1. Provide the prerequisites and requirements for establishing a domicile of choice.
2. Define and explain who would be assigned a domicile by operation of law.
3. Explain what the domicile of an 11 year old child would be.
4. Explain the principle ‘revival of domicile of origin’ by referring to relevant case law.
5. Jason is a South African born in Cape Town. He meets Sheree, a woman from Angola in 2001 and marries her. Sheree and Jason got married on the island of Barbados in 2004. They subsequently moved to Angola in 2005 to live together. Jason travels to South Africa frequently since he considers it his home despite working and living in Angola. In light of the above, answer the following questions:
a) Where is Jason domiciled?
b) In light of your answer in a) is Jason resident and domiciled in the same place. If not, what is the difference?
c) Suppose Jason and Sheree want to get a divorce, which court would have jurisdiction?
d) Let’s suppose Sheree passes on, if she has immovable property and movable property, which country’s laws would apply to the distribution of the property?
e) Explain the ‘lex domicilii matrimony’ principle and the ongoing constitutional debate surrounding it.
6. Compare and contrast the two main forms of domicile in South Africa.
1. The prerequisites for establishing a domicile of choice include physical presence in the country, intention to reside there indefinitely, and abandonment of the previous domicile. Requirements may vary based on the specific circumstances of each case.
2. A domicile by operation of law is assigned to individuals who are incapable of changing their domicile, such as minors or mentally incapacitated persons. This type of domicile is typically based on the domicile of their guardian or caregiver.
3. The domicile of an 11-year-old child would typically be the domicile of their parent or guardian, as they are not considered to have the legal capacity to establish their own domicile.
4. The principle of the revival of domicile of origin refers to the situation where an individual who has acquired a domicile of choice later reverts back to their domicile of origin. This principle was upheld in the case of Cape Explosive Works Ltd v South African Oil & Fat Industries Ltd, where the court ruled that the domicile of origin can be revived if the individual's intentions change.
5.
a) Jason is domiciled in South Africa, as he considers it his home despite living in Angola.
b) Jason is resident in Angola but domiciled in South Africa. The difference between residence and domicile lies in the individual's permanent home and intentions to stay.
c) The court with jurisdiction over Jason and Sheree's divorce would typically be in Angola, as they have been living there.
d) The distribution of Sheree's property would typically be governed by Angolan laws, as that is where she was domiciled at the time of her death.
e) The 'lex domicilii matrimonii' principle refers to the law of the domicile of the marriage, which governs matrimonial property regimes. There is an ongoing constitutional debate surrounding this principle, particularly in cases where parties have different domiciles.
6. The two main forms of domicile in South Africa are domicile of origin and domicile of choice. Domicile of origin is typically acquired at birth and can be challenging to change, while domicile of choice is established through residence and intention. These two forms of domicile have different legal implications and requirements for establishment.