I. INTRODUCTION

The domicile of dependence is a legal arrangement where an individual’s domicile is dependent on another person, often in familial relationships like marriage or parental guardianship. This dependence can impact the dependent person’s legal status, rights and obligations within a legal system. A key concern arises in the context of marriage, where a wife is required to follow her husband’s domicile. This raises questions about the continued fairness and relevance of such a rule in today’s legal systems, particularly in terms of gender equality and individual autonomy.

In this article, we will first introduce the concepts of domicile and the domicile of dependence, followed by an analysis of the relevant provisions pertaining to the concept of domicile in Malaysia, England, Singapore, and Australia. Ultimately, we will determine whether the notion that a married woman must take her husband's domicile remains relevant or should be abolished in favour of a more progressive legal framework.

II. LEGAL CONCEPTS

A.    Domicile

Domicile is a person's established and permanent home,[1] where they reside and intend to return. It refers to a place where an individual has voluntarily established residence with the intention of making it their permanent home, unless and until unforeseen circumstances compel the individual to adopt a new permanent residence.[2] It thus represents a significant connection between the individual and a specific state,[3] in which it determines a person's civil status and their associated rights and obligations. In the context of family law, this includes marriage matters such as the court’s jurisdiction to hear divorce petitions.[4]

The domicile a person acquires at birth refers to the domicile of origin,[5] and is not necessarily the country of their family’s permanent residence at that time.[6]The domicile of origin cannot be abandoned from mere residence and occupation abroad.[7] A person's original domicile remains till another domicile is obtained. To acquire a new domicile, a person must not only reside in another country, but must also have the intention to reside there permanently.[8]

There are 3 different types of domicile: (i) domicile of origin, (ii) domicile of choice, and (iii) domicile of dependence.[9] For the purposes of this article, we will only venture into the concept of the domicile of dependence, particularly concerning married women.

B.    Domicile of Dependence

According to Lord Denning in Gray (Formosa) v Formosa, there is an antique belief in English law that a husband and wife are a union.[10]  The doctrine of coverture was a legal principle in common law systems by which married women’s legal rights were entirely subsumed by her husband’s legal identity. This doctrine dictated that a woman could not own property, enter contracts, or have a separate domicile from her husband.[11] The underlying rationale behind the rule, as demonstrated in Lord Advocate v Jaffrey,[12] is that because a wife has a duty to live with her husband, the law will assume that she does live with her husband. If she does not, the punishment for failure in her duty will at least be that she retains a legal incapacity.[13]

While this idea has been largely disregarded in almost every area of law, as seen by the fact that a husband and wife may sue one another in tort, it still persists in the concept of domicile. In Charnley v Charnley and Betty, it was held that the domicile of a married woman is of their husband’s while the marriage subsists, even though the parties may be living apart through an agreement or a decree of judicial separation.[14] Wives can be freed from this dependence only through a decree of divorce,[15] or the death of their husbands.[16] Additionally, if the husband moves to another country, the wives’ domicile automatically changes, even if she remains in the original jurisdiction.[17]

III. POSITION IN MALAYSIA

In Malaysia, there are no specific statutes or statutory provisions which govern the concept of domicile. Therefore, as stated by the court in Nanthivarman a/l Pichamuthu Mookiah v Sharmini Pillai,[18] the law in Malaysia regarding domicile shall follow the common law — more specifically, Section 3(1) and 3(2) of the Civil Law Act 1956.

The position in Malaysia regarding the domicile of wives is that they follow their husband’s domicile upon marriage.[19] Only the court in the country where the married couple is domiciled has the jurisdiction to dissolve the marriage; hence a decree of divorce pronounced by any other court is void.[20] This common law position has been given statutory recognition in Section 48(1)(c) of the Law Reform (Marriage & Divorce) 1976 which requires both husband and wife to be domiciled in Malaysia before the court can entertain proceedings for a decree of divorce.[21] In Tan Guan Hock v Khor Chai Heah, it was held that the petitioner has to prove to the court that both parties to the marriage are domiciled in Malaysia when presenting the divorce petition.[22] Hence, if the wife and husband are living in separate countries, the wife cannot file for divorce proceedings in the country where she currently lives but can only file for it in the country where the husband is domiciled.

