persons 8'.ppt
TRANSCRIPT
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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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