DOMICILE IN FAMILY LAW IN UGANDA
In the case of Robinah Erina Kagaya Kiyingi V Doctor Aggrey
Kiyingi.[1] The word domicile was defined as the country in which a person is
or presumed to be permanently resident the place of a person’s permanent home.
It depends on the physical fact of residence plus the intension of remaining.
The definition was defined according to the Osborn’s Concise Law dictionary.
Similarly, in the case of Whicker V Hume.[2]
In this case Lord Wensleydale said that domicile means habitation in a
place however with an intension of remaining unless something happens to change
the intension. A person can only have one domicile in a place that has a
separate legal system. In Robinah Erina Kagaya Kiyingi V Doctor Aggery
Kiyingi.[3] The court stated that a
person that is to say a British may be domiciled in England , Scotland or
Northern Ireland but can only be domiciled in one of them, this is because they
have different legal systems,
Domicile is different from nationality because a person can
have a domicile in a country but without the nationality. In the case of
Robinah Erina Kagaya Kiyingi V Doctor Aggery Kiyingi.[4] It was stated that domicile must not be
confused with nationality for the latter is rarely a relevant factor where
matters of family law are concerned. A person is a subject or national of a
sovereign state but he has his domicile in some area which has its own system
of law and courts. Furthermore, a person is not bound to be domiciled in the
state of which he is a national.
However there different types of domicile and they include
the following as stated below.
DOMICILE OF ORIGIN
Domicile of origin. In the case of Robinah Erina Kagaya
Kiyingi v Doctor Aggery Kiyingi[5] domicile of origin was said to be the
domicile that is acquired at birth. In the case of Udny v Udny[6] Lord Wels
bury said “that no man shall be without a domicile and to secure this result
the law attributes to every individual as soon as he or she is born the
domicile of his father, if the child is legitimate and domiciled of the mother
if the child is illegitimate.” Similarly section 6 of the succession Act Cap
162, states that, domicile of origin of a person of legitimate birth is in the
country in which at the time of his or her birth, his or father is domiciled or
if he or she is a posthumous child in the country in which his or her father
was domiciled at the time of the father’s death. Section 7 of the same Act
states that the domicile of origin of an illegitimate child is in the country
of in which at the time of his or her birth, his or her mother was domiciled.
However the domicile of origin can be replaced by another domicile for example
in the domicile of origin can be replaced by a domicile of choice or
dependency. However, there must be evidence to show that the domicile of origin
has changed hence the party has acquired another domicile. In the case of
Gordon v Gordon,[7] in this case the
petitioner filed for divorce, he was born in England in 1946 at 22 he came to
Tanganyika as a district officer appointed by the colonial office on permanent
terms. The petitioner then married an African woman who is the respondent and
together they had 6 children most of the petitioner’s assets were in Tanganyika
for example a building. He said that he had retained his domicile of origin and
that he acquired a domicile of choice in Tanganyika. The petitioner said that
if his employment was retained he would get another employment in Tanganyika
but if he does not get another employment in Tanganyika, he would go back to
England. The petitioner also said he had no intension of staying in Tanganyika,
he also meant to return to England. The
issues’ was whether the petitioner had acquired a domicile of choice or his
domicile in England was retained. The court held that although the petitioner
has been a resident in Tanganyika for 18 years and most of his interests in
Tanganyika, this fall short or even raising the presumption that he had
abandoned his domicile in England.
DOMICILE OF CHOICE
In the case of Robinah Erina Kagaya Aggery V Doctor Kiyingi
Aggery [8] The court stated that the domicile of choice may be acquired by a
person of full age by residing in a country other than his domicile origin with
the intension of remaining in that country permanently or indefinitely. This
intension is termed “animus mamedi” the court stated that the burden of proof
lies on the person asserting he has acquired a domicile of choice. Similarly in
the succession Act cap 162 section 9. It states that a man acquires a new
domicile by taking up fixed habitation in a country which is not that of his
origin except that man is not to be considered as having taken up habitation in
Uganda merely by reason of his residing there in the exercise of any profession
or calling
Where however the person abandons his or her domicile of
choice, his domicile of origin will revive and continue to govern his legal
position until he acquires a new domicile of choice. For example in the case of
Bell V Kennedy[9]. In this case, Mr. Bell was a Jamaican of born but of
Scottish parents, educated in Scotland he returned to Jamaica where he married.
