INTRODUCTION
Domicile is known as the country which a person officially has as their permanent home
or has a substantial connection with. A person is automatically assigned with a domicile
following his parents which is also called the “domicile of origin”. However, this only applies
for a legitimate child whilst an illegitimate child or children born after the death of their father
will acquire the domicile of the mother. The domicile will continue to the extent where the
person voluntarily exercised to change their domicile but only until when attained the age of
18. The domicile is also unlikely to change even if migration take place unless there are specific
measures taken to change the domicile. Domicile of origin is indestructible and tend to revive
after the revoking of domicile of choice known as the “revival rule”.
Many people especially expats and migrants tend to get confused or face legal
complications since the courts use a subjective test to determine the domicile of a person that
includes intention, voluntary change of place and the change of domicile is not taking place
under circumstantial duress or work purposes. However, there are few things such as
application for permanent residency or citizenship, purchase of properties, building
matrimonial life in a new place or country can be strong and valid factors to prove a change of
domicile.
Domicile is important in Malaysia since it is prevalent in the Law Reform Act
1
(Marriage and Divorce) 1976 such as its applicability for marriage under section 26(1)(c),
section 104 (b) and (c), and divorce under section 48(1) where both parties must be domiciled
in Malaysia to commence a divorce proceeding. It is also a requirement to legitimise a child of
a void marriage that the father of the child must be domiciled in Malaysia under section 75(3).
1
Act 164
,QUESTION 1
ISSUE 1: What is the domicile of Peter at the time of his death?
The domicile of origin of Peter is England. Every person has a domicile of origin which
they acquire at birth and as a general principle it is carried along throughout the person’s
lifetime. In Udny v Udny2, the principle established is that a legitimate child who was born
while the father is still alive will get the father’s domicile while if a child is illegitimate or born
after the father’s death, the child would obtain the mother’s domicile.3
In the present situation; at first, Peter came to Malaysia for the purpose of work. In
Malaysia, to obtain a domicile of choice the person should be at least 18 years old and above
according to the Age of Majority Act 19714. The person also must prove two factors in order
to obtain a domicile of choice. Firstly, the change of place or residence must be a voluntary
act. The second factor is the person must have an intention or objective to stay on a permanent
basis. In this situation Peter’s initial intention was rebutted because he had to come
Malaysia to work and this is not a voluntary act on his behalf. He also does not have an
intention to stay on a permanent basis in Malaysia.
In Udny v Udny5 the plaintiff was originally from Scotland where he had bought a
house. He lived in England for 32 years and at that point, there was no doubt that he has changed
his domicile from Scotland to England. However, he subsequently sold his house in England
and left for France. At this point, his domicile of origin was revived because by selling his
house, his intention was to terminate his domicile of choice. Thus, the applicable domicile to
him now was that of Scotland.
2
[1869] LR 1 Sc & Div 441; 7 Macq 89, HL
3
Ibid at p
4
Act 21
5
Ibid at footnote 2
1
, Further referring to the case of the Winans & Anor v Attorney General6, the plaintiff
was an American citizen who resided in Russia for some time, had various residence in
England, and sporting leases in Scotland. He married a Guernsey lady in Petersburg and he had
a property in United States and originally went to England upon recommendation of his doctor.
In this case there is an involuntary act as the act of moving from a place to another after
recommendation of a doctor due to health reasons. Applying in this situation, Peter’s act of
moving to Malaysia is not a voluntary act since he moved for work purpose. Though he
has no intention in staying permanently or his act of moving to Malaysia is not voluntary act
but eventually he had developed an intention by marrying a Malaysian citizen.
In the case of Shaik Abdul Latif v Shaik Elias Bux7 the deceased had a domicile of origin
in Hong Kong. He moved from Hong Kong to Singapore and subsequently to Kuala Lumpur
where he had lived for 19 years until his death. While in Selangor he built a home for his family
and regarded Selangor as his place of residence. He never owned any house or property in
Hong Kong and his wives are Chinese who embraced Islam and have never visited China. The
court held that the deceased acquired the domicile of choice in Selangor. Referring to this
situation, Peter bought a matrimonial house together with his wife where it shows that Peter
seems to have intention to stay permanently in Malaysia. He is also an active member of a non-
governmental organization which fights for the rights of mentally and physically challenged.
This makes his intentions to stay in Malaysia much stronger.
Furthermore, Malaysia is also the place where Peter lived with his wife and daughter.
