5A.

The Role of domicile in determining the jurisdiction and applicable law

governing the dissolution of assets upon an individual
Domicile means the permanent home of a person and their intent to remain there or
return to that place even if they leave for an indefinite period. It forms a crucial legal
concept governing matters of inheritance and succession. Legally, domicile plays a key
role in the writing of a will and is also prominent for laws of succession, as according
Myanmar laws, the distribution of the property of a deceased person domiciled in
Myanmar will be conducted according to Myanmar laws. Thus, it can be said that a
person’s domicile plays a very distinctive role in the process of determining jurisdiction
and consequently in determining the law. Also it is important to note that a person can
have only one domicile for the purpose of the succession to his moveable property.
Concept regarding with domicile is provided in Part II of the Succession Act, 1925.
Section 4 of this Act precisely clarifies that “This part shall not apply if the deceased was
a Hindu, Muhammadan, Buddhist, Sikh or Jaina.” This is because the people who follow
the said religions and beliefs have their own customary laws that prescribe how a
succession of movable and immovable property should take place. This also implies that
this part apply only to people who follow other religions, like Christianity, that do not
have any customary laws. According to the Succession Act, 1925, domicile is of three
kinds;

(1) Domicile by origin

Section 7 and 8 of the Succession Act discuss about the domicile by origin which is
the domicile of a person by birth. Domicile is determined by the domicile of the parents
and there are three cases under this. For legitimate child, it is stated in Section 7 of this
Act that “The domicile of origin of every person of legitimate birth is in the country in
which at the time of his birth, his father was domiciled.” For illegitimate child, it has
been mentioned in Section 8 of the Succession Act as “The domicile of origin of
illegitimate child is in the country in which, at the time of his birth, his mother was
domiciled.” On the other hand, for posthumous child, Section 7 also prescribed that “If he
is a posthumous child, in the country in which his father was domiciled at the time of the
father’s death.” Hence, it can be said that the way of acquiring domicile by birth is the
most common way of a person acquires domicile and they continue with till they decide
to change it.
(2) Domicile by choice
As per Section 10 of this Act a man can acquire a new domicile by taking up his fixed
habitation in a country which is not that of his domicile of origin. However, a man is not
to be deemed to have taken up his fixed habitation in the Union of Myanmar merely by
reason of his residing there in (the Myanmar) civil, military, naval or air-force service, or
in the exercise of any profession or calling. Moreover, a person cannot acquire a new
domicile during his minority according to Section 17 of this Act. In addition, pursuant to
Section 12, in case when a person who is appointed by the Government of one country to
be its ambassador, consul or other representative in another country, does not acquire a
domicile in the latter country by reason only residing there in pursuance of his
appointment. This is because they are residing at the time only because of their work or
appointment. In case of domicile by choice, it is important to note that until a new
domicile has been acquired, the domicile of origin prevails.
(3) Domicile by operation of law
This form of acquiring domicile is also called domicile by dependence. The
Succession Act, 1925 further recognized this kind into three categories as follows;
1. Minors: The domicile of a minor follows the domicile of the parents from whom he
derived his domicile of origin under Section 14 of this Act. This is similar to the domicile
by origin that was mentioned earlier.
2. Married woman: Section 15 and 16 states that a married woman acquire the
domicile of her husband, if she had not the same domicile before. However, as in
exception of Section 16, the wife’s domicile no longer follows that of her husband if they
are separated by the sentence of a competent Court, or if the husband is undergoing a
sentence of transportation.
3. People with unsound mind: An insane person cannot acquire a new domicile in any
other way than by his domicile following the domicile of another person according to
Section 18 of this Act. The term another person can be a guardian, parents or even their
spouse if they are married.