However he left Jamaica and went to live with his mother-in-law while deciding
whether to live in Scotland, England or France. His wife died and the question
arose as to where he was domiciled. The House of Lords overruled that Court of
Session and decided that he returned to domicile of origin in Jamaica. The
domicile of choice is lost when both the residence and the intension necessary
for its acquisition are given up. In Relloyd Evans DECD National Provincial
Bank.[10] A testor born in Wales in 1864, whose parents were British subject
went to Java in 1880 and till 1917, he married a Dutch woman had 3 children he
settled in Brussels and bought a house and carried on business. The Germany
Army invaded Belgium and he was persuaded to leave the country, he went to
South France and escaped to England. In France he wrote that he was domiciled
in Belgium for the last 19 years but had no time to make his intended will, in
England he occupied 3 flats. The evidence showed that he was obliged and that
during his last years he made conflicting statement as regard’s his intension
as to residence after the war the court held that although it is less evidence
to establish abandonment of a domicile of choice that it had to establish it’s
acquisition in either both the intension and the act must be unequivocal. In
the United Kingdom persons above 16 years may acquire a domicile of choice and
in Uganda persons over the age of 18 may acquire domicile of choice in case he
or she does not have the capacity to form the necessary animus.
DEPENDENT DOMICILE
Dependant domicile is a domicile that is acquired by minors,
married women and mentally ill persons. In the succession Act cap 162 section
14; it states that by marriage a woman acquires the domicile of her husband if
she had not the same before. Section 15 states that subject sub section (2) the
domicile of a wife during the marriage follow the domicile of her husband.
Married women acquired the domicile of her husband and her
domicile would change with that of her husband even if they lived apart. Lord
Advocate v Jaffery.[11] In this case a husband and wife were domiciled in
Scotland. The husband contracted a bigamous marriage in Queensland with the
consent of the wife, while the wife remained in Scotland where she died
proceedings were brought in Scotland to determine the domicile of the wife. The
court of Appeal on the House of Lord held that the wife was domiciled in
Queensland even though she had never visited there.
However a wife can
lose the domicile of dependency if the husband dies. In the case of Scullaud
Decd Smith V Brock and other[12] in this
case Ethel Mary Scullaud the testatrix left her husband in 1908 and never lived
with him again. The husband had and English domicile which he retained until
his death on 4th February 1955. The wife lived in various places till the year
1946 or 1947 when she settled in Guernsey with the intension of residing there
until her death. The question was whether at the time of her death she was
domiciled in Guernsey. The court held that after the death of her husband, she
showed her continued intension to reside permanently in Guernsey, and she had a
domicile of choice in Guernsey at the date of her death.
The wife could also lose her dependent domicile through a
decree of divorce and not by an order of judicial separation. Section 15(2) of the
succession Act states that the domicile of a wife no longer follows that of her
husband if they separated by the sentence of a competent court. In the case of
AG for Alberta V Cook. [13] In this case a wife acquired a decree of judicial
separation where she lived; however she then presented a petition for divorce.
Her husband retained his domicile of origin in Ontario. On appeal to the Privy
Council, it was held that the Alberta court had no jurisdiction to hear the
divorce petition because jurisdiction was dependent on the domicile and the
woman remained domicile in Ontario. Lord Marrivol in the judgment of the Privy
Council explained the rational as being “…the contention that a wife judicially
separated from her husband is given choice of a new domicile is contrary to the
general principle on which the unity of the domicile of the married pair
depend.”
Minors also have a dependent domicile and it is acquired
upon birth a legitimate child acquired the domicile of its father while an
illegitimate child acquired the domicile of its mother. Under the section 13 of
the succession Act cap 162, it states that subject to subsection (2) the
domicile of a minor follows the domicile of the parent from whom the minor
derived his or her domicile of origin, section 16 of the same Act states that,
except as provided in section 13 (1) a person cannot during minority acquire a
new domicile. The dependent domicile of the minor, would change depending on
the domicile of the parent, for instance a legitimate child born to a father
domiciled in Italy would acquire a domicile of origin and dependency in Italy,
however in case the father would acquire a domicile of choice in France, the
child’s domicile would also change and acquire a domicile of dependence in
France.
In situations where the father of a legitimate child dies,
the domicile of the child will normally follow the domicile of the mother save
in situations where the mother decides to move to a new country. For example in
Re Beaumont.[14] A widow who was
domiciled in Scotland with her minor children, she decided to remarry and went
to England and lived there with her new spouses, she took all her children
except one whom she left to stay with an Aunt in Scotland. The court held that
the domicile of the other children was in England; however that of this one
child continued to be Scottish.
In the case of an adopted child in United Kingdom and in
Uganda, the child will be treated as he or she was the natural child of his
adopted parents, that is to say he or she will have the domicile of the parent,
the children Act cap 59 section 43(3) states that a foster parent is whose care
child is committed shall, while the child remain in his or her care, have the
same responsibilities in respect of the of the child’s maintenance as if he or
she were the parents of the child.
