The Concept of Domicile

The term domicile is not defined, explained and discussed in the Law Reform (Marriage and

Divorce) Act 1976 (LRA 1976). However, this term is mentioned in some provisions of the

LRA 1976. There is also no specific statute or statutory provision governing the term. In the

absence of such statute or statutory provision, the common law is still applicable for the rules

pertaining to domicile in Malaysia. Thus, in Nanthivarman a/l Pichamuthu Mookiah v

Sharmini Pillai [2011] MLJU 908, the court states that the law in Malaysia regarding domicile

is still based on common law.

According to The Shorter Oxford English Dictionary, domicile means a place of residence

or ordinary habitation; a house or home; the place where one has his permanent residence, to

which, if absent, he has the intention of returning. The meaning and definition of domicile were

elucidated by the Private International Law Committee in its First Report in 1954, in which

it was said to mean the legal system within whose jurisdiction an individual makes his or her

home, intending to remain there permanently.

Domicile and citizenship are two different matters. Domicile determines a person’s civil status,

such as his rights and duties in family law, while citizenship determines his political status,

such as his right to vote or to participate in a referendum. The term domicile may be

differentiated from residence. A person can have only one domicile at one time whereas he can

have more than one place of residence at one time. A person may be domiciled in one place

but resident in another place. There are four types of domiciles, namely domicile of origin,

domicile of choice, domicile of dependence and matrimonial domicile.

Domicile of origin is obtained at birth and in a general situation, a person carries it through his

lifetime. When he acquires a domicile of choice, his domicile of origin becomes suspended and
will be revived upon relinquishment of the domicile of choice. A person’s domicile of origin

follows that of his father, if the person is legitimate, or his mother, if the person is illegitimate.

Domicile of choice may be acquired by any person who has attained the age of 18 years old.

In Malaysia, according to S. 2 of the Age of Majority Act 1971, a person has attained the age

of majority when he or she reaches 18 years old. When a domicile of choice is obtained, the

domicile of origin would be held in abeyance temporarily until abandonment of the domicile

of choice. A change of domicile must be proved clearly by the person who asserts it. The

change of domicile must be voluntary and not because of some compulsion, for example,

because of duties, responsibilities, absconding from creditors, a respite from poor weathers, or

for health reasons. A change of residence must be followed by an intention or objective to live

in the place on a permanent basis. The intention or animus manendi to live in a place must be

proved to the satisfaction of the court.

There are two types of domiciles of dependence namely, that of a child, and that of a wife.

Each child attains the domicile of origin upon birth, and this is normally that of his father; if

the child is illegitimate, he follows the domicile of his mother. An adopted child takes the

domicile of his adoptive father or mother and if the adopters are spouses, the child’s domicile

takes that of his adoptive father. The reason behind this dependence is because it is thought

that a child is unable or incapable of having an intention that is needed to determine domicile.

For a woman, she takes the domicile of her husband upon marriage. A possible reason for this

dependence is because under the common law, a husband and a wife were viewed as one entity.

For as long as they remained married, the woman takes her husband’s domicile. It does not

matter that she may be living separately from her husband either through a decree of judicial

separation or through an agreement. Only a decree of divorce will release her from this

dependence.
In Re Beaumont [1893] 3 Ch 490, a mother and her infant children were domiciled in Scotland.

Upon her remarriage, her second husband went to reside permanently in England. The mother’s

domicile changed to England. All her children who followed her to England had acquired

English domicile, except a child named Catherine. Catherine remained in Scotland until she

died. In this case, Stirling J. decided that since Catherine was a fatherless infant, the mother

had the power to change or to abstain from the change of domicile of her infant. Catherine’s

domicile at the time of her death was in Scotland.

In Nicholas Tan Chye Seng v Au Gek Wee [2014] 8 MLJ 394, the plaintiff husband,

defendant wife, and their son Aydan were all Malaysian citizens. They all were staying in

Malaysia before the wife took Aydan to Singapore without the knowledge of the husband after

an argument. The husband filed this action praying for guardianship, custody, care and control

of Aydan. The court granted an interim order granting sole custody, care and control of Aydan

to the husband. The notice of the originating summons was served on the wife in Singapore.

