International Family Law
for International Families with Connection to Malaysia
What is Domicile?
Why does it matter?
Domicile is a concept that describes a particular type of link between an individual (or a company) and a country. When it comes to legal matters, a court cannot simply assume its jurisdiction (power) upon an individual (or a company) unless that person submits under the jurisdiction of the court, otherwise, the order or judgment is not binding upon that person.
To see whether a court has jurisdiction over that person, we have to determine a person's domicile. Hence, you will not know which country you should deal with your family disputes in unless you have your domicile issue identified. The work of identifying the domicile of a person demands a lawyer to have specific practice and experience in international law. A person's nationality is not the sole determining factor of domicile.
Types of Domicile?
Why does it matter?
The complexity of determining a person's domicile arise when that person acquires his domicile of choice. However a person cannot simply claim that he has acquire his domicile of choice unless he has satisfied the court that he had done so.
Prior determining domicile of a person, one has to know that there are 3 kinds of domicile:-
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Domicile of Origin - which is the domicile assigned by law to a person when he or she is born. In Malaysia, a child who is born legitimate, will assume the domicile of the father, if illegitimate the domicile of the mother. However, an illegitimate child may be deemed legitimate by the subsequent marriage of the parents. It is also expressly stated in the Law Reform (Marriage & Divorce) Act 1974, that a person who is a citizen of Malaysia shall be deemed, until contrary is proved, to be domiciled in Malaysia. This Act governs marriage and divorce in Malaysia but has not application to a Muslim.
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Domicile of Choice - which is the domicile which any independent person can acquire by a combination of residence and intention. Hence a person who has his domicile of origin in Malaysia may acquire his domicile of choice in another country that he resides and has intention of permanent or indefinite residence.
This situation usually confused many parties who has no adequate knowledge in the area. A person cannot simply acquire domicile of choice just because he is currently residing in a country other than his domicile of origin. He has to establish that not only he had resided in some other country, however long, he needs to show that he has the intention to reside for permanent without the intention to leave the country at some time. Most disputes about domicile turn on the question as to whether the necessary intention accompanied the residence. This question often involves very complex and intricate issues of fact. There is no circumstance which defines the criteria as to what amounts to one's intention of permanent residence. It has been decided by many case laws that a person's acquisition of residency in other country is not conclusive of one's domicile of choice. This is because a court is supposed to view the evidence of a person's intention with suspicion.
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Domicile of Dependency - which is the domicile of dependent person. In Malaysia, the domicile of dependency is imposed to married women. All other jurisdictions have abolished the domicile of dependency on married women, except Malaysia and India. This would mean that a woman may have her domicile of origin in Singapore but once she is married, her domicile is dependant on her husband. If
Can a person has more than 1 domicile?
Why does it matter?
No. A person cannot have more than one domicile at the same time. A person also cannot be without a domicile. An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