However in situation
where the minor marries, holds an office of employment with the government, set
up a business, the minor loses his domicile of dependency. Section 13(2) of the
succession Act 162 states that, the domicile of a minor does not change with
that of the minor’s parent if the minor is married or holds any office or
employment in the service government or has set with consent of the parent in
any district business.
Mentally incorrect or mental disorder people have a domicile
of dependence and this is because they lack the legal capacity to form the
requisite intension of remaining in a country permanently or indefinitely, they
cannot acquire a domicile of choice. Urguhart Vs Butterfield.[15] In this case it was stated that if an
independent person becomes insane, he becomes incapable of acquiring a domicile
of choice because he is unable to exercise any will. Section 17 of the
succession Act cap 162, it states that an insane person cannot acquire a new
domicile in any other way than by his or her domicile following the domicile of
another person retain the domicile he had before he became insane that is to
say he or she is of a majority age and his domicile cannot be changed by him.
However, if he or she is of a minority age, the domicile depends on the
alternative of the domicile of the parent upon where he or she attains
majority.
Merits of dependency
domicile
In case of a legitimate child whose parents later divorce
and the father does not provide for the child the child’s domicile will become
that of the mother. For instance in the case of Hope V Hope[16] in this case
Lord MacDermott L.C.J said “that the father’s domicile control must be based on
the authority and responsibility that a father has to act for his child … in
this case the mother had divorced from the father and the father was being
irresponsible.
Dependency domicile simplifies the question of private
international law it provides a relatively simple and more way of ascertaining
solutions in most cases thus spouses and their legal advisers should be able to
determine their position with some confidence. Aslanidis v Aslanidis.[17] This
case wife petitioned on the respondents domicile in Uganda it was proved the he
came to East Africa with a Greek domicile of origin but born in Egypt. He move
from Kenya to Uganda in 1957 and continued to live in Uganda since he was a
sales proprietor of a business in Uganda. The respondent also testified that he
intended to stay in Uganda indefinitely. The respondent however left the wife
and decided to reside with another lady and child. It was held that he was
domiciled in Uganda. He had acquired a domicile of choice in Uganda.
Dependant domicile enables children without parents acquire
a sense of belonging; acquire homes and the love of parents. The adopted minors
will have the domicile of his or her foster parent this is because they are to
treat the child as if they were the parents of the child and it is the duty of
the foster parent to care of the minor. Section 43(3) of the children Act cap
59 states that a foster parent is whose care a child is committed shall, while
the child remains in his or her care have the same responsibilities in respect
of the child’s maintenance as if he or she were the parent of the child.
It also enable the foster children to have right to inherit
property, in the children Act cap 59, section 52(1) it states that where an
adopter dies intestates, his or her property shall devolve in all respect as if
the adopted child were the natural child of the adopter
The domicile of dependency creates unity between the parties
for instance in the case of married people since the wife’s domicile is
dependant to the husbands domicile. This rule was based on the principle of the
unity of husband and wife, the rule was supported by a clear authority in the
case of Lord Advocate V Jaffery.[18] Similarly
in the case AG of Alberta v Cook[19]. Lord Merrivale said “the contention that
a wife judicially separated from her husband is given choice of a new domicile
is contrary to the general principle on which the unity of the domicile of the
married pair depends”
Dependency domicile helps or enable in determining of the
mutual rights and obligations of husbands and wife, parent and child varying
from country to country
However the law of domicile has demerit and these include
the following.
The wife is deemed to be domiciled in the country of her
husband whether she has not been there, even though she does not have a
connection in the husbands country of domicile, hence the view that dependence
domicile creates unity is as artificial one because it may bear no relation to
the actual circumstances of the spouse. In the case of Lord Advocate V
Jaffrey.[20] In this case the husband was in Queensland and the wife was in
Scotland, she had never been in Queensland. The court of appeal on the House of
Lords held that the wife was domiciled in Queens land even though she has never
been there.
In case of divorce, it can only be granted in the country
where both the parties are domiciled but cannot be granted independently, for
instance if a wife wants to file a petition for a divorce to dissolve her
marriage, she can only file the petition in the country of her dependency
domicile. Section 2(a) of the divorce Act states that the making of any decree
of dissolution of marriage unless the petitioner is domiciled in Uganda at the
time when the petition is presented. For example in the case Joy Kiggundu v
Horace Awori .[21] in this case the petitioner filed a decree dissolving her
marriage to the respondent in the high court of Uganda at Kampala, the respondent
was domiciled in Kenya and lived in Nairobi Kenya where at the time the couple
got 3 issues of the marriage being the husband committed adultery with named
women, the respondent has been cruel to the petitioner in various ways and by
reason of which the petitioner suffered ill health both in mind and body. The
court held that, the petitioner is domiciled in Kenya; the court therefore has
no jurisdiction to entertain the petition she chose to file in this court. The
petition is dismissed.