In Ang Geek Choo v Wong Tiew Yong,[23] a Singaporean wife who has a Malaysian husband filed a divorce petition before the Malaysian Court. The husband raised a preliminary objection to dismiss the petition by claiming that the wife was originally domiciled in Singapore. However, since the common law domicile of dependence applies in Malaysia, the wife’s domicile is in Malaysia and the Malaysian High Court thus has the jurisdiction to deal with the divorce petition filed by the wife.

In conclusion, the Malaysian position for the domicile of dependence for married women follows the common law principle due to the absence of specific statutes. Under the common law, married women follow their husbands’ domicile upon marriage, reflecting historical perceptions of marriage being a union. This principle perpetuates, and influences jurisdictional matters in family law despite criticisms of its archaic nature.

IV. REASONS TO ABOLISH THE DOMICILE OF DEPENDENCE

There are several grounds to support the contention that the doctrine of domicile of dependence for married women is archaic. Below, the legal reforms in other jurisdictions that have abolished this law will be examined, alongside Malaysian laws that seem to depart from this common law principle.  Furthermore, we will also be analysing circumstances where the rule contravenes international laws.

A. Legal Reform in Other Countries

Historically, many Commonwealth countries adhered to the common law principle that a married woman’s domicile was entirely dependent on her husband’s. Over time, a combination of legal reforms and societal changes led to the gradual abolition of this doctrine, granting women greater autonomy in determining their own domicile.[24]

 1. England

In England, the 1969 Cripps Report, Fair Share for the Fair Sex, opined that the domicile of dependence which has its origin in common law constitutes clear discrimination against women.[25] The fact that wives must follow their husbands’ domicile even though the couple lives separately is absurd and has no justification.[26] While complexities may arise if a married couple has separate domiciles, this does not justify the continued imposition of the rule.[27] The Committee further recommended that a married woman living separately from her husband should be treated as equivalent to a single woman and be entitled to her own domicile independent of his.

Besides that, the rule was viewed as archaic, described by Lord Denning in Gray (Formosa) v Formosa as ‘the last barbarous relic of a wife's servitude’.[28] The rule was also notorious for unfairly restricting a wife’s rights to submit a petition of divorce to English courts, as she could only do so if both spouses were domiciled in England at the commencement of proceedings.[29]

In 1974, the domicile of dependence for married women was finally abolished by Section 1 of the Domicile and Matrimonial Proceedings Act 1973. English courts, notably in the case of Inland Revenue Commissioners v Duchess of Portland, further recognised that the domicile of dependence could result in injustice, especially if the couple had separated and lived in different nations,[30] resulting in major restrictions on a woman’s freedom and self-determination with relation to their domicile.

 2. Singapore

Section 45A of the Women’s Charter of Singapore, which was later repealed and incorporated into Section 52, abolished the principle of married women’s dependent domicile. Effective from 1st June 1981, the domicile of married women is determined by the same factors as any other individual capable of having an independent domicile, rather than following their husbands’ domicile upon marriage.[31] Additionally, Section 3(1A) clarifies that Section 52 applies for the purposes of determining a woman’s domicile for the application of this Act.[32]

The legislative framework governing women's rights in Singapore underwent a significant transformation with the enactment of the Women’s Charter. It was regarded as a ‘revolutionary’ step in improving women's social rights and safeguarding their welfare in Singapore.[33] The Charter eliminated legal provisions reinforcing male authority over women, aligning with broader efforts to ensure gender equality in personal and family law.

