'Persons 9'.ppt

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Law of Persons 2011Lecture 9: Domicile & Introduction to status of

children born of unmarried parents



Agenda

• Domicile – Meaning and significance of domicile

– General principles of domicile

– Types of domicile in terms of

• Common law• Domicile Act

– Domicile by operation of the law:

• Children

• Mentally incapacitated persons

– Application in various contexts

• Introduction to topic 7: Status of children

born of unmarried parents



Domicile in terms of the common

law

1. Domicile of origin (domicilium originis):• Domicilium originis is assigned to person by

law at birth.• The common law validates the doctrine of

revival. In terms of the Domicile Act, however,it is no longer applicable.

2. Domicile of dependence:

– The wife acquires her husband’s domicile. – A minor follows the domicile of its parents or guardians.

– NB: The Domicile Act changes this…



Domicile Act – s1(1)

1. Domicile of choice • Every person who is of or over the age of 18

years, and every person under the age of 18years who by law has the status of a major,

excluding any person who does not have themental capacity to make a rational choice, shallbe competent to acquire a domicile of choice,regardless of such a person’s sex or marital

status.



Domicile Act – s1(2) – Req’ts for

domicile of choice:

• A domicile of choice will be acquired by aperson when

– he is lawfully present at a particular place; and

– he has the intention to settle there for anindefinite period.

• NB:

1. lawful2. present (factum) (Erskine)

3. intention to settle (animus manendi ) (Eilonminority decision)



Domicile by operation of law

• s 2(1) of the Domicile Act: – If you don’t have the capacity to acquire a

domicile of choice, your domicile will be the placeto which you are most closely connected.

• Minors (s2(2)): – There is a rebuttable presumption that a minor’s

domicile is with its parents.

• Mentally incapacitated people (s2(1)): – The domicile of persons who are mentally

incapacitated will be the place to which they aremost closely connected.



Application to various contexts…

• Military staff, diplomats, public servants,

employees and officers of foreign

governments or businesses?• Prisoners?

• Illegal immigrants?



Children of unmarried biological

parents; or, ‘Extramarital birth.’ • Pre-Children’s Act:

– Such children were known variously as• “extramarital”

• “illegitimate”

• “born out of wedlock”

• “buite-egtelike” • “Bastaarden”

• Post-Children’s Act:• “a child of unmarried parents”

• Categories of extramarital children: – See Grotius Inleiding 1.12.5 & 1.12.6.

– See also Van Leeuwen RHR 1.7.3, 4.

– There are three categories of children of unmarried parents:1. natural children (spurii or liberi naturales);

2. adulterine children (adulterini ); and3. incestuous children (incestuosi ).

'Persons 9'.ppt

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