Twelfth tutorial: Prepare 2008 paper (Question 1,3, 4 and 5) and 2012 paper (Question 1, 2 and 4)

2012

Mandy DOO of origin was Malaysia. Although she was born in Jakarta but her
domicile of origin will follow her father. This was stated in Udny v Udny -legitimate
child follow father.

Whether she obtain a dom of dependency in new Zealand.

Mandy mother was also having the dom of dependency of Malaysia when her
husband was alive. Upon the death when she remarried, she acquire her new
husband domicile
-Re Scullard Estate (after the husband dies, if the wife has done all that is necessary
to acquire a new domicile of choice, that choice automatically becomes her domicile)
-Mandy retains her dom of origin unless the mother exercise her power to change
the domicile of Mandy.
Portinger v Whitman A child acquires the domicile of the mother on the death of the
father. However, mother can’t change the domicile of the child if it is
disadvantageous to them or it is for some fraudulent purpose-general rule
After the death of the father, if the child continues to live with the mother then any
new domicile acquired by the mother is prima facie also communicated to the child
Johnstone v Beattie. >But then consider Re Beaumont: The mother has the power to
change the child’s domicile upon the death of the father either by taking them to a
new domicile acquired by her or by leaving them where their father was domiciled at
the time of his death
Since the mother has obtain a dom of dependency in NZ by her new husband , as a
general rule in portinger v Whitman, Many domicile change to NZ since she continue
to live with her mother. However by considering re Beaumont, it is not necessary for
the mother change a domicile of their child after the father’s death. If the mother
wanted to change the domicile of their child, she needs to exercise the power bona
fide and with the sole object of promoting the welfare of the child
Applying it to our current situation, there is nothing in the facts that shows the mother
has a bad intention on Mandy. It can also be said that if the mother change mandys
domicile from Malaysia to New Zealand, it might promote Mandy’s welfare because
Mandy is currently living in New Zealand, her father who has a dom in Malaysia has
already passed away in a tragic accident. Nothing in the facts that shows Mandy is
going back to Malaysia. Her mother has obtained a job as an accountant at the
sheep farm in New Zealand and also married a New Zealand man. Therefore,
Mandy has obtained dom of dependency of New Zealand from her mother.
Whether Mandy obtain a domicle of choice In England
In Udny case it was stated that domicile of choice is a conclusion or an inference
which the law derives from the fact of a man fixing voluntarily his sole or chief
residence in a particular place with an intention of continuing to reside there for an
unlimited time. It must be a residence not for a limited period or particular purpose
but general and indefinite in his future contemplation. This indicates two factors
which need to be proven for someone to acquire a domicile of choice, namely
residence and intention. Residence is defined in IRC v Duchess of Portland as
physical presence in that country as an inhabitant of it’.
Applying to the current situation, Mandy has fulfil both requirements of intention and
residence. It can be inferred that for the intention element she applied permanent
residence and join a karate club. She also thought that England was great which
shows that she like being in England. Also, she bought a house there which shows
her residency in England.
Whether domicile of choice in England was abandoned
Tee v Tee
(A man in England, move to USA, then move to Germany and died in Germany)
(held: his domicile of origin in England revive as he did not have any intention to
settle in USA or Germany) (he did have domicile of choice at USA but it lost when he
moved to Germany but still he did not settle down at Germany. Therefore, the
domicile of origin revive) (doctrine of revival)
Applying to the current situation, Mandy has lost her dom of choice in England
because she has move out of England by selling all her belongings and goes back
packing in Europe. Currently, Mandy did not make a choice on where she would
settle down. This means she is in between dom. Therefore, her doo of origin will
revive based on doctrine of revival which is dom of Malaysia.

2. Brook v Brook -capacity to marry is regulated by the law of the domicile (lex domicilli) and the
form of the marriage is to be regulated by the law of the country which it is celebrated (lex loci
celebrations)

-Formalities of marriage = nature of ceremony, parties to be present and the person officiating

-Capacity = age, prohibited relationship, religion, mental health

Berthiaume v Dastous -if a marriage is good by the laws of the country where it effected, it is good
all the world over, no matter whether the proceeding would or would not constitute marriage in the
country of the domicile of one or other of the spouses

1.1.3 Where the party is a member of the military force in an occupied country

Taczanowska v Taczanowski
- if u were at enemy state, u do not need to follow enemy state's law and just follow your own
country law of marriage - Polish couple marry without following Italy's law, since they were Polish
army in Italy, therefore their marriage is valid

Kochanski v Kochanski -this exception also extended to refugees -Polish couple but they were civilian
in Germany and they get marriage according to Polish law. The marriage was held to be valid despite
not according to German law as there are forced to go to Germany

Merker v Merker -Held: this exception was only applicable during war time and it is available to be
used by solder, members of resistance force, and escaped prisoner of war. - A Polish domicile
couple, serving in Polish arm camp in German, and got married there not complying German law.
Held that the marriage is valid according to common law as the marriage took place during the war

2008
3-Whether the Malaysian Courts have jurisdiction to hear the case?
4- Johny doo was Madacasgar illegitimate child follow mother and the place where he/she is found.

Whether he obtain dom in Penang

Whether he obtain dom of choice in Philiphines and Camridge

Whether Johny obtain dom of choice in Tanzania