DOMICILE, RESIDENCE AND

APPLICATION OF THE LAW

REFORM (MARRIAGE AND
DIVORCE) ACT, 1976
The LRA was enforced on the 1st March
1982.
General application of the LRA: sections
3(1), (2),(3).
 Section 3(1) of the LRA: The LRA shall
apply to all persons in Malaysia and to all
persons domiciled in Malaysia but are
residence outside Malaysia, except as it
otherwise expressly provided.
 Section 3(2) of the LRA: A person who
is a citizen of Malaysia, shall be deemed,
until contrary is proved, to be domiciled
in Malaysia.
 Section 3(3) of the LRA: The LRA does
not apply to a Muslim or any other
person who is married under Muslim law,
except a decree of divorce under section
51 of the LRA.
 Section 3(4) of the LRA: (on exceptional
cases): application to the native of Sabah
and Sarawak, and aborigine of
Peninsular Malaysia, if:
• he elects to marry under the LRA, or
• he contracted his marriage under the
Christian Marriage Ordinance, or
• he contracted his marriage under the
Church and Civil Marriage
Ordinance.

NOTE: The native of Sabah and Sarawak

and aborigine of Peninsular have the
choice whether to be subjected to the
LRA.

 Native of Sabah and Sarawak: Article

161A(6) of the Federal Constitution,
i.e.as follows:
• in relation to Sarawak, a person who is
the citizen and belongs to one of the
races specified in clause (7) as
 indigenous to the State or is of mixed
blood deriving exclusively from those
races, and
• in relation to Sabah, a person who is a
citizen, is the child or grandchild of a
person of a race indigenous to Sabah,
and was born (whether on or after
Malaysia Day or not) either in Sabah or
to a father domiciled in Sabah at the
time of the birth.
 Indigenous to Sarawak: Article 161A(7)
are Bukitans, Bisayaks, Dusuns, Sea
Dayaks, Land Dayaks. Kadayans,
Kalabits, Kayans, Kenyaks, Kajangs,
Lugats, Lisums, Malays, Melanos,
Muruts, Penans, Sians, Tagals, Tabuns
and Ukits.

 Section 3(1) of the LRA: The LRA

shall apply to all persons in
Malaysia and to all persons
domiciled in Malaysia but are
 residence outside Malaysia, except
as it otherwise expressly provided.
 Section 3(2) of the LRA: A person
who is a citizen of Malaysia, shall
be deemed, until contrary is
proved, to be domiciled in
Malaysia.
 Section 26(1) of the LRA: Where
either party is not domiciled in
Malaysia, the proposed marriage, if
solemnised, must be regarded
valid in the country where such
party is domiciled, before the
marriage could be solemnised.
 Section 26(1) of the LRA: The
issue of domicile is important for
marriages solemnised overseas
but in accordance with the LRA.
 Section 104 of the LRA: The
issue of domicile is important for
 marriages solemnised overseas
according to the law of the foreign
country.
 Section 105 of the LRA: The
issue of domicile is important for
the recognition of foreign marriages
contracted in any foreign Embassy,
High Commission or Consulate in
Malaysia.
 Section 48(1) (c) of the LRA
1976: The court will make a decree
of divorce if at the time when the
petition was presented the domicile
of the parties are in Malaysia.

• Domicile of origin

 Everyone has a domicile of origin. He

obtains this domicile at birth and in
general situation, carries it through his
 lifetime. When he acquires a domicile of
choice, his domicile of origin becomes
suspended and will be revived upon
relinquishment of the domicile of
choice. A person’s domicile of origin
follows that of his father, if the person is
legitimate, or his mother, if the person
is illegitimate.
Case: Kanmani v. Sundarampillai [1957]
M.L.J. 172.

 The respondent husband had nominated

Kuala Lumpur as the place of payment
under his insurance policies and
intended his children to be educated in
Malaya and had no intention of taking
them with him to Ceylon, his domicile of
origin.
 He was closely associated with a temple
in Sentul and had expressed an intention
to devote his life to it.
 However, he had not attempted to
secure a permanent dwelling in
 Malaya and had made no attempt to
take out Federal citizenship and, as a
result, his domicile is still Ceylon and the
respondent’s domicile is that of her
husband, i.e. Ceylon.
• Domicile of choice

 Any person may acquire a domicile of

choice provided he is an adult, namely,
18 years according to section 2 of the
Age of Majority Act. For a female, the
acquisition of a domicile of choice is
possible if she is an adult and
unmarried. When a domicile of choice is
obtained, the domicile of origin would be
held in abeyance temporarily until
abandonment of the domicile of choice.
 The burden of proof is on the person
who asserts that he has obtained the
domicile of choice.
 The change of abode or residence
must be voluntary, and not due to some
compulsion, for example, because of
 duties, responsibilities, absconding from
creditors respite from poor weather or
for health purposes.

Case: Udny v. Udny (1869) L.R. 1 Sc &

Div 441

The court held that selling off the house

and its furniture indicates Udny’s intention
to terminate the domicile of choice. As a
result, the law applicable to him is his
domicile of origin.
Case: Shaik Abdul Latif v. Shaik Elias
Bus [1915] 1 F.M.S.L.R. 204.

The deceased had a domicile of origin in

Hong Kong. He moved from Hong Kong to
Singapore and subsequently to Kuala
Lumpur, where he lived for 19 years until
his death. While in Selangor, he amassed
wealth, built a home for his family and
regarded Selangor as his place of
residence. Since he has no other house
either in Hong Kong or any where else and
he never returned Hong Kong and his two
Chinese wives, had embraced Islam and
never visited China, the court held that he
had acquired the domicile of choice in
Selangor.