In the case of Joseph Wong Phui Lun v Yeoh Loon Goit8 the petitioner has a mistress and lives
with her in Singapore and the petitioner has become a permanent resident in Singapore and
have issued a blue identity card. He also had children born through her. His marriage in
6
[1904] AC 287 (HL)
7
[1915] 1 FMSLR 204
8
[1978] 1 MLJ 236
2
Domicile is known as the country which a person officially has as their permanent home
or has a substantial connection with. A person is automatically assigned with a domicile
following his parents which is also called the “domicile of origin”. However, this only applies
for a legitimate child whilst an illegitimate child or children born after the death of their father
will acquire the domicile of the mother. The domicile will continue to the extent where the
person voluntarily exercised to change their domicile but only until when attained the age of
18. The domicile is also unlikely to change even if migration take place unless there are specific
measures taken to change the domicile. Domicile of origin is indestructible and tend to revive
after the revoking of domicile of choice known as the “revival rule”.
Many people especially expats and migrants tend to get confused or face legal
complications since the courts use a subjective test to determine the domicile of a person that
includes intention, voluntary change of place and the change of domicile is not taking place
under circumstantial duress or work purposes. However, there are few things such as
application for permanent residency or citizenship, purchase of properties, building
matrimonial life in a new place or country can be strong and valid factors to prove a change of
domicile.
Domicile is important in Malaysia since it is prevalent in the Law Reform Act
1
(Marriage and Divorce) 1976 such as its applicability for marriage under section 26(1)(c),
section 104 (b) and (c), and divorce under section 48(1) where both parties must be domiciled
in Malaysia to commence a divorce proceeding. It is also a requirement to legitimise a child of
a void marriage that the father of the child must be domiciled in Malaysia under section 75(3).
1
Act 164
,QUESTION 1
ISSUE 1: What is the domicile of Peter at the time of his death?
The domicile of origin of Peter is England. Every person has a domicile of origin which
they acquire at birth and as a general principle it is carried along throughout the person’s
lifetime. In Udny v Udny2, the principle established is that a legitimate child who was born
while the father is still alive will get the father’s domicile while if a child is illegitimate or born
after the father’s death, the child would obtain the mother’s domicile.3
In the present situation; at first, Peter came to Malaysia for the purpose of work. In
Malaysia, to obtain a domicile of choice the person should be at least 18 years old and above
according to the Age of Majority Act 19714. The person also must prove two factors in order
to obtain a domicile of choice. Firstly, the change of place or residence must be a voluntary
act. The second factor is the person must have an intention or objective to stay on a permanent
basis. In this situation Peter’s initial intention was rebutted because he had to come
Malaysia to work and this is not a voluntary act on his behalf. He also does not have an
intention to stay on a permanent basis in Malaysia.
In Udny v Udny5 the plaintiff was originally from Scotland where he had bought a
house. He lived in England for 32 years and at that point, there was no doubt that he has changed
his domicile from Scotland to England. However, he subsequently sold his house in England
and left for France. At this point, his domicile of origin was revived because by selling his
house, his intention was to terminate his domicile of choice. Thus, the applicable domicile to
him now was that of Scotland.
2
[1869] LR 1 Sc & Div 441; 7 Macq 89, HL
3
Ibid at p
4
Act 21
5
Ibid at footnote 2
1
, Further referring to the case of the Winans & Anor v Attorney General6, the plaintiff
was an American citizen who resided in Russia for some time, had various residence in
England, and sporting leases in Scotland. He married a Guernsey lady in Petersburg and he had
a property in United States and originally went to England upon recommendation of his doctor.
In this case there is an involuntary act as the act of moving from a place to another after
recommendation of a doctor due to health reasons. Applying in this situation, Peter’s act of
moving to Malaysia is not a voluntary act since he moved for work purpose. Though he
has no intention in staying permanently or his act of moving to Malaysia is not voluntary act
but eventually he had developed an intention by marrying a Malaysian citizen.
In the case of Shaik Abdul Latif v Shaik Elias Bux7 the deceased had a domicile of origin
in Hong Kong. He moved from Hong Kong to Singapore and subsequently to Kuala Lumpur
where he had lived for 19 years until his death. While in Selangor he built a home for his family
and regarded Selangor as his place of residence. He never owned any house or property in
Hong Kong and his wives are Chinese who embraced Islam and have never visited China. The
court held that the deceased acquired the domicile of choice in Selangor. Referring to this
situation, Peter bought a matrimonial house together with his wife where it shows that Peter
seems to have intention to stay permanently in Malaysia. He is also an active member of a non-
governmental organization which fights for the rights of mentally and physically challenged.
This makes his intentions to stay in Malaysia much stronger.
Furthermore, Malaysia is also the place where Peter lived with his wife and daughter.
In the case of Joseph Wong Phui Lun v Yeoh Loon Goit8 the petitioner has a mistress and lives
with her in Singapore and the petitioner has become a permanent resident in Singapore and
have issued a blue identity card. He also had children born through her. His marriage in
6
[1904] AC 287 (HL)
7
[1915] 1 FMSLR 204
8
[1978] 1 MLJ 236
2