The concept of domicile of dependency may offend Article
33(1) of the constitution of Uganda which states that women shall be accorded
full and equal dignity of the person with men, hence in that, it discriminates
invidiously between persons. Dependency domicile may be said to involve a
question of status rather than that of person rights.
In case a person whose domicile is not in Uganda marries in
Uganda a person whose domicile is in Uganda none of the parties acquire the
property of the other unless it is agreed in a settlement hence for instance if
a women whose domicile is not in Uganda marries a man whose domicile is in
Uganda her domicile will be Ugandan. Section 34 of the succession Act Cap 162
state that if a person whose domicile is not in Uganda marries in Uganda a
person whose domicile is in Uganda, neither party acquires by the marriage any
right in respect of any other party not compromised in a settlement made
previous to the marriage, which he or she would not acquire by the marriage if
both were domiciled in Uganda at the time of the marriage.
The capacity of the wife to make a will and the devolution
of her personal property on her death may be governed by a system laws of a
country she has no connection. For example in the case Lord Advocate V Jaffrey[22]
in this case the husband was in Queensland and the wife was in Scotland were
she died proceeding were brought in Scotland. The court held that even though
she had never been in Queensland, her domicile of dependency was there.
In conclusion, the law of the domicile of dependency in
Uganda has led to the discrimination of many women thus degrading the dignity
of the women depriving them the right to choice yet we are equal according to
Article 33(1) of the constitution of the republic of Uganda and with the women
emancipated today, this law ought to be changed. The law is more complicated.
However dependency domicile is advantageous in a way that it has made legal
matters between the persons easy that is to say there is no need to use 2
different laws of different countries to handle matters and it has provided a
sense of Identification mostly children and lunatics. Therefore even though it
has some merits, the demerits are of a large extent mostly to the women because
it deprives them the right of choice in this matter the right of them to
acquire another domicile of choice instead their domicile is dependent to their
husbands and changes when the domicile of the husband changes. However in the United Kingdom, the domicile
of dependency of a married woman was abolished because this rule reflected
social conditions and attitudes, it was abolished by s1 (1) of the Domicile and
Matrimonial Proceedings Act 1973. Section 1(1) of the Act stated that, the Act
is retrospective in the sense that it applies to women married before as well
as after January 1, 1974. Hence a transitional provision was needed. Section 1
(2) provides that where immediately before that date a woman was married and
then had her husband’s domicile by dependence, she is to be treated as retaining
that domicile as a domicile of choice, if is not also her domicile of origin.
In the case of IRC V Duchess of Portland[23] in this case the wife lived had a
domicile of origin in Quebec married a husband domiciled in England, the issue
was whether her domicile was in England. It was held that the effect of s1 (2)
was that she retained her domicile of dependency as a domicile of choice.
BIBLIOGRAPHY
STATUES
1. THE CHILDREN
ACT CAP 59
2. THE SUCCESSION
ACT CAP 162
3. THE
CONSTITUTION OF THE REPUBLIC OF UGANDA 1995
4. The divorce
Act cap 215
TEXT BOOKS
1. O’Brien John
Smith’s, Conflict of Law.2nd edition Cavendish publishing Limited London 1999
2. Collier J.G.
The conflict of laws 3rd edition Cambridge University press 2001
3. Mclean and
Beerers, Kisch. The conflict of laws 6th edition publisher, Sweet and Maxwell
limited of 100 Avenue Road, London NW 33PF2005
4. Barker David
and Padfied, Collin Law Cataloguing in publication Data 1998 10th edition
INTERNET
Law reform/publication.com 8th June 2009
[1] High court civil
Appeal No. 41 of 2004
[2] (1843-60) ALLER
[3] supra
[4] supra
[5] supra
[6] (1896) L.R I S C DIV 44 at Page 457
[7] (1965) EA 87
[8] High court Appeal No 41 of 2004
[9] (1868) LR 1 Sc & Div 307
[10] (1947) Ch 545
[11] (1921) 1 AC 146
[12] [1957] 1 Ch 107
[13] (1926) AC 444
[14] [1893] Ch 490
[15] [1887] 37 Ch 337
[16] (1969) 20 N.i.L.Q 304
[17]
[18] [1921] AC 146
[19] [1926] ac 444
[20] [1921] AC 146
[21] High court of
Uganda at Kampala Divorce cause No 8 of 1998
[22] [1921] Ac 146
[23] [1982] Ch 314
