TUTORIAL 1

1. Referring to judicial decisions, discuss the following domiciles:

(a) Domicile of Origin
-A person obtains this domicile at birth and in the general situation carries it
through his lifetime.
-When he acquires a domicile of choice, his domicile of origin becomes
suspended and will be revived upon relinquishment of the domicile of choice.
(REVIVAL RULE)
-A person’s domicile of origin follows that of his father if the person is legitimate
and if the person is illegitimate, then follows his mother.

-Case: Udny v Udny

Udny was originally from Scotland where he had bought a house. He lived in
England for 32 years. At that point, there was no doubt that he had changed his
domicile from Scotland to England. He subsequently sold his house in England
together with its furnishings and furniture and left for France. At this stage, his
domicile of origin was revived because by selling his house and its furniture, his
intention was to terminate his domicile of choice. Thus, the law applicable to him
was the law of his domicile of origin, that is Scotland.

(b) Domicile of Dependence

-Two types: married woman and child
-Woman: takes the domicile of her husband upon marriage because, under the
common law, a husband and wife were viewed as one entity.
-Case: Lord Advocate v Jaffrey

-Child: follows that of his father if the person is legitimate and if the person is
illegitimate, then follows his mother.
-Exceptions:
1) the mother cannot change her domicile if it is personally for her benefit.
Case: Potinger v Wightman
2) the mother must take steps to change her child's domicile to the mother's new
domicile.
Case: Re Beaumont – a mother and her infant children were domiciled in
Scotland. Upon her remarriage, her second husband went to reside permanently
in England. The mother’s domicile hence changed to England. All her children
who followed her to England, except her last child which remained in Scotland
until died. The issue here is whether her estate should be governed under
English or Scottish law. If she lived in Scotland, neither her mother nor her half-
brother could claim a share of the estate. It was held that the change of a child`s
domicile according to the change of her mother`s domicile should not be
regarded as a necessary consequence of her mother`s change but as a result of
 the exercise of the mother`s power for the welfare of the child. Since she had
abstained from doing so, then Catherine retained her Scottish domicile.

2. Discuss the requirements / conditions that a person need to prove when he or she
claims that he or she has acquired a domicile of choice. With reference to decided
cases, discuss the factors that serve as a guideline for the courts to decide on whether a
person has acquired a domicile of choice?

-The requirements / conditions that a person need to prove when he or she claims that he or
she has acquired a domicile of choice are:

1. An intention to change the domicile must be proved clearly.

2. The change in place of abode or residence must be voluntary, and not due to some
compulsion such as duties and responsibilities.

Case: The case that can be referred to here is the case of Shaik Abdul Latif v Shaik
Elias Bux. In this case, the plaintiff has successfully acquired the domicile of choice in
Selangor as he voluntarily go there and his intentions are clear which he gathered his
property to build a house for his family and treated Selangor as his residence. Plus, he
never goes back to his original place, Hong Kong.

-Factors that serve as a guideline for the courts to decide on whether a person has acquired a
domicile of choice are:

1. Stay in a country for a long time. But it’s not conclusive

Winans v AG:
Winans was an American citizen who resided in Russia for some time, had various
residences in England, and sporting leases in Scotland. He married a Guernsey lady in
Petersburg. He had property in the United States and originally went to England upon
the recommendation of his doctor. He lived for a long time in England. He had invented
cigar-shaped boats and, as the Earl of Halsbury LC said, was one who meant to travel
back to his own country when his boats succeeded. The issue was whether or not at the
time of his death, Winans was domiciled in England. If his domicile was in England, the
Crown would be able to claim legacy duty on the property he had left behind. If his
domicile was not in England, the Crown would not be able to claim the duty. So, it was
held that the domicile of Winans was still in America.

