DOMICILE: A CONFLICT OF LAWS AND A JURISDICTIONAL CRITERION

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CHAPTER TWO DOMICILE AS A CONNECTING FACTOR IN MATTERS OF STATUS

Introduction

Domicile occupies a very special position in the law relating to status. Most issues pertaining to private-law status are determined by the propositus’s personal law which,in the South African context, is the lex domicilii. Thus domicile is an important connecting factor in choice of law issues dealing with status. However, domicile is also an important jurisdictional connecting factor in this area of the law, since domicile was for a long time, and still is, in many instances, the predominant criterion for the assumption of jurisdiction in status-related matters.

The meaning of private-law status

Status is one of those legal terms that is often used, but seldom defined. In the words of Austin: « To determine precisely what a status is, is in my opinion the most difficult problem in the whole science of jurisprudence.  »
1 Private-law status is often described as a person’s standing or It is a legal condition which embraces all the rights and duties,capacities and incapacities, powers and disabilities, that are attached to a specific status. 2 It is a condition imposed by law and cannot be changed at the mere will of the person subject to such a status. 3 The statutist doctrine which originated in thirteenth century Italy, gave rise to a universal principle accepted by the major legal systems of the world: in terms of the division of statutes into personal, real and mixed, matters in regard to status were regarded as personal and thus governea by the personal law of the propositus wherever he went. 4 One of the characteristics of the statutist doctrine was that the statutists were universalistic in their approach and therefore regarded the extraterritoriality of the personal statute as being common to all legal systems. 5 Whereas the original statutists and their successors experienced great difficulty in categorising statutes as personal, real or mixed, it was never doubted that status belonged within the category of personal statutes, governed by the personal law of a person, whether it be domicile, or, later on, nationality. 6 The rule that the status of a person fell to be determined by his personal law never acquired the sanction of international law in the sense that it became a rule of public international law, it was more in the nature of a universally accepted principle to which most legal systems adhered and still do today. One of the important implications of this universal rule regarding status, was that the personal law of the propositus followed him wherever he went and this often resulted in a forum having to apply foreign law or recognise a foreign status. Of course, no country could be forced to apply foreign law or recognise a status acquired in terms of foreign law, but refusal to do so could result in isolation from the rest of the world,especially in regard to trade and commerce. Thus the seventeenth century Roman Dutch writers sought justification for the application of foreign law by the forum of a sovereign country on the basis of what was termed « comity ».7 It was Huber who clearly established the principle that a sovereign country was, in terms of the ius gentium, obliged to apply foreign law, unless it would be prejudicial to its own citizens. He recognised the extra-territorial validity of lawfully acquired rights and herein lay the origin of the vested rights theory. a Thus the extra-territorial recognition of a status acquired in terms of an individual’s personal law, was, and is still today, accepted. However, the distinction drawn by Huber between status and capacity, one of the incidents of status,9 is significant for the conflict of laws. In terms of this distinction the status of the propositus (as determined by his personal law) follows him wherever he goes, but the capacities of such a status are determined by the law of the country where he wishes to exercise them. 10 This may be illustrated by way of a simple example. If a person, domiciled in South Africa, is below a certain age, he is a minor and has the status of minority ascribed to him by his personal law (South African law). One of the incidents of the status of minority in South African law is, for example, that he does not have the capacity to enter into a contract without the assistance of his parent or guardian. What would happen if he went to another country where minors are allowed to enter into contracts without such assistance? According to Huber’s distinction between status and capacity, the personal law (in this case South African law) will determine the status of the propositus (in this example minority) and this status will follow him wherever he goes, but in regard to the incidents of the status of minority he would, in a country other than that of his domicile, have the capacities that persons of the same status enjoy according to the law of that country. It is quite possible that a minor may have more capacities in one country than in another or vice versa, but the fact that he is a minor in terms of his /ex domicilii cannot be altered. In terms of this distinction between status and its resultant incidents the personal law determines a person’s status, but not necessarily the incidents thereof. 11 A forum may, of course, on the ground of public policy, refuse to recognise a « foreign » status.

Status and divorce

Divorce is a prime example of an action involving a change in the status of the two parties, from that of married to single persons. It is crucial that this changed status be recognised « internationally »; either by the law of a foreign country in regard to a divorce decree obtained in a South African court, or by South African law in regard to a divorce decree obtained abroad. In many instances recognition of a divorce decree (and the resultant change in status) will determine whether the propositus may marry again, and it may also have a bearing on legal capacity.

The importance of « international » -recognition

One of the requirements for the recognition of a foreign divorce order is that the court that granted the order must have had international competence, in other words, that court must have had jurisdiction according to the requirements set by the lex tori for the recognition of foreign divorce decrees. 13 The basic underlying premise is that a foreign court will be judged internationally competent if there existed a sufficiently close
connection between that forum and either of the parties to the divorce. 14 In South African law domicile, ordinary residence and nationality are listed as « foreign » jurisdictional connecting factors for purposes of the recognition of foreign divorce orders. 15 The issue of « international » recognition of divorce orders has important
implications for the assumption of domestic jurisdiction. If a forum assumes jurisdiction on tenuous grounds, that divorce decree will not be recognised abroad, resulting in what has been termed a « limping marriage » .

