Law 623A Family Laws

Department of Law
University of Yangon

Legal Study on the Concept of Domicile under

Submitted by;
Nang Su Htar Nee
LL.M-28
Civil Law Specialization
Introduction
The term “domicile” is not defined in the constitution. Ordinarily, it means a permanent
home or place where a person resides with the intention of remaining there for an indefinite
period. Domicile forms a crucial legal concept governing matters of inheritance, succession and
tax purpose. It determines jurisdiction within which an individual’s estate is administered and the
laws that govern the distribution of their assets upon death. Understanding domicile is essential
in navigating the complexities of inheritance and ensuring the proper execution of testamentary
dispositions. Therefore, the concept of domicile under the Succession Act is important in the
realm of inheritance or succession.

Nature and scope of domicile

Domicile conveys the permanent abode of a person and their intent to remain there or
return to that place even if they leave for an indefinite period. That is, if a person leaves their
legal domicile, they intend to return or come back to it. Domicile is an important legal concept.
Through numerous enactments, it’s evident how a person’s domicile plays a very distinctive role
in the process of determining jurisdiction and consequently in determining the law.

Concept regarding with domicile is provided in Part II of the Succession Act, 1925.
Legally, domicile plays a key role in the writing of a will and is also prominent for laws of
succession, as according to the Myanmar law, the distribution of the property of a deceased
person domiciled in Myanmar will be conducted according to Myanmar laws. In Part II of the
Succession Act, 1925, it explain in detail the kinds of domicile and some other characteristics
regarding it. Section 4 of the Succession Act, 1925 precisely prescribe about its application,
where it clarifies that “This part shall not apply if the deceased was a Hindu, Muhammadan,
Buddhist, Sikh or Jains.”1 This is because the people who follow the said religions and beliefs
have Customary Laws that prescribe how a succession of movable and immovable property
should take place. This also implies that this part apply only to people who follow other
religions, like Christianity, that do not have any customary laws.

Kinds of domicile

1
Section 4 of the Succession Act, 1925.
 According to the Succession Act, 1925, domicile is of three kinds;

(1) Domicile by origin

Section 6, 7 and 8 of the Succession Act discuss about the domicile by origin which is the
domicile of a person by birth. This is when a child acquires a domicile after their birth, place of
birth is not to be confused with the domicile of the new born. Domicile is determined by the
domicile of the parents and there are three cases under this. For legitimate children, it is stated in
Section 7 of this Act that “The domicile of origin of every person of legitimate birth is in the
country in which at the time of his birth, his father was domiciled” 2 As an illustration, at the time
of the birth of A, his father was domiciled in England. A’s domicile of origin is in England,
whatever may be the country in which he was born.

For illegitimate children, it has been mentioned in Section 8 of the Succession Act as
“The domicile of origin of illegitimate child is in the country in which, at the time of his birth,
his mother was domiciled.”3 On the other hand, for posthumous children, Section 7 also
prescribed that “if he is a posthumous child, in the country in which his father was domiciled at
the time of the father’s death.” 4 Hence, it can be said that the way of acquiring domicile by birth
is the most common way of a person acquires domicile and they continue with till they decide to
change it.

(2) Domicile by choice

When an individual reaches the majority age, he can acquire a new domicile by moving
away from their domicile by origin with no intention of returning back to it. 5 As illustration, ‘A,
whose domicile of origin is in England, proceeds to the Union of Myanmar, where he settles as a
barrister or a merchant, intending to reside there during the remainder of his life. His domicile is
now in the Union of Myanmar.’6 However, a man is not to be deemed to have taken up his fixed
habitation in the Union of Myanmar merely by reason of his residing there in (the Myanmar)
civil, military, naval or air-force service, or in the exercise of any profession or calling. For
illustration to this, ‘A, whose domicile of origin is in France, come to reside in the Union of

2
Section 7, the Succession Act, 1925.
3
Section 8, Ibid.
4
Section 7, Ibid.
5
Section 10, Ibid.
6
Illustration (i) of Section 10, the Succession Act, 1925.
Myanmar under engagement with the Government of the Union of Myanmar for a certain
number of years. It is his intention to return to France at the end of that period. He does not
acquire a domicile in the Union of Myanmar.’ 7 In addition, a person cannot acquire a new
domicile during his minority.8

In order to acquire a new domicile, he/she shall follows the prescribed procedure given to
establish their new domicile voluntarily. Section 11 of this Act stated the mode of acquiring
domicile in the Union of Myanmar that ‘Any person may acquire a domicile in the Union of
Myanmar by making and depositing in some office in the Union of Myanmar, appointed in this
behalf by the President of the Union, a declaration in writing under his hand of his desire to
acquire such domicile.’9 For acquiring domicile in the Union of Myanmar, it’s compulsory to
make sure he has been resident in Myanmar for one year immediately preceding the time of his
making such declaration.10 It is important to note that until a new domicile has been acquired, the
domicile of origin prevails.11

However, in case when a person who is appointed by the Government of one country to
be its ambassador, consul or other representative in another country, does not acquire a domicile
in the latter country by reason only residing there in pursuance of his appointment; nor does any
other person acquire such domicile by reason only of residing with such first-mentioned person
as part of his family, or as a servant. 12 This is because they are residing at the time only because
of their work or appointment.

