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  • Subject Name : Law

Introduction

The Domicile Act 1976 is one the best examples of the laws that are generally regarded as the “Lawyer’s Law” as described by Dr. Finlay. The Act primarily to resolve conflict in the interest of law that’s why it lawyers has a major stake or interest in this law. [1] In New Zealand, it has a major factor for deciding jurisdiction for the purpose of matters connected with divorce, succession, and taxation. Majorly, the family law litigation revolves around the jurisdiction which is decided on the basis of the domicile. The rules relating to domicile are generally rigid. One of the most rigid legislative pieces of governance in New Zealand is the Domicile Act 1976. The legislation is prepared by after due consideration of various countries laws such as United Kingdom’s Domicile, Matrimonial Proceedings Act, 1973 and in consultation with various Australian law ministers. In 1970, the Standing Committee of Federal and State Attorneys received a report from an Australian body highlighting various reforms needed in the Domicile Act 1976. Subsequently, in 1974 the New Zealand ministers agreed to the report or to the reforms highlighted in the report to be introduced in the law of Domicile. [2]The reforms mainly consist of the abolition of the status of domicile of the married women as to be decided on the dependent basis and change in the status of domicile of the minors. The bill or the reforms was subsequently introduced by the National government and came into force on such date as decided by the Governor-General of the Council. [3] Section 3 and 4 of the current act are given the retrospective effect. Section 3 of the Act states that the domicile of the person immediately before the commencement of this Act will remains same as if the Act was never enforced. Section 4 of the act states that the domicile of the person at the time of passing the act will be same as if the act has been passed. Many provisions of the various others act were also repealed or amended after the due passage of this act such as the Matrimonial Proceedings Act 1963, Domestic Proceedings Act 1968, and Administration Act 1969. [4]

Reforms in the Domicile Act 1976

Domicile is different from permanent habitant of the person. The domicile is decided on the basis of birth, origin and choice. Generally, the doctrine of Lex Domicilli governs all the laws for deciding the Domicile. The principle of Domicile includes the origin of the person, choice of the person, and the dependency of the person. For example, in the case of Udny v. Udny, the Udny’s domicile was decided on the basis of his origin. Court in this case held that even if one person has left a particular country, he still holds his domicile, if he has the intention to withdraw from the domicile of a particular country; he by the principle of choice can do so. [5]The Domicile Act was present in the Parliament on the International Women’s Day in 1975 which depicts that the bill aim to reform the common law principle of the domicile of the married women dependent upon his husband. So, the major reforms that the act brought was to grant the women who wish to have their own status of domicile. The second reform which the Act brings was in relation to children. This reform was brought because the Section 6 of the act has a lot of the uncertainties. Such as in case of the divorce of the parents of the children, there was conflict of the interest whether the children will still have the domicile of his father or his domicile will change. Therefore, the change in the act and subsequently the section 7 of the act states that the till the age of 16, a child will have the domicile of the father, if her parents are living together and after the age of 16, the children can opt the domicile of his choice. In case the parents of the child are separated, the children will have the domicile of the parent with whom he is living. Therefore, it was much clear that in case of a de facto relationship of the parents, the children will have the domicile of his father. With respect to the Divorce and Matrimonial Causes Amendment Act, 1953 , the section 12(3) and sec 9(2) was repealed and a new subsection 4 was added with respect to the domicile of the wife which reads as under:

“(4) Where a wife who is living apart from her husband is living in New Zealand and has been living there for three years at least, and has such intention of residing permanently in New Zealand as would constitute a New Zealand domicile in the case of an unmarried woman, she shall be deemed for the purposes of this Act to be domiciled in New Zealand and to have been domiciled there for two years at least, notwithstanding that her husband is not domiciled in New Zealand.” [6]

Another change or amendment was done in the Guardianship Act 1968, the section 5(1) of the Domicile Act possess an effect on the section 22 of the Guardianship Act. Section 22 of the Guardianship act states that if a minor is married, he or she will acquire the status of the domicile as if he was an adult and then married. The section 5(1) of the Act states that every married person male or female, minor or adult will have an independent domicile. [7]

