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CHAPTER THREE DOMICILE AS A CONNECTING FACTOR IN CERTAIN MATTERS OTHER THAN STATUS
Introduction
In the previous chapter the blurred distinction between jurisdiction and choice of law in the field of status-related issues was explored. In this chapter the remaining areas of both jurisdiction and choice of law, where domicile is used as a connecting factor, will be canvassed. However, in these areas (in other words, non-status matters) the issues of jurisdiction and choice of law are clearly separated and will be treated accordingly.
Jurisdiction
In the ordinary course of events domicile is a very common jurisdictional connecting factor. However, it does not occupy the special position2 that it does in regard to status-related issues.
The relevance of domicile
In many instances the jurisdiction of the court will depend on whether one of the parties to an action is domiciled within the court’s area of jurisdiction. This is especially the case in claims sounding in money where the question is often whether the plaintiff or defendant is an incola of the court. 3 An incola of the court is somebody who is either domiciled or resident in the court’s area of jurisdiction. 4 Though not totally unrelated, domicile and residence are different concepts. It has been said that residence means » … more than domicile, because a person may be domiciled in a country in which he has never set foot, 5 whereas one cannot speak of a person residing in a country unless at some time he has set foot therein; less than domicile, because a person may be resident in a country without having the animus manendi which is an essential ingredient of domicile in so far as the law considers the actual permanent home as the domicile … « However, it seems reasonable to conclude that, in most cases, it will be easier to found jurisdiction on residence than on domicile, since proof of the latter is fraught with difficulties. 1 Domicile also constitutes a ground for jurisdiction in matters relating to insolvency. In terms of the Insolvency Act8 the debtor’s domicile is one of the jurisdictional criteria for granting an order of insolvency. 9 However, domicile is not the only criterion: the situation of the debtor’s property, as well as the debtor being ordinarily resident or carrying on business within the court’s area of jurisdiction, are all listed in the alternative as jurisdictional criteria. 10 Another area where domicile may be employed as a jurisdictional connecting factor,is in claims relating to property. Although the forum rei sitae seems to dominate jurisdiction in regard to property in general, 11 the domicile of the defendant may be invoked as a jurisdictional criterion in order to effect the transfer of immovable property or a part thereof (in the case of partition). Since the domiciliary court of the defendant has control over the defendant, that court may compel him to sign a deed of transfer. 12 Where a minor owns immovable property application to sell or mortgage such property must be made to the court of the minor’s domicile, since that court is the upper guardian of the minor. 13 The forum domicilii also constitutes, besides the forum rei sitae 14 and other statutory grounds, 15 a common law jurisdictional ground for the appointment of a curator bonis to manage both the movable and immovable corporeal, as well as the incorporeal property of an incapacitated person.
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 » . ? su 1ec 1ve or o 1ect1ve
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
2 Jurisdiction
3 The conflicts connecting factor versus the jurisdictional connecting factor
4 Other connecting factors
5 Conclusion
CHAPTER SEVEN DOMICILE IN SOUTH AFRICAN LAW: THE WAY AHEAD
Introduction
1 The true meaning of domicile
2 The animus requirement for a domicile of choice: should it be retained?
3 Domicile as a jurisdictional and a conflicts connecting factor in 1 South African law: future directions
BIBLIOGRAPHY
