The concept of domicile is one that is somewhat illusive and yet carries serious legal consequences. In South Africa, your private legal status is determined by the laws of the country or place in which you are domiciled, but what does the term actually mean? Domicile is derived from the Latin term domicilium which in turn is derived from domum colere which means to inhabit the home. Your domicile is thus your place of habitual and physical residence where, for legal purposes, you are presumed to be present and where you have shown intention to be present indefinitely. This might not necessarily be where you currently live, which makes things complicated.
Say for example, Thuli is from Cape Town where she grew up all her life but has recently moved to Pretoria for university. Even though she will ordinarily reside in Pretoria for the next four years, her residence there is temporary, and so it is not her domicile. Her domicile will remain in Cape Town, at her parents’ house. If Thuli then accepts a job offer in Johannesburg following graduation and moves there to begin her career, her domicile still would not change. This is because a place is not considered one’s permanent residence if the sole reason they are there is for work, no matter the length of stay. If Thuli wanted to change her domicile from Cape Town (her domicile of origin) to Johannesburg (her new domicile of choice) she would have to indicate such a desire to permanently and indefinitely relocate herself and conduct her affairs in Johannesburg.
How does one indicate a change in domicile?
There is no prescribed manner of indicating that you wish to change your domicile. Rather, the assessment of whether one’s domicile has changed is done by looking at whether a person’s actions indicate a wish to be permanently associated with a new country or province or place that is different to their prior one. Such actions might include acquiring property and treating, calling and residing in it as your permanent home, changing your voting district, cancelling memberships and closing accounts in one place and opening them in another, taking out loans and obtaining licences in a new jurisdiction, and other actions that would help one to “establish roots” in a new place. Essentially, it would be the place you come back to even if you were to temporarily work or travel somewhere else.
In what ways is your domicile of legal importance?
Domicile is concerned with legal status, and as such one can never be without domicile. Equally, one cannot be domiciled in two places at the same time. Your domicile of origin is your domicile from birth up until such a time (having turned 18) that you indicate a new domicile of choice, if you choose to do so. Your domicile of choice can also change to a new one if you so decide. However, if one were say to abandon their domicile of choice but not show any signs of choosing a new one, then their domicile would revert to that of origin. But why is all of this important?
Your domicile determines many aspects of your life. It determines where you vote, pay taxes, and in general where you heed governmental authority. It also determines where you can legally claim state provided benefits such as healthcare, unemployment assistance, and education for your children. Additionally, domicile is important in establishing jurisdiction of the courts. For example, in divorce matters, the division of the high court which has jurisdiction (that is, the authority to grant your divorce) is that of the domicile of one or both of the parties. Further, when instituting civil action against you, a litigant would do so in the division of the high court assigned to your domicile.
A final example of the legal importance and effect of domicile is that of service. When you complete forms for insurance, medical aid, or even a gym membership or store account, you are often asked to indicate your domicile or permanent residence. The purpose of this is for sending you correspondence, including legal correspondence. Should you default on a payment and the company sends statements of account and final notices to your indicated domicile, it is legally considered that you have received them. Should they then institute proceedings and serve you with summons at your domicile it is legally considered that you have received the summons and failure to then appear in court could result in a default judgment against you. So it is of the utmost importance that you indicate your true domicile or permanent residence when so asked and ensure that it is an address where you can always be reached. Thus, if you are entering into something like a timeshare contract, it would be ill-advised to use the address of the timeshare as your domicile as it factually is not, and it can have grave legal consequences.
Key Take-aways
So what have we learnt from the above?
- Your domicile determines your private legal status, and is the place at which you are habitually and physically present.
- Everyone has a domicile; either by origin or by choice.
- Domicile is not the same thing as residence, which may be temporary. It is a place of permanent residence for an indefinite period of time.
- It is important to always correctly indicate your true domicile when asked to do so to avoid serious legal consequences.
If you have any queries about your domicile and its impact on any of your dealings past, present, and future, do not hesitate to contact your consumer lawyers at admin@broekmann.co.za or +27 21 422 0269.
By Grace Moyo