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Law of Persons 2011

Lecture 9: Domicile & Introduction to status of children born of unmarried parents

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 In terms of the Domicile Act, however, it is no longer applicable.
The wife acquires her husbands domicile. A minor follows the domicile of its parents or guardians. NB: The Domicile Act changes this

2. Domicile of dependence:

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 18 years who by law has the status of a major, excluding any person who does not have the mental capacity to make a rational choice, shall be competent to acquire a domicile of choice, regardless of such a persons sex or marital status.

Domicile Act s1(2) Reqts for domicile of choice:

A domicile of choice will be acquired by a person when
he is lawfully present at a particular place; and he has the intention to settle there for an indefinite period. NB:
1. lawful 2. present (factum) (Erskine) 3. intention to settle (animus manendi) (Eilon minority decision)

Domicile by operation of law s 2(1) of the Domicile Act:

If you dont have the capacity to acquire a domicile of choice, your domicile will be the place to which you are most closely connected.

Minors (s2(2)):
There is a rebuttable presumption that a minors 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 are most 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-Childrens Act:

Such children were known variously as

extramarital illegitimate born out of wedlock buite-egtelike Bastaarden
a child of unmarried parents 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. 2. 3. natural children (spurii or liberi naturales); adulterine children (adulterini); and incestuous children (incestuosi).

Post-Childrens Act:

Categories of extramarital children: