Domicile

4.1 Introduction

Establishing a legal system that determines a person's status is crucial as legal systems vary from country to country and jurisdiction to jurisdiction. Generally, a person's private-law status is determined by the law of their nationality, which includes aspects like citizenship and personal rights under that nationality. In South Africa, however, private law status is determined by the law of the domicile, referred to as lex domicilii. This means that the legal status of a person, for instance defining if they are considered a minor, is based on where they legally reside.

Example:

Lex domicilii defines a person's legal status and rights. For instance, the domicile of origin determines a child's legal status based on the parents' marital status at birth, thus impacting inheritance and custody issues immediately.

4.2 Importance of Lex Domicilii

Lex domicilii is critical for various legal aspects:

• Law of Succession: Lex domicilii determines how movable property devolves upon intestacy and a person's capacity to make wills, impacting estate planning and distributions.

• Jurisdiction: Courts generally exercise jurisdiction over matters regarding personal status where the individual is domiciled, meaning legal issues are often resolved based on local laws.

• Enforcement of Foreign Judgments: Lex domicilii plays a significant role in determining whether a foreign judgment can be enforced locally, which is essential for cross-border legal matters.

• Matrimonial Property System: The husband’s lex domicilii at the time of marriage determines which matrimonial property regime applies, such as in community of property unless stated otherwise. This can heavily influence financial arrangements during marriage and divorce proceedings.

4.3 South African Law and Civil Unions

There are ongoing legal issues regarding lex domicilii concerning same-sex civil unions. Current laws inadequately address property rights for same-sex partners due to a lack of a defined 'husband' role. This has raised concerns about discrimination under the equality clause of the South African Constitution. Consequently, there have been suggestions for legislative action to rectify the inequitable treatment of same-sex partners in domestic matters.

4.4 Replacement by Domicile Act 3 of 1992

Before 1992, domicile law relied heavily on common law, resulting in significant uncertainties about individuals' legal statuses. The Domicile Act, effective from August 1, 1992, aimed to clarify these uncertainties and provide a clearer legal framework.

• Key Question: Can a person have multiple domiciles at once? This remains an unsettled question in South African law, with courts differing on their interpretations. Many modern legal authors suggest that only one domicile can exist at a time, which influences various legal outcomes.

• Non-retroactive Nature of the Act: Importantly, the Domicile Act does not apply retrospectively to rights or liabilities incurred before the Act’s enactment, which maintains continuity for past legal affairs involving domicile.

4.5 Definition and Principles of Domicile

A domicile refers to the place where a person is legally recognized as present for exercising their rights and obligations, regardless of their physical presence.

• General Principles: Every person must have a domicile, and while there is confusion over the potential for multiple domiciles, common law indicates that only one domicile can exist at a time. This has implications for personal legal status and jurisdictional issues.

4.5.1 Types of Domicile

• Domicile of Origin: This is assigned at birth and revives if a person abandons their chosen domicile without acquiring a new one. It primarily determines a person’s marital status under the law.

• Domicile of Choice: Individuals with the necessary capacity can select their domicile based on the intention to settle in a particular location.

  • Competence requirements: Individuals must be adults or emancipated minors and possess mental capacity.

  • Presence and Intention: Lawful presence in a location is required, as well as an intention to settle indefinitely.

4.5.2 Assigned Domicile

This type of domicile is for individuals unable to choose due to their circumstances, such as minors and mentally incapacitated individuals. Their domicile is assigned based on their closest connection and legal status.

• Minors derive their domicile primarily from their parents’ domicile unless they subsequently acquire a domicile of choice.

• Mentally incapacitated individuals maintain the domicile they had prior to their incapacity, ensuring a degree of legal stability.

4.5.3 Domicile of Specific Groups

• Military Personnel and Diplomats: Historically, these individuals were excluded from acquiring a domicile of choice due to the nature of their assignments. However, recent cases have allowed for the potential acquisition of domicile, contingent on maintaining lawful status and the intention to reside indefinitely.

• Prisoners: There has been ongoing debate about the acquisition of domicile by individuals while imprisoned. Recent rulings have permitted the acquisition of domicile while incarcerated under specific legal frameworks.

Conclusion

The law surrounding domicile in South Africa is complex and has evolved significantly, particularly since the introduction of the Domicile Act. Continuing debates surrounding equality issues significantly affect the treatment of individuals in same-sex unions and other specific circumstances. Understanding the nuances of domicile is essential for navigating legal rights and obligations within South African law.