1985-1986 SILR 252

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 180 of 1986

IN RE V (AN INFANT)

High Court of Solomon Islands 
(Ward C.J.)
Civil Case No. 180 of 1986

30 October 1986 at Honiara
Judgment: 30 October 1986

Adoption - domicile of choice - test - intention to reside indefinitely

Facts:

The applicants applied for the adoption of the female applicant’s nephew. Section 1 of the Adoption Act 1958, however, requires that applicants for adoption must be domiciled in Solomon Islands and a question arose as to the male applicant’s domicile. The male applicant first came to Solomon Islands as a Peace Corps Volunteer in 1977, married the female applicant in custom in 1979 and legally married her in 1984. He had resided in Solomon Islands for nine years, but remained a citizen of his domicile of origin the U.S.A.

Held:

1. In deciding whether domicile of origin has been supplanted by a later domicile of choice, the burden of proving the change lies on the applicant and it is a heavy one where the background and culture of the applicant are so different from that found in Solomon Islands.

2. Residence for nine years is evidence, but by itself it is insufficient to establish to the satisfaction of the court a present intention to reside indefinitely.

3. Based on the applicant’s realistic and thoughtful assessment of his position, the applicant was found to have the present intention to remain in Solomon Islands indefinitely thereby adopting Solomon Islands as his domicile of choice. Thus he was entitled to apply for an adoption order jointly with his wife.

Accordingly, and as it was in the best interest of the child, the order was made as prayed.

No cases considered

Andrew Radclyffe for the Applicants.

Ward CJ: This is a straightforward adoption case save for the question of domicile.

The applicants were married at Honiara Magistrates Court on 31.1.84 but prior to that there had been a custom marriage for more than 5 years.

The infant, who is now 10 years old, is the nephew of the female applicant.

Reports by the medical authorities and the guardian ad litem are satisfactory and make it clear that an order would be in the best interests of the infant. He has been, to all intents and purposes, their child since a short time before his first birthday. He feels that the applicants are his parents and it is apparent any change in the present position would be a severe disruption in the life of a normal, happy child of the family.

The question to which I have referred is the domicile of the male applicant. Section 1 of the Adoption Act 1958 which applies in the Solomon Islands limits the granting of adoption orders to applicants domiciled in this country.

The Applicant was born in the USA and first came to the Solomon Islands as a Peace Corps volunteer in October 1977. He remains a US citizen and clearly his domicile of origin is the USA.

I must decide whether that domicile has been supplanted by a domicile of choice in this country. The burden of proving the change lies on this applicant and is a heavy one where, as here, his background and culture are so different from that found in the Solomon Islands. That he has been resident here for 9 years is evidence but, by itself, is insufficient to establish the necessary animus manedi. I must be satisfied, on the situation as a whole, he has a present intention to reside here indefinitely.

I was impressed by the applicant’s evidence. I do not recite it here and simply note that he did not resort to glib assurances but gave a careful, thoughtful assessment of his position. He still acknowledges his cultural and family links with the USA and his need at least to visit there in the future. That is a realistic aspiration. Similarly realistic is his view of the uncertainty of his position here from the point of view of the powers of the Executive.

I was also impressed by the fact that his assessment of the future was so firmly tied to his family plans. He approached this in a realistic and understanding way based, not just on his own situation, but of other Peace Corps volunteers who had taken Solomon Island wives back to the USA.

I formed the clear impression that he does intend to remain here indefinitely, if possible, and it is his intention that is important so long as it is based on a realistic possibility.

I am satisfied that he has adopted a domicile by choice in the Solomon Islands and is, therefore, entitled to apply for an adoption order jointly with his wife.

As I have said, it is clearly in the infant’s interest and I make the order as prayed.