Another major reform was done in Adoption Act, with respect to section 16(2)(f) and (g). Section 14(2) of the act repealed the above mentioned proviso; it stated that even in the case of adoptive parents, the children till the age of the 3 years will have the domicile of the origin father. Another major aspect of the doctrine of the revival was repealed by the enactment of the s.11 of the Domicile Act. Doctrine of revival was based on the fact that if a person has absconded his origin domicile, and taken domicile of another country can revive his origin domicile by absconding the latter domicile. [8]

Therefore, the current regime of domicile faces various challenges in the private International Law that needs to be reform. One of the major reforms that is highlighted above is the abolition of Doctrine of Revival. The Current Domicile Act is a bit complex and hard to be put in practice. The Domicile Act which is formed based on the concept of domicile of common law leads to various matrimonial jurisdictional uncertainties. Moreover, as to guide to the law commission, the present domicile act will not apply to the Ti-kianga-Maori because there are various cultural differences. However, the law commission can opt for a easy, residence-based domicile system, and a more flexible approach to domicile to survive in Private International Law. [9]

Common Law Concept of Domicile:

Many countries follow the common law concept of domicile especially, the common law countries. The common law concept of domicile is used to determine the jurisdiction of a person rather than his residence. The key aspects of the common law concept of domicile are permanent residence, intention of the person to set up permanent residence, change in domicile abandonment of the pervious domicile, origin of the person, choice to opt for a particular domicile and many more. This concept of common law domicile possesses a great impact on the person and policies or laws relating to jurisdiction, taxation, and inheritance or succession. Domicile is sometimes regarded as a connecting factor between the individuals. Domicile is sometimes misinterpreted in terms of the situation of the house of a person. However, it is a settled law that no one can be without domicile even if he does not have a permanent house. There is no uniform law of domicile. It is mainly interpreted according to the concept of Lex Fori. [10] The common law concept of domicile is derived from the concept of domicile as described in Roman law. The word Domicile is derived from a latin word known as “Domun colere” which means to inhabit or foster. Generally, the concept of domicile is misconnected with permanent residence of a person. However, Lord Cranworth in Whicker v. Hume[11] has defined "By 'domicile' we mean home, the permanent home, and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it. I think the best I have heard is one which describes the home as the place 'unde non sit discessurus si nihal avocet; unde cum profectus est, peregrinari videtur.' I think that it is the best illustration, and I use that word rather than definition, to describe what I mean." This means that the domicile is the place from where the person has no intention to relocate. However, this traditional concept has faced a lot of criticism, especially because of the reason that there is no uniform law of domicile, people can change the domicile according to their choice, and difficult in proving the intention of a person to permanently reside at one place. All these factors were highlighted by the report of the Private international law committee in 1954. The comman law concept of domicile or the law of domicile as followed in England has laid down a great emphasis on the matrimonial status of a person. Such as in Matrimonial causes Act, 1857 and the court of Probate Act, 1857 has stated that the marriage is recognized from the aspect where the men reside or has a dwelling or habitation. [12] As per the current rule the person by origin acquires the domicile of his father; if he is a legitimate child and after the age of 16 can choose the domicile according to his choice. Even married before 1954 acquired the domicile of his husband. The another concept of domicile by choice states that a person must be physically presence and must be having a firm intention to remain in that particular place only.

Te Maori customary Laws and the concept of domicile.

It's crucial to keep in mind that "te Maori" refers to New Zealand's indigenous population. The legal system of New Zealand, which upholds the ideals of equality, non-discrimination, and acknowledgment of the Treaty of Waitangi, a historic pact between the British Crown and Mori leaders, governs the status and rights of Mori people. The rights and interests of Mori are specifically addressed by laws and regulations in New Zealand, particularly in areas like land ownership, resource management, cultural preservation, and language preservation. Within the framework of the New Zealand legal system, these statutes seek to safeguard and advance the cultural and legal rights of Mori. Typically, domicile contains three essential components:[13]

  1. Everyone is born with a domicile of origin, which is often passed down from their parents. This is often the nation where a person's parents were residing at the time of their birth.
  2. Domicile of Choice: A person's domicile can be changed by moving in and making a commitment to make the new place their permanent abode. This frequently entails being present physically as well as having the intention to stay forever.
  3. Dependency-Related Domicile: If a person is deemed to be reliant on a family member or spouse, their domicile may occasionally be linked to that person's.[14]