INTRODUCTORY 
PART 1 : DOMICILE AS A CONNECTING
FACTOR IN SOUTH AFRICAN LAW
CHAPTER ONE DOMICILE: A CONFLICT OF LAWS AND A JURISDICTIONAL CRITERION
Introduction
1 Early origins of domicile as a connecting factor
2 Domicile as a connecting factor in current South African law 
CHAPTER TWO DOMICILE AS A COrJNECTING FACTOR IN MATTERS OF STATUS
Introduction
1 The meaning of private-law status
2 Status and divorce 
2.1 The importance of « international » recognition 
2.2 Jurisdiction and choice of law 
2.2.1 Common law
2.2.1.1 Le Mesurier v Le Mesurier: The facts of the case
2.2.1.2 The governing law of Ceylon
2.2.1.3 The question of jurisdiction
2.2.1.4 Evaluation: jurisdiction versus choice
of law
2.2.2 Statutory intervention
2.3 Preliminary conclusions
3 Status and nullity actions
3. 1 Jurisdiction and choice of law in nullity actions 
3.1.1 Void marriages
3.1.1.1 Locus celebrationis
3.1.1.2 Domicile
3.1.1.3 Other grounds
3.2 Voidable marriages
3.3 Preliminary conclusions 
4 Status and issues of legitimacy 
4.1 Leg1t1macy
4.1.1 Jurisdiction
4.1.2 Choice of law
4.1.2.1 The lawful wedlock theory
4.1.2.2 The lex domicilii originis
4.2 Leg1t1mat1on 
4.3 Preliminary conclusions 
5 Recognition of foreign judgments relating to status
6 Conclusion 
CHAPTER THREE DOMICILE AS A CONNECTING FACTOR IN CERTAIN MATTERS OTHER THAN STATUS
Introduction
1 Jurisdiction
1.1 The relevance of domicile
2 Conflict of laws
2.1 Law of persons and family 
2.1.1 Essential validity of a marriage
2.1.2 Personal consequences of a marriage
2.1.3 Proprietary consequences of a marriage
2.2 Law of obligations 
2.3 Property 
3 Conclusion 
PART II : THE CONCEPT DOMICIUUM IN SOUTH AFRICAN LAW
CHAPTER FOUR PROBLEM AREAS IN REGARD TO DOMICILE
Introduction 
1 The Domicile Act
2 The domicile of the wife 
2.1 The wife’s domicile of dependence
2.1.1 Exceptions to the wife’s domicile of dependence
2.1.1.1 The case of the vagabundus husband
2.1.1.2 A separate forensic domicile for the
wife
2.1.1.3 Preliminary conclusions
2.1.2 Ubi uxor, ibi domus
2.2 The domicile of a married woman and the conflict of laws 
2.3 Preliminary conclusions
3 Freedom of choice 
3.1 Members of the armed forces 
3.2 Deportees, prohibited immigrants and prisoners 
3.2.1 Deportees
3.2.2 Prisoners
3.2.3 Prohibited immigrants
3.3 Certain classes of employees 
3.4 Preliminary conclusions 
4 Proof of change of domicile
5 Conclusion 
CHAPTER FIVE
THE SUBJECTIVE ELEMENT OF DOMICILE
Introduction 
1 The common law interpretation of the requisite animus
2 The animus requirement in South African law
2. 1 South African case law 
2.2 The meaning of « indefinite » in the Domicile Act 
2.2. 1 Report of the English and Scottish Law Commissions on
Domicile
2.2.2 Towards an interpretation of the term indefinite
2.2.2.1 Indefinite period
2.2.2.2 Time factor
2.2.2.3 Contingencies
2.2.2.4 Preliminary conclusions
3 Determination of the requisite animus for a domicile of choice: b. t• b » . ? 
3.1 Declarations by the propositus
3.2 Domicile of choice without reference to animus? 
3.3 Factors determining domicile 
3.3. 1 Residence
3.3.2 Employment
3.3.3 Other factors
4 Conclusion 
PART Ill : EVALUATION OF DOMICILE AS A CONNECTING FACTOR
CHAPTER SIX
THE FUNCTIONAL DIVERSIFICATION OF CONNECTING FACTORS: DOMICILE COMPARED WITH OTHER CRITERIA
Introduction
1 Conflict of laws 
1.1 The position of the connecting factor in the conflict of laws 
1.1.1 The traditional approach
1.1.2 Modern approaches
1.2 The function of the connecting factor in the conflict of laws 
2 Jurisdiction
2.1 The position of the connecting factor in the law relating
to jurisdiction 
2.2 The function of the connecting factor in the law relating
to jurisdiction 
3 The conflicts connecting factor versus the jurisdictional connecting factor 
4 Other connecting factors 
4.1 Nationality 
4.2 Residence
4.2.1 Residence simpliciter
4.2.2 Ordinary residence
4.2.3 Habitual residence
4.2.4 Preliminary conclusions
4.3 Should domicile be replaced? 
5 Conclusion 
CHAPTER SEVEN
DOMICILE IN SOUTH AFRICAN LAW: THE WAY AHEAD
Introduction 
1 The true meaning of domicile
1. 1 Does domicile bear a single meaning? 
1.1.1 Different domiciles for different purposes?
1.1.2 Different inferences – different results
1.1.3 Preliminary conclusions
1.2 Domicile means home
1.3 Preliminary conclusions 
2 The animus requirement for a domicile of choice: should it be retained? 
2.1 Rebuttable presumptions 
2.2 Most significant connection 
2.3 Conclusion
3 Domicile as a jurisdictional and a conflicts connecting factor in  South African law: future directions 
3.1 Status-related issues 
3.2 Issues other than status 
3.3 Conclusion 
CONCLUSION 
BIBLIOGRAPHY 

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DOMICILE AND JURISDICTION AS CRITERIA IN EXTERNAL CONFLICT OF LAWS WITH PARTICULAR REFERENCE TO ASPECTS OF THE SOUTH AFRICAN LAW OF PERS

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