In David Arrowsmith v Chang Lee Chin, the court referred to Section 80(1)(b) of the Women's Charter, which stated that for divorce proceedings to be valid, one of the spouses must be domiciled in Singapore at the commencement of proceedings. To discuss the issue of domicile, Section 45A was brought in. In this case, a wife married a husband, who was domiciled in England before 1 June 1981. The court ultimately held that the wife was domiciled in England by choice rather than by legal dependency, as Section 45A of the Women’s Charter allowed her to establish an independent domicile.[34] This ruling reaffirmed that after the 1981 legislative changes, married women in Singapore were no longer legally bound to their husband’s domicile, ensuring greater autonomy in legal matters such as divorce proceedings.

 3. Australia

Initially, Australia followed the common law doctrine of the domicile of dependence. However, the Married Women’s Property Acts marked a pivotal shift away from the common law doctrine of coverture, which treated a wife’s legal identity as dependent on her husband’s. These Acts granted married women the right to hold property, enter contracts, and litigate in their own names, laying the foundation for legal autonomy within marriage.[35]

Reforms towards abolishing the domicile of dependence was evident by the enactment of the Australian Family Law Act 1975. Under Section 39 of the Act, divorce can still be filed even if neither spouse is domiciled in Australia, as long as either party to the marriage is an Australian citizen or has been ordinarily resident in Australia for at least one year before filing.[36] This Act introduced significant changes in the law of domicile, as it enables married couples to keep their respective  domicile for divorce application, which is a recognition of their separate legal identities and rights.

Subsequent cases reinforced this transition of upholding women’s separate legal identity, such as in the case of Gronow v Gronow, where Justice Murphy acknowledged the evolving attitudes toward the roles of spouses.[37] While it does not directly rule on the legal status of married women, the judgement marked a departure from traditional notions of a wife’s subordinate legal position by affirming that women are capable of bearing legal responsibility and exercising parental authority on equal footing with men.

The common law doctrine of domicile of dependence was then formally abolished by the Domicile Act 1982, specifically Section 6 of the Act which stated that the rule where a married woman follows the domicile of her husband is abolished. In Kaur & Narula, the court recognised that the applicant's wife, though not an Australian citizen, had acquired a domicile of choice through permanent residency and a clear intention to remain indefinitely, rejecting the notion that her domicile followed her husband.[38] Likewise, in Fertig & Bosque, the court implicitly affirmed this principle by asserting jurisdiction in Australia despite the husband’s return to Country B, contrasting with Country B’s retention of the outdated dependent domicile rule.[39] Together, these cases affirm that in Australian family law, domicile of choice is the prevailing standard, empowering women with autonomous legal standing in cross-jurisdictional disputes.

Through these legislative and judicial developments, Australia completely abolished the common law rule of dependent domicile, ensuring that women are no longer legally bound to follow their husbands’ domicile but could establish their own domicile independently, in line with modern principles of gender equality and legal autonomy.

From the discussion above, countries like England, Singapore, and Australia have enacted legislation to abolish the common law of domicile. In contrast, Malaysia has seen instances where the courts have departed from this principle,[40] yet many other cases still uphold this outdated law due to the absence of express statutory provisions to abolish the law. This will be further discussed below.

B. Judicial Challenges to the Common Law Rule in Malaysia

The Kuching High Court case of Teo Ka Fook v Loo Chiat Hui marked a significant departure from the established law and a long line of cases which affirm the applicability of the common law rule unless it is explicitly abolished by new statutory provisions.[41]

Rhodzariah Bujang JC stated that the law recognised the transition of a married woman’s domicile from domicile of dependence into a domicile of choice, thereby recognising women’s rights as an independent person. Hence, the absence of a statutory provision repealing the concept of a wife’s domicile of dependence should not confine Malaysian women to an archaic and ancient notion of women’s dependence. Besides, as some countries have progressed to grant women more freedom regarding their domicile, the judgment provides that the legal burden of women to prove that they had relinquished their domicile of dependence should be lighter to reflect society’s growing acknowledgement of women’s autonomy as an individual, regardless of their marital status.[42]

Nonetheless, apart from this one case, most Malaysian courts continue to uphold the common law principle, as seen in Khoo Kay Peng v Pauline Chai Siew Phin. Here, the High Court respectfully rejected the decisions in Teo Ka Fook, claiming that the law of domicile in Malaysia is still based in common law due to the absence of legislative reform.[43] It is evident that while some judges recognise that the domicile of dependence is archaic, courts remain bound to apply the law as it currently stands. 