However, this concept of domicile can intersect with the customary laws of Te Maori Tribe in no. of ways some of them are:

  1. Historically, Mori life has been regulated by a number of different conventions, practises, and protocols, including land ownership and resource management. Many Mori communities have their own rangatiratanga (authority) over their lands and resources as well as their own tikanga (customary practises).
  2. The Treaty of Waitangi is a key document in the legal and constitutional framework of New Zealand. It establishes a partnership between Mori and the Crown and acknowledges the rights and interests of Mori. The concept of residence is not directly addressed in the treaty, but it has been raised in court proceedings to support Mori claims to rights and interests in land and resources.
  3. The connection between domicile and Mori customary law can be complicated because it frequently entails balancing the rights of Mori as New Zealand citizens with their individual rights and legal standing within their communities. Striking a balance between individual and group interests is the goal of the legal system's acceptance of Mori customary law and land rights.[15]
  4. The New Zealand Mori Land Court is a key player in resolving matters pertaining to Mori land, such as land ownership, inheritance, and land usage. When deciding the rights of individuals or organisations within a Mori community, the court may take into account elements including ancestry, customary rights, and whakapapa (genealogy) in disputes concerning Mori property.
  5. Unlike communities or iwi (tribes), individuals are normally considered to have a domicile. However, collective ownership by iwi, hap (sub-tribes), or whnau (family) is a common aspect of Mori land ownership. In this situation, a person's residence within a Mori community may be important in terms of their rights and obligations within that community.
  6. Fisheries and forests are two examples of the natural resources that Mori tribes frequently have a keen interest in managing sustainably. The difficulties of Mori involvement in resource management and related legal issues may not be properly taken into consideration by domicile law.[16]
  7. It might be difficult to settle disagreements over Mori land rights and domicile. It frequently requires legal skill in both Mori customary law and New Zealand's legal system since it may involve juggling individual rights and the group interests of iwi.
  8. The ancestral grounds of the Mori people are deeply connected to their culture and spirituality. The importance of this link in legal processes, such as disagreements over who owns the land, may not be appropriately addressed by domicile law.[17]

It is important to carefully strike a balance between individual legal principles and collective rights in order to recognise and defend the rights and interests of the Mori tribes (iwi) within the parameters of New Zealand domicile law. In order to overcome this issue, the following adjustments or ideas might be taken into account:

  1. Domicile law could be changed to clearly recognise the importance of Mori cultural elements, such as whakapapa (genealogy) and tikanga (customary practises), in defining a person's domicile for Mori tribal members. This would include accepting that a person's relationship to their iwi and ancestral land is an important component of their place of residence.
  2. The legislation could be changed to more clearly reflect the collective land rights of the Mori tribes. This could entail developing legal frameworks that respect individual domicile while recognising and protecting the communal ownership and management of land by iwi, hap, and whnau.
  3. Given the pact of Waitangi's fundamental significance, domicile laws might directly mention the pact and its tenets. This could entail acknowledging the alliance between Mori and the Crown and the necessity of upholding the treaty's obligations in terms of domicile.
  4. Legal actions involving Mori land rights should be conducted with the assistance of experts in Mori customary law and culture to help ensure fair and well-informed outcomes. This can entail setting up expert panels or offering legal professionals training.
  5. It might be possible to handle concerns about domicile and land rights in a way that is more culturally sensitive by creating alternative conflict resolution methods that are in line with Mori values and tikanga. These procedures can supplement or operate concurrently with current legal procedures.[18]
  6. A more inclusive and knowledgeable legal system can be achieved through fostering public and professional awareness of Mori culture, history, and legal rights.
  7. It is crucial to involve Mori communities in the creation of domicile legislation and related regulations. This guarantees that their opinions and requirements are taken into account, and that any modifications are implemented after consulting with iwi representatives.
  8. To make sure that it continues to be sensitive to the changing interests and rights of Mori tribes, domicile law should be reviewed on a regular basis. If necessary, changes can be made to better conform to the ideals of justice and equity.
  9. New Zealand could be inspired by international frameworks, like the United Nations Declaration on the Rights of Indigenous Peoples, that recognise and protect the rights of Indigenous peoples, and incorporate pertinent principles into its legal system.
  10. The review offers the chance to consider how the notion of residency in the law might be modified or expanded to better include tikanga Mori into New Zealand's legal system. This could entail taking Mori customary law and values into account when making legal decisions under private international law.
  11. To acquire information, viewpoints, and suggestions that can guide the review process, interaction with Mori communities and legal professionals is crucial. It is essential to engage in meaningful consultation with tangata whenua in order to create a legal system that reflects their needs and goals. Particularly when land rights and customary practises are at stake, the assessment should aim to establish a balance between individual legal concepts, like domicile, and group rights and interests.
  12. In order to bring New Zealand's legal system in line with international norms, it may be helpful to take into account international frameworks for Indigenous rights, such as the United Nations Declaration on the Rights of Indigenous Peoples. As a result of the assessment, proposals for legislative changes or the creation of new legal standards and principles that more accurately reflect the circumstances of modern New Zealand and the rights of its Indigenous population may be made.[19]

