The South African Domicile Act
The South African Domicile Act
The South African Domicile ActThe Domicile Act No.3 of 1992 came into effect on the 1st of August 1992. It contains a few provisions that sovled a lot of disputes that arosein the past.
What does "domicile" mean?
To be domiciled in a specific location means to have a place ofpermanent legalresidencyfor thepurpose ofjudicialjurisdiction and the choice of law.
For example: If you are domiciled in Cape Town, but you are currently on vacation in Durban, you will still be domiciled in Cape Town. The reason for this being that your intensions for your holiday stay is non-permanent.
A 3(1) of the Domicile Act states that one cannot lose one's domicile beforeacquiring a new place ofdomicile.When one chooses to change their place of domicile, it should never just be accepted and must therefore always be proven. (Smith v.Smith,1952 (4) S.A. 750 (0)).
Types of domicile
In South Africa there are 3 types of domicile. They are: domicile of origin; domicile of choice and domicile by operation of law.
Domicile of origin
Every person in South Africaacquiresdomicileof origin at birth. A person loses their domicile of origin as soon as theyacquirea domicile of choice (a 3(1)). Note: One must comply with the requirements listed below before one may aquire a domicile of choice.
Domicile of choice
There are two requirements regarding domicile of choice:
The firstrequirement stipulates that a person must have thenecessarylegal capacity. This means that one must be an adult (the age of 18 in South Africa) or a minor who posess the status of an adult. This requirement is independent ofsuch a person's sex or marital status. (a 1(1))
The second requiremnt states that: "A domicile of choice shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period." (a 1(2)).Thus, domicile of choice must be an act of free will.
Domicile by operation of law
Some people may be incable of aquiring a domicile of choice (for example: a minor or someone who lacks mental capacity). In this case, that person wil be domiciled at the place he/she is closest connected to. (a 2(1))
If a child lives with his/her parents or at least one of them, it will be presumed that the home of the parent/s is the domicile of the child until proven otherwise. (a 2 (2))
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