COL Problem question

2015 Q 1

Tom’s question

In this question the legal issue that will determine by a prudent counsel is what Toms (T) domicile would
be from his birth to death during various chronological points of his life, thereby each situation will be
looked at in order to conclude T’s domicile in each of the given landmarks in his life.

Domicile at Birth

In this situation of Tom’s birth, it is the point in T’s life that he would acquire domicile of Origin as
Domicile of Origin is acquired by Birth and will remain until the child turns 16 which is the point where a
child can voluntarily change ones domicile by means of acquiring their Domicile of Choice. At birth the
domicile of a child is determined by several factors as to whether he/she is a legitimate child, or
whether he/she is a foundling or an adopted child. In the above question there are no suggestions to the
contrary that suggests that T is by anyway a foundling or is adopted which eliminates the possibility of T
being a foundling. However the next issue to be considered is whether however T is an illegitimate child
or not in other words whether T’s parents were married or not at the time of T’s birth. According to the
facts in the question it suggests that T’s parents however were not married at the time of T’s birth in
1960 but were married only 2 years later in 1962. This subsequently makes T an illegitimate child which
requires him to obtain the domicile of his mother at birth due to this reason. This takes us to the next
issue on what T’s mother’s domicile is at the time of T’s birth. Mary T’s mother’s domicile of origin is
Ireland, however at the time of T’s birth she was working in London, which takes us to our next
consideration of whether M has established domicile of choice in England, in order to establish domicile
of choice two requirements ought to be satisfied which is the residence requirement and the intention
of permanent residence. In this situation in order to satisfy the first requirement no fixed period of
residence needs to be established in fact it is seen that the courts have found this requirement to be
satisfied even when residence was only for a period as much as part of a day in the case of white v
tenant . however the more cumbersome requirement to satisfy would be the requirement of intention,
from a glance at such a situation it was held in the case of Irvin v Irvin that intending to live in a country
for the duration of employment would not satisfy the requirement of intention unless during ones
duration of employment one forms the intention of wanting to reside in the country indefinitely as was
held in Donaldson v Donaldson however there are no facts to assume to the contrary that M had an
intention to reside indefinitely in England at the time of T’s birth therefore it can be pleaded that in fact
T’s domicile at the time of his birth is Ireland.

Domicile upon Tom’s parents getting married

According to S. 3(1) of the Matrimonial proceedings act it states that the domicile of a child will depend
on the parents domicile until he/she is 16 years old, therefore when T’s parents get married two years
after he is born, T is legitimized at this point when his parents get married. Thereby his domicile of
dependency will now depend on the domicile of his father at this point, as a result the domicile of his
father Abdul must be determined which will essentially be T’s domicile. This leads us to question
whether A although living in England has obtained domicile of Choice in England at this point. In order to
establish the domicile of choice in England 2 requirements as mentioned previously must be satisfied,
which is the residence requirement which A would be able to satisfy easily as he had been living in
England up to this point for 10 years which would undoubtedly satisfy the residence requirement as
even momentary or residence for a part of the day was found to satisfy this requirement of residence;
Bell v Kennedy, White v Tenant. However the more difficult requirement to prove would be intention
because a contingent factor is present in the given facts, a contingent factor is one where a person
intends to remain indefinitely in a country unless the occurrence of an event which may or may not
arise. In the above facts the contingent factor is that A although has been living in England for 10 years
hopes to return to Egypt one day, as he is a refugee from Egypt. However the cts have further
considered if this contingent factor is vague or in accordance with the case of Sekhri v Ray it will be
determined if the contingent factor is no more than a pipe dream, then intention to indefinitely reside in
the country would be present as was held in the case of Doucet v Geoghehan on the other hand if the
contingent factor can be realistically anticipated then intention was not found to be present to obtain
the domicile of choice. Applying the law to the facts in question, it is evident that A’s contingent factor
which is ‘his hope to return to Egypt one day’ is not a very realistic one as he himself knew or believed
so. Instead it can be considered a pipe dream and for this reason he would obtain the domicile of choice
in England having satisfied both the requirements of intention and residence to obtain domicile of
choice in England. Therefore A’s domicile at the point of legitimization of T would be England thereby T’s
domicile of dependency would be England accordingly.

Domicile upon emigrating to Australia