Conclusion:

In conclusion, the English common law principle of domicile is currently being critically examined in Aotearoa New Zealand, especially in relation to how it applies to the tangata whenua, the indigenous Mori community. Given the cultural diversity of contemporary New Zealand and the need to properly incorporate tikanga Mori into the legal system, the legitimacy of residence as a basis for jurisdiction and a tying element in private international law disputes is being called into question.

Alternative Models/Concepts' Advantages

  1. Tikanga-Based Models: Introducing tikanga Mori into the legal system presents a culturally appropriate substitute, notably in issues pertaining to jurisdiction and private international law. The Mori interests would be more fairly represented under this paradigm, which would respect Mori traditional law and values.
  2. Shifting the emphasis from domicile to physical presence or territoriality could provide a more inclusive approach. By putting a person's location in line with their legal jurisdiction rather than their domicile, such models may help to lessen conflicts of interest.
  3. Models for the Choice of Law: Considering the parties' choice of law agreements in legal cases, rather than depending merely on domicile, allows for more flexibility and more properly reflects the parties' wishes. In contractual partnerships, this method respects the autonomy of the parties.
  4. Cultural Competency Training: As an alternative to or in addition to statutory reforms, funding cultural competency training for judges and legal practitioners can support ensuring that existing legal concepts, such as residence, are applied in a sensitive manner to different cultural backgrounds.

Statutory Reform Proposals:

Draft Statutory Provisions:

Section 1: Recognition of Tikanga Māori in Private International Law Matters

  • In appreciation of the cultural values and customary practises of the tangata whenua, the Court shall evaluate and adopt tikanga Mori where relevant and appropriate in any issue relating to private international law.

Section 2: Territoriality-Based Jurisdiction

2.1. Jurisdiction is established based on physical presence or territoriality within the jurisdiction, in addition to other pertinent circumstances, in matters involving people or companies with connections to Aotearoa New Zealand.

Section 3: Agreements on the Applicable Law

3.1. As long as the decision is made in a clear, informed, and mutually agreeable manner, the parties to a legal issue are free to pick the law that will regulate their contractual interactions.

Section 4: Instruction on Cultural Competence

4.1. To ensure an awareness and appreciation of tikanga Mori and Mori cultural values in the legal environment, legal professionals, including attorneys, judges, and court workers, must complete required cultural competency training.

As a starting point for conversations and prospective legal reform, these draft provisions aim to address the issues raised by the notion of residence in Aotearoa New Zealand. The goal is to develop legislation that represents the nation's cultural variety, upholds tangata whenua rights, and assures more equal and culturally aware implementation.

[1] P.R.H. Webb, ‘The New Zealand Domicile Act 1976’ ICLQ 26(1) (Jan, 1977) https://www.jstor.org/stable/758910

[2] This information is to be gleaned from the explanatory note to the Bill. See also 1975 New Zealand Hansard, pp. 3123-3124. It is interesting to note from p. 3124 that the only member (other than the then Minister of Justice, Dr. A. M. Finlay), who spoke to the Bill when it was introduced, thought that the Bill would interfere with the qualification to vote.