2. Staying for work or for a certain purpose will negative the element of intent.
Joseph Wong Phui Lan:
A family lives in Kuala Lumpur. The husband moved to Singapore and worked there. In
Singapore, the husband found a mistress and lived together with her and also have 3
children. He filed a jurisdiction in Singapore to divorce his wife but at the court of
Singapore, both husband and wife must be domiciled in Singapore. The court ruled that
the domicile of choice had been proven. The reasons are: 1) the husband withdrew his
membership in two clubs in KL and became a member in two clubs in Singapore. 2) The
 relationship with his girlfriend is not intermittent, they have three children and the
husband lives with the woman. 3) Where the wife and children live is important but it
loses its importance when the marriage is destroyed. 4) The husband applied for and
obtained permanent residency status in Singapore. 5) The husband has quit his job at a
firm headquartered in KL and is now working with a new firm in Singapore. Therefore,
Singapore has jurisdiction.

3. Purchase of land or house

Udny v Udny:
Udny was originally from Scotland where he had bought a house. He lived in England for
32 years. At that point, there was no doubt that he had changed his domicile from
Scotland to England. He subsequently sold his house in England together with its
furnishings and furniture and left for France. At this stage, his domicile of origin was
revived because by selling his house and its furniture, his intention was to terminate his
domicile of choice. Thus, the law applicable to him was the law of his domicile of origin,
that is Scotland.

4. The place where the wife and children live and have their homes. But this fact is not
important if the marriage has been destroyed
Joseph Wong Phui Lan:
A family lives in Kuala Lumpur. The husband moved to Singapore and worked there. In
Singapore, the husband found a mistress and lived together with her and also have 3
children. He filed a jurisdiction in Singapore to divorce his wife but at the court of
Singapore, both husband and wife must be domiciled in Singapore. The court ruled that
the domicile of choice had been proven. The reasons are: 1) the husband withdrew his
membership in two clubs in KL and became a member in two clubs in Singapore. 2) The
relationship with his girlfriend is not intermittent, they have three children and the
husband lives with the woman. 3) Where the wife and children live is important but it
loses its importance when the marriage is destroyed. 4) The husband applied for and
obtained permanent residency status in Singapore. 5) The husband has quit his job at a
firm headquartered in KL and is now working with a new firm in Singapore. Therefore,
Singapore has jurisdiction.

3. Adam came to Malaysia from England to work as an engineer for the MRT project in
2017. His contract is for 10 years. While in Malaysia, he fell in love with his colleague,
Sarah, a Malaysian citizen, and married her in 2019. They have two children. He bought
a house for his family and has also invested in shares as well as properties. He is a
staunch Christian and is a very active member of his church. He has agreed to supervise
the building of an orphanage by his church and has agreed to oversee the management
of the orphanage once it is built. He has told his parents that he may never return to
England.

Discuss Adam’s domicile at present.

Issue: Whether Adam has acquired the domicile of choice in Malaysia.

Law:
To start off, a domicile of origin means a person obtains this domicile at birth and in the general
situation carries it through his lifetime. When a person acquires a domicile of choice, his
domicile of origin becomes suspended and will be revived upon relinquishment of the domicile
of choice.

Next, domicile of choice means any person may acquire a domicile of choice provided he is an
adult. In Malaysia, the age of the majority of an adult is 18 years. A change of domicile must be
proved by the person who asserts the same. The burden is heavy, as an intention to change the
domicile must be proved clearly. The change in place of abode or residence must be voluntary,
and not due to some compulsion such as duties and responsibilities. A change of residence
must be followed by an intention or objective to live in the place on a permanent basis.

In addition, the case that can be referred to here is the case of Shaik Abdul Latif v Shaik Elias
Bux. In this case, the plaintiff has successfully acquired the domicile of choice in Selangor as he
voluntarily go there and his intentions are clear which he gathered his property to build a house
for his family and treated Selangor as his residence. Plus, he never goes back to his original
place, Hong Kong.

The other case that can be referred to here is the case of Udny v Udny. Udny was originally
from Scotland where he had bought a house. He lived in England for 32 years. At that point,
there was no doubt that he had changed his domicile from Scotland to England. He
subsequently sold his house in England together with its furnishings and furniture and left for
France. At this stage, his domicile of origin was revived because by selling his house and its
furniture, his intention was to terminate his domicile of choice. Thus, the law applicable to him
was the law of his domicile of origin, that is Scotland.

