a domicile of choice in Uganda.
Dependant domicile enables children with out parents acquire a sense of belonging;
acquire homes and the love of parents. The adopted minors will have the domicile of his
or her foster parent this is because they are to treat the child as if they were the parents
of the child and it is the duty of the foster parent to care of the minor. Section 43(3) of
the children Act cap 59 states that a foster parent is 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 maintaince as if he or she were the parent of the child.

It also enable the foster children to have right to inherit property, in the children Act cap
59, section 52(1) it states 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

The domicile of dependency creates unity between the parties for instance in the case of
married people since the wife’s domicile is dependant to the husbands domicile. This
rule was based on the principle of the unity of husband and wife, the rule was supported
by a clear authority in the case of Lord Advocate V Jaffery.[18] Similarly in the case AG
of Alberta v Cook[19]. Lord Merrivale said “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”

Dependency domicile helps or enable in determining of the mutual rites and obligations
of husbands and wife, parent and child varying from country to country

However the law of domicile has demerit and these include the following.
The wife is deemed to be domiciled in the country of her husband whether she has not
been there, even though she does not have a connection in the husbands country of
domicile, hence the view that dependence domicile creates unity is as artificial one
because it may bear no relation to the actual circumstances of the spouse. In the case of
Lord Advocate V Jaffrey.[20] In this case the husband was in Queensland and the wife
was in Scotland, she had never been in Queensland. The court of appeal on the House of
Lords held that the wife was domiciled in Queens land even though she has never been
their.

Incase of divorce, it can only be granted in the country where both the parties are
domiciled but can not be granted independently, for instance if a wife wants to file a
petition for a divorce to dissolve her marriage, she can only file the petition in the
country of her dependency domicile. Section 2(a) of the divorce Act states that the
making of any decree of dissolution of marriage unless the petitioner is domiciled in
Uganda at the time when the petition is presented.For example in the case Joy
Kiggundu v Horace Awori .[21] in this case the petitioner filed a decree dissolving her
marriage to the respondent in the high court of Uganda at Kampala, the respondent was
domiciled in Kenya and lived in Nairobi Kenya where at the time the couple got 3 issues
of the marriage being the husband committed adultery with named women, the
respondent has been cruel to the petitioner in various ways and by reason of which the
petitioner suffered ill health both in mind and body. The court held that, 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 is dismissed.

The concept of domicile of dependency may offend Article 33(1) of the constitution of
Uganda which states that women shall be accorded full and equal dignity of the person
with men, hence in that, it discriminates invidiously between persons. Dependency
domicile may be said to involve a question of status rather than that of person rights.

Incase a person whose domicile is not in Uganda marries in Uganda a person whose
domicile is in Uganda none of the parties acquire the property of the other unless it is
agreed in a settlement hence for instance if a women whose domicile is not in Uganda
marries a man whose domicile is in Uganda her domicile will be Ugandan. Section 34 of
the succession Act Cap 162 state that if a person whose domicile is not in Uganda
marries in Uganda a person whose domicile is in Uganda, neither party acquires by the
marriage any right in respect of any other party not compromised in a settlement made
previous to the marriage, which he or she would not acquire by the marriage if both
were domiciled in Uganda at the time of the marriage.

The capacity of the wife to make a will and the devolution of her personal property on
her death may be governed by a system laws of a country she has no connection. For
example in the case Lord Advocate V Jaffrey[22] in this case the husband was in
Queensland and the wife was in Scotland were she died proceeding were brought in
Scotland. The court held that even though she had never been in Queensland, her
domicile of dependency was there.
In conclusion, the law of the domicile of dependency in Uganda has led to the
discrimination of many women thus degrading the dignity of the women depriving them
the right to choice yet we are equal according to Article 33(1) of the constitution of the
republic of Uganda and with the women emancipated today, this law ought to be
changed. The law is more complicated. However dependency domicile is advantageous
in a away that it has made legal matters between the persons easy that is to say there is
no need to use 2 different laws of different countries to handle matters and it has
provided a sense of Identification mostly children and lunatics. Therefore even though it
has some merits, the demerits are of a large extent mostly to the women because it
deprives them the right of choice in this matter the right of them to acquire another
domicile of choice instead their domicile is dependent to their husbands and changes
when the domicile of the husband changes. However in the United Kingdom, the
domicile of dependency of a married woman was abolished because this rule reflected
social conditions and attitudes, it was abolished by s1 (1) of the Domicile and
Matrimonial Proceedings Act 1973. Section 1(1) of the Act stated that, the Act is
retrospective in the sense that it applies to women married before as well as after
January 1, 1974. Hence a transitional provision was needed. Section 1 (2) provides that
where immediately before that date a woman was married and then had her husband’s
domicile by dependence, she is to be treated as retaining that domicile as a domicile of
choice, if is not also her domicile of origin. In the case of IRC V Duchess of Portland[23]
in this case the wife lived had a domicile of origin in Quebec married a husband
domiciled in England, the issue was whether her domicile was in England. It was held
 that the effect of s1 (2) was that she retained her domicile of dependency as a domicile of
choice.

BIBLOGRAPHY
STATUES
1. THE CHILDREN ACT CAP 59
2. THE SUCEESION ACT CAP 162
3. THE CONSTITUION OF THE REPUBLIC OF UGANDA 1995
4. The divorce Act cap 215

TEXT BOOKS
1. O’Brien John Smith’s, Conflict of Law.2nd edition Cavendish publishing Limited
London 1999
2. Collier J.G. The conflict of laws 3rd edition Cambridge university press 2001
3. Mclean and Beerers, Kisch. The conflict of laws 6 th edition publisher, Sweet and
Maxwell limited of 100 Avenue Road, London NW 33PF2005
4. Barker David and Padfied, Collin Law Cataloguing in publication Data 1998 10 th
edition

INTERNET
Law reform/publication.com 8th June 2009

[1] High court civil Appeal No. 41 of 2004

[2] (1843-60) ALLER
[3] supra
[4] supra
[5] supra
[6] (1896) L.R I S C DIV 44 at Page 457
[7] (1965) EA 87
[8] High court Appeal No 41 of 2004
[9] (1868) LR 1 Sc & Div 307
[10] (1947) Ch 545
[11] (1921) 1 AC 146
[12] [1957] 1 Ch 107
[13] (1926) AC 444
[14] [1893] Ch 490
[15] [1887] 37 Ch 337
[16] (1969) 20 N.i.L.Q 304
[17]
[18] [1921] AC 146
[19] [1926] ac 444
[20] [1921] AC 146
[21] High court of Uganda at Kampala Divorce cause No 8 of 1998
[22] [1921] Ac 146
[23] [1982] Ch 314