[3] Domicile Act 1976, s. 1 (2). Australia had not gone so far as New Zealand, as may be seen by comparing the Act under review with s. 4 (3) of the Family Law Act 1975. See Nygh (1976) 25 I.C.L.Q. 764, for the Australian reforms.

[4] For the purposes of these Acts, the domicile of any person was to be determined in accordance with the law of New Zealand. See, respectively, ss. 3 (2) and 6 (2).

[5] Uddin, Moin (2018). "Domicile as a Personal Connecting Factor: An Assessment of Judicial". International Journal of Global Community1 (3): 296.

[6] For cases on this subsection, see Miletic v. Miletic [1956] N.Z.L.R. 461; Boorman v. Boorman [1958] N.Z.L.R. 354; Rowley v. Rowley [1959] N.Z.L.R. 213; Grifiths v. Grifiths [1960] N.Z.L.R. 572. Note that s. 9 (1) of the 1953 Amending Act amended s. 10 of the 1928 Act

[7] Thus " overruling " such well-known cases as Lord Advocate v. Jaffrey [1921] 1 A.C. 146 (H.L.); Attorney-General for Alberta v. Cook [1926] A.C. 444 (P.C.) and De Reneville v. De Reneville [1948] P. 100 (C.A.) and "restoring" Hastings v. Hastings [1922] N.Z.L.R. 280, which ceased to be good law after the decision in the Cook case

[8] See Strike v. Gleich (1879) O.B. & F. 50 (C.A.); Holden v. Holden (1914) 33 N.Z.L.R. 1032; Leak v. Leak [1924] G.L.R. 248; Lewis v. Lewis [1944] G.L.R. 144; In re Dix (deceased) [1951] N.Z.L.R. 642. For cases where it was held that a New Zealand domicile of choice had not been abandoned and that consequently the revival doctrine did not operate, see Mason v. Mason (1900) 18 N.Z.L.R. 700: Savile v. Savile (1914) 16 G.L.R. 561; Grothkop v. Grothkop [1922] N.Z.L.R. 1; Stukeley v. Stukeley [1929] N.Z.L.R. 750; Lobley v. Lobley [1938] G.L.R. 258. '" Country " is now defined in s. 2 of the Domicile Act 1976 as meaning a territory of a type in which, immediately before the commencement of the Act, a person could have been domiciled. The common law is thus preserved: see e.g. Gatty v. Att.-Gen. [1951] P. 444 and cf. Godfrey v. Godfrey [1976] 1 N.Z.L.R. 711

[9] LawTeacher. November 2013. The Legal Concept of Domicile. [online]. Available from: https://www.lawteacher.net/free-law-essays/family-law/domicile.php?vref=1 [Accessed 25 September 2023].

[10] CHESHIRE, NORTH & FAWCETT, Private International Law, edited by JJ Fawcett and JM Caruthers, 14th ed. (Oxford: Oxford University Press, 2008).

[11] (1858) 10 HLC 124 .

[12] DICEY, MORRIS & COLLINS, The Conflict of Laws, edited by L Collins, 14th edition (London: Sweet & Maxwell, 2006).

[13] Mikaere, A., 1994. Maori women: Caught in the contradictions of a colonised reality. Waikato L. Rev.2, p.125.

[14] COATES, N.R., 2009. SHOULD MĀORI CUSTOMARY LAW BE INCORPORATED INTO LEGISLATION?.

[15] Sorrenson, M.P., 2015. The lore of the judges: Native land court judges’ interpretations of Maori custom law. TheWaka Kuaka: Journal of the Polynesian Society124(3), pp.223-242.

[16] Gover, K., 2009. Legal Pluralism and State-Indigenous Relations in Western Settle r Societies. International Council on Human Rights Policy.

[17] Harlen, J., 2021. Woven law: Te Nakahi and the re-storying of sovereignty in Aotearoa/New Zealand (Doctoral dissertation, Southern Cross University).

[18] Morar, R.E., 2021. Kia Whakatomuri te Haere Whakamua: Implementing Tikanga Maori as the jurisdictional framework for overlapping claims disputes. Victoria University of Wellington Law Review52(1), pp.197-220.

[19] Varuhas, J.N., 2023. The Principles of Legality in Aotearoa New Zealand. Forthcoming (2023) Public Law Review.

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