Application:
Applying the law to the issue, Adam may choose his own domicile as he is an adult. At first,
Adam’s intention to come to Malaysia was just for his work as an engineer for the MRT project
in 2017. However. In 2019, he married his colleague he fell in love with, Sarah, a Malaysian
citizen and then they have two children. He even bought a house for his family and also
invested in shares as well as properties. That means his intention to stay in Malaysia
permanently was clear and no one force him to do so. He no longer came to Malaysia just for
his work but also to live with his family there. Plus, he also agreed to supervise the building of
an orphanage by his church and agreed to oversee the management of it once it is built. Lastly,
he even told his parents that he may never return to England.

Next, by virtue of Shaik Abdul Latif’s case, it applies to Adam’s situation which means that
Adam has successfully obtained the domicile of choice in Malaysia as he voluntarily stay there
and his intentions are clear as he bought a house for his family and also invested in shares as
well as properties. He even agreed to supervise the building of an orphanage by his church and
agreed to oversee the management of it. Thus, it is safe to say that Adam’s present domicile is
in Malaysia.

Other than that, applying Adam’s issue with the case of Udny v Udny, this case contradicts
Adam’s situation. It is because Adam has no intention to terminate his domicile of choice in
Malysia but instead his intentions to stay in Malaysia were clear as he bought a house to live
with his family and he also told his parents that he may never come back. That means no one
force him to stay in Malaysia.

Conclusion: To conclude, Adam may have successfully acquired the domicile of choice in
Malaysia as his intentions to stay permanently in Malaysia were clear and he voluntarily stay
there.

4. Mr. & Mrs. X, domiciled in Malaysia, were divorced in June 2020. Custody of their
children Mark and Mary was awarded to Mrs. X who continued to live in the matrimonial
home in Kuala Lumpur. Mr. X immigrated to Australia.

In January 2021 Mrs. X remarried and moved to Japan where her second husband was
resident and domiciled. Mary who was then fourteen years of age, went with her. Mark
refused to live with his stepfather. In January 2023 , Mr. X wrote to Mark on the
occasion of his eighteenth birthday and invited him to live with him in Australia. Mark
refused saying that Malaysia is his home and he intends to live there forever.

Where are Mary and Mark domiciled?

Issue: Where are Mary and Mark domiciled?

Law:
A domicile is a place of ordinary abode or residency. It is classified into three categories:
domicile of origin, domicile of choice, and domicile of dependence. The domicile of dependence
can be separated into two categories which are a child and a wife. The child's domicile of
dependence is said to be attained at birth. It is thought that a child is unable or incapable of
possessing the purpose required to decide the domicile.

Next, there are three essential rules to follow. To begin, if the child is legitimate, his domicile
follows that of his father, if the child is illegitimate, his domicile follows that of his mother.
Second, if the child is adopted, his abode is determined by his adoptive father. If the father dies,
the domicile of his mother is followed only if the mother's domicile has changed. Domicile of
dependence of wife, when a woman marries a man, she takes on her husband's domicile. Only
a divorce decree can free her from her dependence.

In addition, the case that can be referred to here is the case of Re Beaumont. In this case, a
mother and her infant children were domiciled in Scotland. Upon her remarriage, her second
husband went to reside permanently in England. The mother’s domicile hence changed to
England. All her children followed her to England, except her last child which remained in
Scotland until died. The issue here is whether her estate should be governed under English or
Scottish law. If she lived in Scotland, neither her mother nor her half-brother could claim a share
of the estate. It was held that the change of a child`s domicile according to the change of her
mother`s domicile should not be regarded as a necessary consequence of her mother`s change
but as a result of the exercise of the mother`s power for the welfare of the child. Since she had
abstained from doing so, then Catherine retained her Scottish domicile.