(3) Domicile by operation of law

This form of acquiring domicile is also called domicile by dependence as well, that is, the
domicile of a person is dependent on the domicile of another. The Succession Act, 1925 further
recognized this kind into three categories as follows;

1. Minors: The domicile of a minor follows the domicile of the parents from whom he
derived his domicile of origin.13 This is similar to the domicile by origin that was
7
Illustration (iii) of Section 10, Ibid.
8
Section 17 of the Succession Act, 1925.
9
Section 11 of the Succession Act, 1925.
10
Ibid
11
Section 9 of the Succession Act, 1925.
12
Section 12, Ibid.
13
Section 14, the Succession Act, 1925.
 mentioned earlier. But there is an exception that the domicile of a minor does not change
with that of his parents, if the minor is married or holds any office or employment in the
service of the Government or has set up, with the consent of the parent, in any distinct
business.14
2. Married woman: Section 15 and 16 states that a married woman acquire the domicile of
her husband, if she had not the same domicile before. 15 However, the wife’s domicile no
longer follows that of her husband if they are separated by the sentence of a competent
Court, or if the husband is undergoing a sentence of transportation.16
3. People with unsound mind: An insane person cannot acquire a new domicile in any other
way than by his domicile following the domicile of another person. 17 The term another
person can be a guardian, parents or even their spouse if they are married.

In order to acquire domicile in the Union of Myanmar, Section 11 of the Succession Act,
1925 provides the special mode as “any person may acquire a domicile in the Union of Myanmar
by making and deposing in some office in the Union of Myanmar, appointed in this behalf by the
President of the Union, a declaration in writing under his hand of his desire to acquire such
domicile; provided that he has been resident in the Union of Myanmar for one year immediately
preceding the time of his making such declaration.”18

The person desire to acquire domicile in Myanmar have to submit the application as
mentioned in Rule 9 of the Permanent Resident for Foreigner to the Implementation Working
Committee19, the committee which is formed for granting the permanent residence for foreigner
and for scrutinizing the application of such residence in accord with laws and rules 20. After the
Implementation Working Committee scrutinizing the application, it shall submit to the
Implementation Central Committee, the Committee formed by notification by the President of
the Union of Myanmar, together with the recommendation for granting the residence if it is in
conformity with orders and directive issued by the Ministry. 21 When the Implementation Central

14
Ibid.
15
Section 15 and 16, the Succession Act, 1925.
16
Exception of Section 16, Ibid.
17
Section 18, Ibid.
18
Section 11, Ibid.
19
Rule 9, the Permanent Residence of a Foreigner Rule, 2014.
20
Rule 2(n), Ibid.
21
Rule 11, the Permanent Residence of a Foreigner Rule, 2014.
Committee receives the submission, it shall inform in writing as the permanent residence is
granted to the relevant applicant if it decides of grant such residence after summoning the
relevant applicant and verifying with the document in the application. 22 Therefore, the person
receiving such residence certificate which is approved by the Implementation Central Committee
is deemed to acquire the domicile in Myanmar.

Difference between domicile and citizenship

Domicile refers to the place where a person has a permanent home and intends to reside
indefinitely while citizenship is a legal status that confers certain right and responsibilities on
individuals. In its nature, domicile is a legal concept associated with private law matters, such as
taxation, inheritance, and legal jurisdiction, but citizenship is a broader legal and political status
that encompasses political rights, such as the right to vote and participate in government affairs.
Moreover, another difference is that domicile can be changed based on an individual’s intention
and actions, such as establishing a permanent home in a different location. Whereas, citizenship
is usually more difficult to change. For their legal recognition, domicile is recognized more in
private law contexts and has implications for personal legal matters, while citizenship is a legally
recognized status with implications in public law, international law, and diplomatic relations.
Therefore, it can be said that both domicile and citizenship involve an individual’s connection to
a particular place. They serve different legal purposes and have distinct implications. Domicile is
more focused on private matters, while citizenship encompasses a broader set of legal and
political rights and responsibilities.

Conclusion

22
Rule 12(a), Ibid.
 To sum up, domicile servers as a cornerstone of inheritance, shaping the administration
and distribution of assets or estates of the deceased. It determines the jurisdiction within which
the individual’s estate is governed and the applicable laws that dictate the succession of assets.
By establishing residency and intention as key determinants of domicile, the Succession Act
provides a framework for adjudicating complex inheritance matters and ensuring the orderly
transfer of assets from one generation to the next. Therefore, it can be said that domicile
underscores the importance of careful estate planning and testamentary dispositions to safeguard
the interests of the heirs and beneficiaries upon death.