C. Aligns with Progressive Statutory Development

Although certain statutory provisions, such as the Married Women Act 1957 (‘MWA’) and Section 49 of the LRA, have granted married women greater legal independence, Malaysia has still not explicitly abrogated the requirement that a wife’s domicile follows her husband’s. This reluctance to fully depart from the principle of coverture continues to limit women’s autonomy and independence.

1. Married Women Act 1957

The MWA introduced various measures that include granting married women the right to independently acquire, own, and dispose of property,[44] thus breaking the legal link between property rights and their husbands’ domicile. Furthermore, the MWA conferred upon married women the capacity to enter into contracts and initiate legal proceedings independently, as if she were a feme sole.[45] These changes weaken the traditional common law principle that regarded a husband and wife as being ‘one entity’.[46]

Nonetheless, the provisions in the MWA do not explicitly address domicile; thus, the concept of domicile of dependence remains intact. Therefore, while it largely grants married women independence from their husbands’ identity, their domicile status is still determined by outdated principles. By contrast, the MWA’s counterpart – Singapore’s Women’s Charter 1961 – took a more progressive approach by formally abolishing the domicile of dependence rule,[47] allowing married women’s domicile to be decided in the same way as any other individual. This aligns with the Charter’s objective to grant greater legal autonomy to women,[48] and highlights the need for Malaysia to take similar steps.

2. Exception under Section 49 of Law Reform (Marriage and Divorce) Act 1976

Section 49 of the LRA introduces exceptions that allow a wife to file for divorce even if her husband is not domiciled in Malaysia. This provision applies in two circumstances: first, if the wife has been deserted by the husband, or if the husband has been deported from Malaysia, provided he was previously domiciled in Malaysia; and second, if the wife is a resident in Malaysia and has been ordinarily resident in Malaysia for a period of two years immediately preceding the commencement of the proceedings.[49] This provision grants wives’ access to legal remedies and protections even if their husbands are not present in Malaysia.

In Re Yamamoto Ryoji & Anor, the court acknowledged that Section 49 of the LRA was enacted to provide some flexibility to the domicile requirement, alleviating the strictness and harshness of the dependence domicile rule towards married women.[50] The fact that an exception was required to mitigate the harshness of the domicile of dependence rule suggests that the principle itself is unjustifiable.

Section 49 highlights the perpetual challenge faced by lawmakers in navigating the complexities revolving the domicile of dependence. Instead of relying on partial reforms, Malaysia should follow in the footsteps of other jurisdictions that explicitly abolished this archaic principle.

D. Prevent Conflict with International Laws

The principle of domicile of dependence for married women in Malaysia conflicts with its obligations under international law to uphold gender equality, particularly as Malaysia is a signatory to the Universal Declaration of Human Rights (‘UDHR’) and a state party to the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’). These standards emphasise the importance of gender equality and the prohibition of discrimination on the grounds of gender, yet Malaysia’s persistent recognition of the law of domicile of dependence in Malaysia does not fully comply with these international standards.

1. Universal Declaration of Human Rights

International conventions have repeatedly emphasised the importance of gender equality as a fundamental cornerstone of human rights. This recognition is rooted in the UDHR, which highlights gender equality as a crucial element of global human rights law. The convention expressly states that any form of discrimination on the grounds of gender is prohibited, as can be seen in Articles 1, 2 and 7 of the convention.[51] The UDHR framework eventually laid the groundwork of the CEDAW by the United Nations in 1979.

