Domicile
24 March 2021
The legal system of a country determines the status
of a person.
The general position is that a person’s status is
determined by the country of their domicile.
What is a person’s domicile
• In simple words, it’s the place where a person lives.
• In legal language: it is defined as the residence where
you have your permanent home or principal
establishment and to where, whenever absent, you
intent to return. OR
• The country the law regards as your permanent home.
Where one exercises rights and fulfills obligations.
• NB!! Every person is compelled to have only one
domicile at a time.
• To acquire domicile in a legal sense a person must
have the intention of settling at the place for an
indefinite period.
Importance of Domicile
• 1. Determines the applicable legal system
• 2. Also important in the law of succession.
• If you die intestate
• When executing a will
• When determining capacity to inherit
• Determines system according to which will is to be
interpreted
• 3.Spouses matrimonial system
• 4. Whether a child is born of married parents or not
• 5. Also plays a role in jurisdiction.
General principles governing domicile
• Every person must have a domicile at all times
• No one loses his/her domicile until he/she has
acquired another domicile
• A change of domicile is never just accepted, it must
be proved.
• Whether a person has acquired or lost a domicile is
determined on a balance of probabilities.
• Whether someone can have more than one
domicile at the same time has not been finally
settled.
Different kinds of domicile
1. Domicile of Origin
• Domicile the law confers on a person at birth.
• Ensures that a person starts life with a domicile which remains
in place until replaced by another.
• No one loses his/her domicile until he/she has acquired
another domicile, whether by choice or by operation of law.
• A person’s domicile of origin does not revive (look at example in
text book)
2. Domicile of choice
• The domicile a person who has capacity to act has chosen for themselves by
exercise of free will.
• By far the most important kind in law.
• Read section 1(1) of the domicile Act
• Common law
Requirements for acquiring
domicile of choice
1. Be a major or have status of a major (s1)
2. Acquired by a person when he/she is lawfully
present at a particular place and has the
intention to settle there for an indefinite period
• (Read the Factum and animus requirements in
more detail)
• Van Rensburg v Ballinger 1950 (4) SA 427
• McMillan v McMillan 1943 TPD 345
• Baker v Baker 1945 AD 708
• Naville v Naville 1957 (1) SA 280
• Nefler v Nefler 1906 ORC 7
Domicile by operation of law
• Anyone who does not have the capacity to acquire
a domicile of choice is domiciled at the place with
which he/she is most closely connected.
• Minors and people who do not have the mental
capacity to make a rational choice cannot acquire a
domicile of choice. To them the law assigns a
domicile by operation of law as long as their
minority or mental incapacity lasts.
Domicile of a minor
Domicile of a mentally incapacitated person
Thank you