The wife then filed the application to set aside the originating summons and service thereof

alleging that the court did not have jurisdiction to hear this matter. The wife also sought for a

stay of proceedings pending the final resolution of the proceedings commenced by her in the

Singapore High Court. The defendant's counsel raised the issue of forum of convenience. The

application was dismissed. The court ruled that the forum conveniens was Malaysia since all

parties were Malaysian and stayed in Malaysia until the wife decided to take Aydan to

Singapore. Aydan was studying in Alice Smith School. So, by her taking and moving away to

Singapore, it was- actually her own voluntary conduct. Further, since the originating summons

and all other applications were by way of affidavit evidence, parties need not appear in person

before the court. The LRA 1976 applies to Malaysians even though they are resident outside

Malaysia, which was exactly the position in the case. Based on the facts, all parties were

Malaysians and were deemed, until the contrary was proved, to be domiciled in Malaysia. The
wife had not rebutted the presumption that she and Aydan were no longer domiciled in

Malaysia or no longer resident in Malaysia.

In the Malacca’s case of Ang Geck Chao v Wang Tiew Yong [1997] 3 MLJ 467, the

petitioner was legally married to the respondent on 4 June 1987 at the National Registration

Department in Melaka until July 1996. The petitioner, a Singapore citizen, resided in Singapore,

which is her original place of domicile. The petitioner and the respondent went through chaotic

times and had attempted to settle their differences three times before a marriage tribunal but

without much success and upon the application for divorce by the petitioner, the issue before

the court was whether the court has jurisdiction to hear the case, and whether the petitioner was

domiciled in Malaysia. In relation to the place of domicile of the respondent, no problem was

posed for the court, as not only was he presumed to be domiciled in Malaysia by virtue of his

Malaysian citizenship, but also due to the fact that he was at present living in Malaysia. As

regards the domicile of the petitioner, she was originally domiciled in Singapore but according

to the law of domicile applicable in Malaysia, her domicile changed to that of Malaysia upon

her marriage to her Malaysian husband, the respondent. In this case, since the petitioner was

upon her marriage domiciled in Malaysia, the High Court has the jurisdiction to hear the case

although the petitioner was in Singapore when the petition was presented.

In Khoo Kay Peng v Pauline Chai Siew Phin [2014] AMEJ 1478, the parties were born in

Malaysia. They were lawfully married in Malaysia at St Michael’s Church, Ipoh, Perak on 5

December 1970. The first three children were born in Malaysia while the last two were born in

Perth, Australia. In 1982, the family, namely the wife and the first three children, moved to

Perth, Australia. The husband continued to live in Malaysia and travelled between Perth and

Malaysia. In 1989/1990, the family, namely the wife and the five children, moved from

Australia to Canada. The wife remained with the children in Canada while the husband

travelled between Malaysia and Canada to take care of his business connections in Malaysia.
The wife and children continued to return to Malaysia and when they did, they stayed in their

house in Ukay Heights, Ampang, Selangor. At the time when the originating summons was

filed, the wife was then a Malaysian citizen, and having a Malaysian birth certificate and a

Malaysian Identity Card with old and new numbers. She became an Australian citizen and later

a Canadian citizen. She used to travel on her Australian passport, but now travels on her

Canadian passport. She asserts that she no longer has a Malaysian passport. The wife’s case is

that she has abandoned her domicile in Malaysia and has now made England her domicile of

choice. The court held that as long as the marriage was subsisting, the wife in the present case

had no legal right to choose her own domicile independent from her husband’s domicile.

The concept of matrimonial domicile is applied in England, where the essential validity of a

marriage is to be determined by the law of the country in which the parties intended to make

their matrimonial home. In Radwan v Radwan [1972] 3 All ER 1026, although the wife’s

domicile of origin was England, the marriage was valid since her capacity to enter into a

polygamous union was governed by the law of Egypt where, before their marriage, the parties

had decided to set up their matrimonial residence and where polygamy was practised.