2. Convention on the Elimination of All Forms of Discrimination Against Women

CEDAW – an international women’s rights treaty – imposes an obligation on the government to eliminate all forms of gender-based discrimination. The treaty was ratified by Malaysia in 1995, and in furtherance of its commitments, amended Article 8(2) of the Federal Constitution in 2001 to include the word ‘gender’.[52]

The provisions of this treaty that may be referred to in relation to domicile is Article 15(4), which affirmed that men and women shall have the same liberty in regard to movement of individuals and the freedom to choose their own residence and ‘domicile’.[53] Despite this, the CEDAW’s Committee General Recommendations No. 21 observations on state parties‘ report found that women are not always legally permitted to choose their own domicile. It therefore emphasises that adult women should be able to change their domicile at will regardless of marital status as any limitations on this right can limit their access to courts in their country.[54]

This issue is reflected in the Malaysian case of KKP v PCSP.[55] Despite Malaysia’s ratification of the CEDAW, the court upheld the common law doctrine of domicile of dependence on the grounds that there is no provision in the LRA that incorporates the CEDAW’s principles.[56] This aligns with the trite principle that international treaties do not automatically become binding law unless it is first incorporated into our domestic legislation by an Act of Parliament.[57] Therefore, legislative intervention is necessary to integrate Article 15(4) of CEDAW into the LRA, allowing married women to determine their own domicile and abolishing the outdated common law rule. Malaysia has already recognised gender equality by amending the Federal Constitution, yet it has not reformed the LRA to reflect the same principle. The continued application of the domicile of dependence rule conflicts with Malaysia’s obligations under the CEDAW and continues to limit women’s legal rights.

However, it is important to acknowledge Malaysia’s reservations when ratifying CEDAW, particularly regarding Article 16(1)(c), which states that ‘States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations...’.[58] This reservation raises the argument that Malaysia is not strictly bound by CEDAW when it comes to marriage and divorce matters, including the domicile of dependence. However, a rebuttal to this argument lies in the fact that while Malaysia has reserved Article 16, it has not made reservations to Article 15(4), which explicitly guarantees women’s freedom to choose their domicile.[59]

E. Promotes Gender Equality

It is submitted that the principle that wives’ domicile is dependent on their husbands’ upon marriage upholds traditional patriarchal values and reflects the doctrine of ‘coverture’ as well as legal subordination of married women to their husbands.

It is biased and discriminatory against women, as it requires them to seek legal proceedings for nullity of marriage, inheritance rights, etc. in a jurisdiction different than their own. Requiring a woman to seek judicial proceedings in her husband's domicile rather than her own, while allowing a husband to access the courts in his own jurisdiction without restriction, imposes a disproportionate burden upon women that is not imposed upon men as they must travel to their husband’s domicile for access to courts. Additionally, subjecting a wife’s legal matters to an unfamiliar legal system, especially if she is unaware of her husband’s whereabouts, places her in an unfair position. This unequal treatment of women is evident and undisputed.[60]

V. ADDRESSING COUNTERARGUMENTS FOR ABOLISHING DOMICILE OF RESIDENCE

A. Removing the Domicile of Dependence May Create Jurisdictional Challenges

When spouses can establish separate domiciles, it opens the possibility of initiating proceedings in different jurisdictions. This compels the courts to more frequently engage in determining which jurisdiction is the more ‘appropriate’ forum. This increases litigation costs and time, and it also involves proving intention and residence, which can be contentious. Different countries apply different rules for domicile and jurisdiction in family law. This can lead to conflicts of law, where one jurisdiction refuses to recognise proceedings or judgments from another.

