FAMILY LAW : DOMICILE

A153000

Issues:
1. Whether Rama acquired domicile of choice in Malaysia?
2. Whether Malaysia Court has the power/jurisdiction to order for division of Rama’s assets?
3. Whether there’s abandonment of Rama’s domicile of choice?

RAMA SUCCESSFULLY PORVED THERE’S A CHANGE OF DOMICILE

For one to change his/her domicile from the one of origin to that of choice, that individual has to
express his/her intention and take active steps to acquire a domicile of change.

Case : JAMES SLOAN V SARALA DEVI SLOAN (2010) 4 CLJ 483

While the test that a person must have "burnt his boats" remains, a review of all the circumstances
to prove that the petitioner not only resided in Malaysia but has the intention to make that
residence permanent for an indeterminate period of time appears to suffice

Case : JOSEPH WONG PHUI LUN V YEAH LOON GAIT (1978) 1 MLJ 236
On the issue of the burden of proof to be discharged (to establish a change of domicile), the Court
held that the burden is one beyond a mere balance of probabilities.

Case : JAMES SLOAN V SARALA DEVI SLOAN

A person does not have to divest his nationality to show that he has acquired a domicile of choice

Requirements to change domicile:

- must obtain change of place in advance, must be voluntary and not compulsion (such as work
reason)
- must prove intention to live the place permanently

Factors to be taken into consideration:

- Intention to stay longer/permanent
- Purchase of house/properties
- Voluntary change (valid reason, not due to compulsion)
- Wife and children living together
- Citizenship application

Relevant cases:

Case : JOSEPH WONG PHUI LAN V YEOH LOOI GOIT

- P was from KL, got transferred to SG
- He left behind his children and wife and KL
- P had mistress and lived with her in SG
- P had children born through his mistress
- His marriage in KL was dissolved
- Therefore, court has jurisdiction to decide upon P’s petition for divorce

Case : PARAMESUARI V AYADURAI

- Both parties had taken out application paper for federal citizenship
- Husband had secured a permanent job with government
- Husband’s domicile was in Malaysia during petition

Case : MELVIN LEE CAMPLBELL V AMY ANAK EDWARD SUMEK

- P asserted he had abandoned his domicile of origin and acquired Malaysian domicile of choice
- P submitted he had lived in MY for more than 10 years
- However, Court was not satisfied that his domicile of origin had been abandoned
- He did not buy and property or made any actual investment in MY
- His previous business enquiries were exploratory in nature
 FAMILY LAW : DOMICILE
A153000
- He only married to a native and had a child
- Plus P was a pilot travelling around, only employed as a pilot in Kuching

MALAYSIA COURT DOES HAD JURISDICTION

The Malaysian court has the power, when granting and pronouncing a decree of divorce or judicial
separation, to order the division between the parties to a marriage (or the sale and division of the
proceeds of sale) of any assets acquired by them during the marriage. The recent amendment to
section 76 of the LRA has removed the distinction between assets acquired by the joint effort of
parties and assets acquired by the sole effort of one party. The amended section now empowers
the court to order the division of any assets acquired during the marriage and shall incline towards
equality of division having regard to the extent of the contributions made by each party towards the
acquisition of the assets, or payment of expenses for the benefit of the family; the extent of the
contributions made by the other party who did not acquire the assets to the welfare of the family by
looking after the home or caring for the family; any debts owing by either party which were
contracted for their joint benefit; the needs of any minor children in the marriage and the duration of
the marriage

HOWEVER,
DAMA’S DOMICLE OF CHOICE CAN BE CHALLENGED DUE TO THE FACT THAT HE IN FACT
HAS RETURNED TO INDIA FEW TIMES
Case : RE BHAGWAN SINGH DECD (1964) MLJ 360
A person who has formed the intention of leaving a country "does not cease to have his home in
that country until he acts according to his intention. Domicile … is divested only when the country
of domicile has been actually abandoned with the intention of abandoning it forever" (Re Bhagwan
Singh Decd (1964) MLJ 360).

Case : SHAIK ABDUL LATIF V SHAIK ELIAS BUX

- Purchasing property, marrying a local woman and never returning to place of origin can amount
to change of domicile
- The deceased has never returned to his domicile of origin at HK
- 2 of his wives also never returned to China and all of them had converted to Islam
- His division of property was followed according to Islamic Law of Selangor

THEREFORE,
HIS DOMICILE OF ORIGIN (INDIA) WILL REVIVE UPON ABANDONMENT OF DOMICILE OF
CHOICE (MALAYSIA)
Case : Udny v Udny
 FAMILY LAW : DOMICILE
A153000
KHOO KAY PENG V. PAULINE CHAI SIEW PHIN
[2014] 10 CLJ 440

Issues

(1) Whether the wife is domiciled in Malaysia.

whether as a wife, the wife’s domicile is a domicile of dependence, or whether she can have her
own domicile of choice.

(2) Whether this court has jurisdiction to try this matter.

Authorities

S. 48(1)(C)
Burden of proof was on the husband to prove that both he and the wife were domiciled in Malaysia.
The husband was never permanently in England. He was still living in Malaysia. Since the husband
was a citizen of Malaysia, he was deemed under s. 3(2) of the LRA to be domiciled in Malaysia.

