| Return to Contents Minors : The Interaction of the Lex Domicilii and the Lex Fori Richard Michel The Royal Court was recently asked to decide whether it is proper that a tuteur can be discharged and a tutelle dissolved in circumstances where the minor child has not attained the age of 21, but is considered by the law of his domicile to be of full age and effect. The minor child had not, at the time of the application, reached the age of 20, so no application for an enagement could be made. The Royal Court decided that under these circes it was proper for the tuteur to be discharged and the tutelle dissolved [1]. In arriving at its decision the Royal Court looked not only to Jersey law, but also to cases decided in the United Kingdom and New South Wales, Australia, and to An Introduction to European Legal History (1985) which contained references to the Breton jurist, Bertrand d’Argentré’s attempt to resolve issues of status in France:- "His solution, the doctrine of statut personnel, was derived from the writings of the commentators who had had to solve similar problems in connection with the difference laws of the city states of northern Italy. This doctrine held that certain aspects of custom, in particular those attaching to personal status and capacity, must be viewed in relation to the person rather than the territory; a man acquired them by birth or domicile and carried them with him as he moved from region to region." In two previous instances the Royal Court haed a tutelle to be discharged but only in circumstances where the assets of the tutelle were paid to the Public Trustee [2] and where on emigration to Canada the assets were transferred into the sole name of the tutrice pending her children’s atteir majority. [3] Le Gros in his Traité du Droit Coutumier de l’Ile de Jersey, at page 175 states the position as regards the age of majority unequivocally:- "LE MINEUR est l’individu de l’un ou de l’autre sexe qui n’a pas atteint l’âge de vingt ans révolus. Il n’y a pas à se préoccuper de savoir si son jugement et sa raison lui permettent d’accomplir les actes de la vie civile avant cet âge. Le développement de l’intelligence ne se produit pas d’une façon uniforme; mais la loi, s’aidant des lumières de l’expérience, a ordonné que l’émancipation se fera à l’âge de vingt ans. D’après l’Ancien Coutumier, ch. 33 "De garde d’orphelins," "L’en doibt sçavoir que ceulx sont dedens aage qui n’ont pas accomply vingt ans"; et au ch. 43 "De non aage" on trouve cet autre passage: "Nous dirons que ceulx sont en non aage, qui n’ont pas accomply vingt ans." Le Geyt in Les Manuscrits sur la Constitution, les Lois et s de cette Ile [4] is no less unequivocal: "Quelque parti qu’il y ait pour cette Authentique, elle ne peut pas avoir lieu dans un pays où les mineurs de vingt ans sont aussi restreints qu’ils le sont à Jersey. Celuy qui fait jurer le mineur de ne point contrevenir à son Contrat, ne peut ignorer l’illégalité de ce qu’il exige de luy." In the circumstances of the case before the Royal Court the assets held by the tutelle were the proceeds of inheritance. Dicey and Morris on the Conflict of Laws (12th Ed. 1992) Vol. 2 at page 1028 state:- "A legatee has capacity to receive a legacy of moveables if he has capacity either by the law of his domicile or by the law of the testator’s domicile." That principle beollowe In re Hellman’s Will [5] ; In re Schnapper [6] and In re Lee Hing’s Will [7] . In re Fargus the minor was domiciled and ordinarily resident in the United Kingdom so that the provisions of section 1 of the Family Law Reform Act, 1969, applied and accordingly he had attained full age and capacity on attaining his eighteenth birthday. The Royal Court in coming decision applied the dictum from the Court of Appeal decision in The Official Solicitor v Clore [8] . "What is said in answer and what indeed is reflected in the judgment of the learned Deputy Bailiff is that it has nowadays become quite common for the Court in Jersey to look to other systems of law, and in particular to look at English Law, on questions such as domicile and conflict laws and it is taking too narrow a view only to look at the law of Jersey." Now what is the position where a UK domiciled and resident individual aged 19 wishes to commence proceedings in Jersey against a Jersey resident, say for damages consequent upon a road traffic accident? Can he do so in his own name and in his own right? Rule 4/3(1) of the Royal Court Rules, 1s amended, [9] provides:- "Actions by and against minors A minor may commence, prosecute, defend, intervene in, or make any application in, any action before the Court by a guardian ad litem appointed for that purpose." Does the "lex domicilii" or the "lex fori" apply? There appeared to be no decided case in Jersey on the point. However Ord. 80 r.2 of the Rules of the Supreme Court (The Supreme Court Practice, 1997), which is in similar terms to Rule 4/3(1) of the Royal Court Rules 1992, as amended, makes it clear that it is the "lex fori" and not the "lex domicilii" which is the relevant law because the basis upon which a person may commence or defend proceedings is procedural law. Should an "infant" commence proceedings other than through a guardian ad litem then the proceedings may be set aside or stayed until a guardian ad litem is appointed, and the ors acting for the minor may be held personally liable for the costs [10]. Thus, although the foreign plaintiff, of full age and capacity in the country of his domicile, can only commence or defend proceedings in jurisdictions where he has not attained the age of majority according to the "lex fori" through or by a guardian ad litem, he may nevertheless give a valid receipt for any mowing to him from that litigation [11] . The Royal Court, in order to decide what is the common law of Jersey in relation to capacity to receive and to give a valid receipt for a legacy, has looked to other jurisdictions where similar problems have been resolved. Taking comfort from those decisions it has decided that the foreign beneficiary of full age and capacity in the country of his domicile, whilst a minor in the country of the testator’s domicile, may give a valid receipt for his inheritance. On the other hand, a foreign plaintiff of the same age would not be able to sue in the Royal Court of Jersey other than through or by a guardian ad litem. Richard Michel is an advocate of the Royal Court and the senior partner of Messrs. Crills, P.O. Box 72, 44 Esplanade, St. Helier, Jersey JE4 8PN. |