What Is The Difference Between Domicile And Residence?

The terms “domicile” and “residence” are not defined in the Law Reform Act 1976. There is also no specific statute or statutory provision governing these 2 terms. As such, these 2 terms are often mistaken as the same although they have different legal definitions.

What is the meaning of “domicile”?

“Domicile” means:

1. A place of residence or ordinary habitation;
   

2. A house or home; and
   

3. The place where one has his permanent residence, to which, if absent, he has the intention of returning.

There are 3 types of domicile: Domicile of Origin, Domicile of Choice and Domicile of Dependence.

How do you differentiate Domicile of Origin, Domicile of Choice and Domicile of Dependence?

1. Domicile of Origin

   • Obtained at birth and in a general situation, you carry it through your lifetime.

   • However, if you acquire a Domicile of Choice, your Domicile of Origin become suspended and will be revived upon the relinquishment of that Domicile of Choice.

   • A child’s Domicile of Origin follows his father (if legitimate) or follows his mother (if illegitimate).

1. Domicile of Choice

   • Acquired by any person who has attained the age of majority (18 years old).

   • When a Domicile of Choice is obtained, the Domicile of Origin would be held in abeyance temporarily until abandonment of the Domicile of Choice.

   • Most importantly, the change of domicile must be voluntary and there must be a clear objective and intention to live in a place.

1. Domicile of Dependence

   • 2 types of Domicile of Dependence, namely that of a child and that of a wife.

   • Each child attains a Domicile of Origin upon birth, and this is normally that of his father, if the child is legitimate. If the child is illegitimate, he follows the domicile of his mother. The reason behind this dependence is because a child is incapable of having an intention that is needed to determine a domicile.

   • For a woman, she takes on the domicile of the husband upon marriage. The reason for this dependence is because under the common law, a husband and a wife were viewed as one entity.

   • As long as a husband and a wife remain married, the woman takes her husband’s domicile. It does not matter whether she may be living separately from her husband either through judicial separation / an agreement. Only a decree of divorce will release a wife from this dependence.

Why is your domicile important?

Domicile determines your civil status, such as your rights and duties in family law. Domicile is crucial in determining the validity of a marriage. As for divorce, the domicile of the parties to a marriage at the time when the divorce petition is presented must be in Malaysia before the court has jurisdiction to entertain the petition. (Section 48(1)(c) Law Reform Act 1976)

What is the meaning of “residence”?

“Residence” means:

1. To have one’s usual dwelling-place or abode;

2. To reside; and

3. Physical presence and an intention to remain in the same place for a sufficiently long period to make that presence more than fleeting or transitory.

There is no need to own property in a place to have a roof over one’s head. The physical presence must have some degree of permanence, i.e a traveler does not amount to residence.

Why is residence important?

• Residence determines the marriage district in which the parties should submit their notice of intention to marry. (Section 14 Law Reform Act 1967)
  

• Before the court has jurisdiction to make a decree of nullity of marriage, both parties to the marriage should reside in Malaysia at the time of commencement of proceedings. (Section 67(c) Law Reform Act 1976)
  

• Before the court has jurisdiction to make a decree of judicial separation, both parties must be resident in Malaysia at the time of commencement of the proceedings. (Section 48(2)(c) Law Reform Act 1976)
  

• An adoption order shall not be made in favour of any applicant who is not ordinarily resident in Peninsular Malaysia or in respect of any child who is not a resident. Not only the applicant must be ordinarily resident in Peninsular Malaysia but also the child who is to be adopted. (Section 4(3) Adoption Act 1952)

Can I have more than one domicile at one time?

No. You can have only one domicile at one time but you can have more than one place of residence at one time. You can domiciled in one place but resident in another place.

This article is only intended to provide general information to our Firm's clients and it should not be regarded as professional legal advice. Should you require any professional legal advice, you are advised to consult us.