The law applicable for this court to dissolve a marriage is found in ss. 48 and 49 LRA 1976. Section
48(1) of LRA 1976, authorizes the court to grant a decree of divorce in such circumstances.

Section 49 provides additional powers to the court to grant a decree of divorce to a wife in certain
circumstances. Therefore s. 49 of out Act gives this court additional jurisdiction to dissolve this
marriage as the respondent wife has been deserted by the petitioner husband, and she has
resided here in Malaysia for more than two years - in fact throughout the marriage.

The law applicable for this court to declare a foreign decree as valid is found in s. 107 of LRA 1976.
Section 107

S. 3(2) OF LRA 1976

the petitioner was deemed to be domiciled in Malaysia, and the burden was on him to rebut this
presumption of law.

S. 3(1) CLA 1956

the common law of England and rules of equity as administered in England on 7 April 1956 apply
to Peninsular Malaysia. From 7 April 1956 until the time when the LRA came into force on 1 March
1982, the common law rule on a wife’s dependent domicile applied in F Malaysia. It meant that a
wife’s domicile is a domicile by dependence, and it automatically follows that of the husband’s
domicile upon marriage. (see Charnley v. Charnley And Betty [1959] 1 LNS 12; [1960] MLJ 29, and
Kanmani v. Sundarampillai [1957] 1 LNS 30; [1957] MLJ 172, at p. 174).

NEDUNCHELIYAN BALASUBRAMANIAM V. KOHILA BHANMUGAM [1997] 4 CLJ 676

we are of the opinion any Malaysian woman upon marriage will acquire her husband’s
domicile and until that marriage is lawfully dissolved

SIAH TEONG WOEI V. JANET TRAYNOR [2010] 3 CLJ 361

In Malaysia, the law on domicile is similar to common law. As regard to a domicile of
dependence, a woman takes the domicile of her husband upon marriage. In another word
a married woman cannot acquire a domicile separate from that of her husband. A married
couple have therefore, only one domicile and that is the domicile of the husband. The logic
for this dependence is because under common law, a husband and a wife are viewed as
one entity. The woman takes her husband’s domicile upon marriage and she retains it. She
can abandon her husband’s domicile but she has to prove and satisfy the court that the
abandonment is permanent and unequivocal before the court can take cognisance of it.
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GARTHWAITE V. GARTHWAITE [1964]
It is well established that a wife upon her marriage acquires by operation of law the
domicile of her husband, which she retains so long as the marriage subsists:

NANTHIVARMAN PICHAMUTHU MOOKIAH V. SHARMINI PILLAI [2011]

the fact of a party applying and obtaining even permanent residence status in the UK was not
conclusive of domicile in that State. I do not think that having a UK address since 2000, not being
able to understand the Malay language, being employed in the UK, having his own company in the
UK since 2003, having bank accounts, credit cards and life insurance policies there, and paying
British council taxes conclusively prove that the PH has given up his domicile in Malaysia. From all
these factors, it is clear that the PH is living and working in the UK, and he has to be subject to the
tax laws there. However, what is paramount is the PH’s intention, that he will not give up his
domicile in Malaysia. For as long as the PH is not a British citizen, but is merely a PR in the UK,
and he has not relinquished his Malaysian citizenship, it proves that the PH has not cut off his roots
to his domicile of origin in Malaysia.

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AIR ASIA BHD V. RAFIZAH SHIMA MOHAMED ARIS [2014] 1 LNS 1176; [2014] 5 MLJ 318
CA dealt specifically with the provisions of CEDAW and held that it cannot be treated as part of
domestic law unless it is expressly incorporated by way of statute.

BATO BAGI & ORS V. KERAJAAN SARAWAK & ANOTHER APPEAL [2011] 8 CLJ 766
International treaties do not form part of our law unless these provisions have been
incorporated into our law.

As regard to a domicile of choice, any person may acquire a domicile of choice provided he is an
adult, that is to say, 18 years old according to s. 2 of the Age of Majority Act 1971. When a domicile
of choice is obtained, the domicile of origin would be held in abeyance until abandonment of the
domicile of choice.
Clear evidence is required to establish a change of domicile. In particular, to displace the domicile
of origin in favour of the domicile of choice, the standard of proof goes beyond a mere balance of
probabilities. This principle was established by Sir Jocelyn Simon P in the case of HENDERSON V.
HENDERSON [1965] 1 ALL ER 179

JOSEPH WONG PHUI LUN V. YEOH LOON GOIT [1978] 1 LNS 76

Case authorities have held that the oath of a person whose domicile is in question as to
his intention to change his domicile is not conclusive. The question for this court is whether
upon a review of all the circumstances it gives credit to his evidence.

the 90 days residence to my mind is not sufficient to constitute that the petitioner has acquired a
domicile of choice in the USA since the period is too short a stay to show his intention to make the
USA his permanent residence, where if he is absent, he has every intention of returning. (Refer to
this court's decision in JAMES SLOAN V. SARALA DEW SLOAN [2010] 4 CLJ 483 on the issue
of domicile of choice