Case: Joseph Wong Phui Lun v. Yeoh

Loon Goit [1978] 1 M.L.J. 236.
(singapore court)

 Although the petitioner was still a

Malaysian citizen, he had declared upon
oath that he contemplated applying for
Singapore citizenship as soon as he
qualified for the minimum qualification of
ten years.
 He returned to Kuala Lumpur once or
twice a week but subsequently took a
mistress and lived with her in Singapore
until he ceased to return to Kuala Lumpur
when his wife knew of their relationships.
 The petitioner became a permanent
resident of Singapore and was issued
a blue identity card. He resigned from
the Royal Selangor Golf Club and
from the Selangor Club at Kuala
Lumpur and became a member of the
Singapore Island Country Club and the
American Club in Singapore. The court
held that the petitioner has acquired the
domicile of choice in Singapore.
Case: Melvin Lee Campbell v. Amy Anak
Edward Sumek [1988] 2 M.L.J. 338.

 Although the petitioner expressed the

feeling that Malaysia would be a place he
would make his home, the court
considered other relevant factors in
deciding his domicile i.e. the fact that the
petitioner has not brought for himself
any property or made any actual
investment in Malaysia and was
employed in Indonesia after being a
managing pilot in Kuching.
 The court held that he had not been
successful in proving that he acquired
the domicile of choice, though he has
taken steps to explore the possibility
of investing in Malaysia and married a
native of Sarawak and arranged for
the child of the marriage to reside and
be educated in Sarawak.
• Each child attains the domicile of origin
upon birth, and this is normally that of
his father, if the child is legitimate, the
child follows the domicile of his mother.
An adopted child takes the domicile of
his adoptive father or mother and if the
adopters are spouses, the child’s
domicile takes that of his adoptive
father.

• For a woman, she takes the domicile of

her husband, upon marriage.Only a
decree of divorce will release her from
this dependence. In England, the
Domicile and Matrimonial Proceedings
 Act 1973 enables a wife to hold on to
her own domicile without taking on the
domicile of her husband upon marriage.
In Malaysia, the position is still the same
as in the common law.
Case: Ang Geck Choo v. Wong Tiew
Yong [1997] 3 M.L.J. 467

The petitioner was originally domiciled in

Singapore, but according to the law of
domicile applicable in Malaysia, her
domicile changed to that of Malaysia upon
her marriage to her Malaysian husband .

• Matrimonial domicile
This concept is applied in England, where
the essential validity of a marriage was
to be determined by the law of the
country in which the parties intended to
make their matrimonial home.

Case: Radwan v Radwan [1972] 3 All E.R.

1026.
Although the wife’s domicile of origin was
English, the marriage was valid since
her capacity to enter into a polygamous
union was governed by the law of Egypt
where, before their marriage, the parties
had decided to set up their matrimonial
residence and where polygamy was
practiced.

CASES
• Indarjit Singh v Jinder Pal (Singapore) [1975 -
1977] 1 SLR 349
• Joseph Wong Phui Lun v Yeoh Loon Goit [1978
- 1979] 1 SLR 252
• Public Prosecutor v Rajappan [1986] 1 MLJ 152
• Nancy Kual v Ho Thau On [1994] 1 MLJ 545
• Jambalingam Saminathan Alao Spelt As
Saminaden v Antoniammal Saminathan & Anor
[1941] 1 MLJ 79
• Wong Phui Lun Joseph v Yeoh Loon Goit [1978
- 1979] 1 SLR 252
• Mala Shukla v Jayant Amritanand Shukla [2002]
3 SLR 295
• Prasert Wongphattarakul and Poh Bee Bee
[1996] 276 MLJU 1
• Long Yan Fei v Pauls Baya [1999] 5 MLJ 491
• Gl O'Hara Hickson V J O'Hara Hickson, L
Levinsonas [1935] 1 MLJ 265
• Marshall v Marshall [1956] 1 MLJ 122
• Anthony v Anthony (Nee Pragasam) [1959] 1
MLJ 42

 
Definition of residence:
The Shorter Oxford English Dictionary: to
have one’s usual dwelling-place or abode;
to reside.

Case: Fox v. Strik & Anor [1970] 3 All

E.R 7
Residence has been defined by the court
as physical presence and an intention to
remain in the same place for a sufficiently
long period to make that presence more
than fleeting or transitor. There is no need
to own property in a place to be capable of
residing there.
Case: Levene v. Commissioners of
Inland Revenue [1928] A.C. 217 (H.L)
The judge applied the definition from the
Shorter Oxford English Dictionary: to have
one’s usual dwelling-place or abode; to
reside.

Case: Mahon v. Mahon [1971] 2 M.L.J.

266.
The parties to the marriage since their
marriage in 1955 has for the past 15 years
had their matrimonial home in the
Federation. The petitioner had been
ordinarily resident in the Federation
since 1955 though the petitioner has
been away in Ireland during the 15
months of the three years immediately
preceding the filing of the petition.
Case: TPC v. ABU & Anor [1983] 2 M.L.J.
79.
The court held that the word residence has
no technical meaning. Therefore, it should
be construed in accordance with the object
and intent of the statute in which it occurs.

Case: Inland Revenue Commissioners v.

Lysaght [1928] A.C. 234 (H.L)
The court held that the issue of ordinary
resident is a question of fact.
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