Every person has a home for legal purposes . It is the country whose governmental authority that person heeds, where he pays his taxes, where he derives state benefits etc. This is known as his country of domicile.
The term “domicile is derived from the Latin term “domicilium” which in turn comes from “domum colere”, meaning inhabit the home.
Domicile is therefore your place of habitual and physical residence where are you are presumed to be present and where you have shown an intention to be present indefinitely. This principle is however complicated by the fact that residence and domicile are not always the same thing.
A person can never be without a domicile, nor can he ever have more than one domicile. Domicile may however be changed.
In our law a person’s private legal status is determined by the law of the country in which he is domiciled (the lex domicilii) . By contrast in many continental legal systems a person’s legal status is determined by the law of the country of which that person is a citizen.
The following illustrate the importance of domicile apart from the issue of status:
(a) the property consequences of a marriage are determined by the laws of the country in which the husband was domiciled at the time of marriage. This does not change despite any subsequent change in his domicile.
(b) where someone dies without a will (intestate), succession to movable property in the deceased’s estate is governed by the law of the country in which the deceased was domiciled at the time of his death.
(c) the legitimacy or otherwise of a child is determined by the law of the father’s domicile at birth,
(d) an order of divorce may be granted by the court within whose jurisdiction either or both husband and wife are domiciled at the time the action is instituted.
From a practical point of view, domicile comes into play when signing a contract or agreement. A party to an agreement chooses an address at which any document relevant to the agreement may be served on him. This is known as his domicilium citandi et executandi.
Very often a residential address is chosen for this purpose with disastrous consequences if that person leaves that address. Unless his domicilium has been changed, documents can still be served on him at that address even though he no longer lives there.
In our law there are two types of domicile, domicile by operation of law and domicile of choice.
(a) The Domicile Act 3/1992 provides that a person younger than 18 or someone lacking the required mental capacity to make a rational decision, cannot acquire a domicile of choice. Such persons are assigned a domicile by operation of law ie at the place at which they are most closely connected. This would necessitate a factual enquiry into the relevant circumstances.
(b) Domicile of choice is acquired by a person having the necessary legal capacity to so. He would establish his presence in a particular place with the intention of being there indefinitely (this is known as the animus manendi,( the intention to remain).
The basic requirement for domicile of choice is habitual and physical presence in the intended chosen domicile. Although there is no prescribed minimum period of residence to determine if a choice has been made, a short visit may suffice if the intention to remain is present. The converse also applies. A lengthy stay in a particular place Is not necessarily automatic evidence of the animus manendi.
Length of residence is nonetheless an important yardstick in determining the issue.
A person’s presence in an intended domicile must be lawful. A prohibited immigrant cannot acquire a domicile of choice in SA even if the intention to remain is present. Similarly, a deportee from SA cannot retain SA as his domicile of choice as his intention to remain is meaningless.
Domicile of choice can only be acquired by the exercise of a person’s own free will. A member of the armed forces for example does not acquire domicile simply by being stationed in a particular place on government orders. He can however acquire domicile in that country once discharged from duty. The same would apply to members of the diplomatic service.