The case of Khoo Kay Peng v Pauline Chai Siew Phin presents a conflict between Malaysian and English courts over which court has the authority to hear the divorce proceedings. The husband’s preference for Malaysia is based on the potential for a more favourable financial outcome; meanwhile, the wife aimed for England, where she resided, and believed the settlement would be more favourable. The Federal Court held, in adherence to the domicile of dependence, that the wife did not have the right to choose her domicile independently of her husband, thereby granting the Malaysian court’s jurisdiction over the divorce proceedings.[61]

The case above exemplifies how the domicile of dependence simplifies jurisdictional determinations by automatically aligning a wife’s domicile with her husband. By ensuring that both parties are subject to the same jurisdiction, it provides clarity and predictability in legal proceedings. The absence of the domicile of dependence could lead to complications in establishing jurisdiction, especially when spouses reside in different countries.

Be that as it may, this simplification clearly comes at a cost of a married woman’s autonomy and may compel her to engage in legal proceedings in a jurisdiction which she has minimal connections with. Additionally, this argument overlooks the fact that jurisdictions such as Singapore, the United Kingdom, and Australia have successfully abolished this outdated rule. In these countries, the determination of a married woman's domicile is now governed by the same principles that apply to any independent individual. Despite the abolition, these jurisdictions have managed to address issues of conflicting jurisdictions effectively, thereby challenging the notion that doing so would necessarily create undue complexity or procedural difficulties.

B. The Exceptions to Section 49 of the LRA Adequately Address the Doctrine's Shortcomings

Exceptions to Section 49 recognises that wives could initiate divorce proceedings in Malaysia by satisfying the exceptions outlined, such as being ordinarily resident in Malaysia for a specified period, even though her husband was not domiciled in Malaysia. This demonstrates that the statutory exceptions provided under Section 49 can offer sufficient legal avenues for wives to seek divorce, thereby mitigating the potential injustices arising from the doctrine of domicile of dependence. Hence, this suggests that a complete abolition of the doctrine may not be necessary as the current legal framework already provides mechanism to address its shortcomings.

Nonetheless, relying solely on these exceptions fails to address the broader issue of systemic gender inequality embedded within the doctrine. It remains difficult for married women to fulfil the narrow and stringent requirements imposed by the provision. Relief is only available in specific circumstances such as desertion, deportation, or when the wife has lived in Malaysia for at least two years. This effectively means that many women trapped in difficult or abusive marriages are still unable to access the courts unless they meet these strict conditions.

This inadequacy is illustrated in Re Yamamoto Ryoji & Anor, where the wife's reliance on Section 49 was rejected by the court due to her failure to meet the strict requirements. There was no desertion or deportation, and she marginally lacked the two-year residence requirement. The court also emphasised that ‘residence’ must be established through multiple factors beyond mere fleeting presence.[62]

Hence, this case highlights how Section 49 constitutes only a marginal improvement and does not eliminate the underlying injustice inherent in the domicile of dependence rule.

VI. CONCLUSION

The concept of domicile, particularly domicile of dependence, has a significant impact towards the legal status of married women in Malaysia, as it undermines gender equality in this country. Hence, we believe that it is crucial to abolish the law of domicile of dependence based on the common law to grant women the liberty to choose their own domicile, and to achieve true gender equality.

Globally, there is a growing consensus that gender equality, individual autonomy, and respect for international human rights standards should take precedence over the outdated principle of domicile of dependence. Countries like England, Singapore and Australia have abolished the domicile of dependence law through legal reforms that defend individual liberty and gender equality; meanwhile, international conventions such as UDHR and CEDAW also stress the significance of removing discriminatory practices and allowing women the right to choose their residence and domicile.

On top of that, the Malaysian legal framework also implied the departure from the outdated law of domicile of dependence, despite the absence of any express statutory provisions abolishing the law. The enactment of the Married Women Act 1957 and the exceptions under Section 49 of the LRA indicate the need to alleviate the unfairness and discrimination caused by the common law principle.[63]

Therefore, the abolishment of the archaic law of domicile of dependence would grant women greater independence to navigate legal matters in family law. As Malaysia strives for a more inclusive and progressive society, reforming the law of domicile would be a necessary step towards a more equitable future.