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Law of Persons 2011Lecture 8: Status and capacity, Introduction to

domicile

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Agenda

Status and Capacity Meaning

Factors

Forms

Domicile

Meaning and significance of domicile

General principles of domicile

Types of domicile in terms of

Common law

Domicile Act

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Status

Status refers to the capacities allocated toeach person by the objective law.

Ones status is determined by the existenceand extent of these capacities.

Several factors affect these capacities:

Domicile (see topic 6)

Children of unmarried parents (see topic 7:

Marital and Extramarital birth) Age (see topic 8)

Mental Incapacity and Prodigality (see topic9)

Sex (see topic 10)

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Forms of Capacity

1. Legal Capacity

2. Capacity to Act

3. Capacity to Litigate

4. Accountability

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Summary

A persons status is the aggregate of

his/her capacities; and alsodetermines

his/her capacities. Status depends upon all of a persons

attributes or the condition

in which s/he finds himself; and to which the law attaches consequences.

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Meaning and significance of

domicile From Latin:domicilium,meaning home or dwelling place.

Significance?

Example:

A South African woman lives in New York.

She wants to draft a will.

Which legal system will determine her status? South Africas or the

USs?

Domicile provides the connecting factorbetween the

individual and the applicable legal system in determining

the status of a person. Exceptions?

Domicile is the place at which a person is legally deemed

to be constantly present for the purposes of exercising

rights and duties.

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Private-law issues affected by

domicile:

Matrimonial property regime: Frankels Estate

Succession (intestate and testate

succession): Estate Baker v Estate Baker(intestate

succession)

Litigation (procedural law): Ex Parte Kaiser

S2(1)(b) Divorce Act

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General principles

1. Tenacity s 2(1) of the Domicile Act:

No-one will lose his domicile until he acquires

another one.

2. Exclusivity Person can only have one domicile at a time.

The doctrine of revival has been rejected(Grindal).

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Domicile in terms of the common

law

1. Domicile of origin (domicilium originis): A persons domicilium originis is assigned to his by

law at birth.

In terms of the common law, the doctrine ofrevival applies.

According, however, to the Domicile Act (whichtrumps), it does not.

2. Domicile of dependence: Wives acquire their husbands domiciles.

A minor will follow the domicile of its guardians.

The Domicile Act, though, changes this

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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 persons sex or maritalstatus.

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Domicile Act s1(2)Reqts for

domicile of choice:

A domicile of choice shall be acquired by aperson when

he is lawfully present at a particular place; and

he has the intention to settle there for an indefiniteperiod of time.

The following requirements, therefore, are pivotal:1. lawfulness;

2. presence (factum)

3. intention to settle (animus manendi).

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