Domicile

Personal Connecting Factors: Domicile

Personal connecting factors are to be taken into consideration by courts, in determining the question of jurisdiction and choice of law.

In England and most common law countries, the traditional personal connecting factors is domicile (lex domicilii), which has been traditionally defined as one’s permanent home (Whicker v Hume (1858)). A personal domiciled in the country where he as his permanent home. As permanent members of that community it is only right that its law be applied to them because it reflects the rationale that individuals have freedom to choose where they wish to live and, thus, indirectly, choose the law to which they are to be subject (Clarkson and Hill).

Today, a working definition of domicile is ‘the country that a person treats as his permanent home and to which he has the closest legal attachment’.

It shall be noted that the use of domicile is not restricted to the conflict of laws; it is also employed in law of taxation. On the other hand, it has a dominating role in family and matrimonial property law and roles in other cases such as capacity of persons to make contracts.

There are three kinds of domicile: domicile of origin, domicile of dependence and domicile of choice.

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Basic principles for the concept of domicile

There are three basic principles in regard to the concept of domicile:

• The law attributes a domicile to everyone (Udny v Udny (1869)), every person have a domicile and only one domicile (Ramsay v Liverpool Royal Infirmary (1930)).
• Different countries may interpret domicile differently. The English domiciliary law is classified by the lex fori. Thus, English courts will normally apply their own rules of domicile to determine the domicile of a person (Re Annesley (1926)).
• An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Winans v AG (1904)). The burden of proving a change of domicile lies on the person alleging the change.

The standard of proof required goes beyond a mere balance of probabilities (Henderson v Handerson (1843)). However, the courts in recent years generally accepted that the standard of proof is the civil standard of a balance of probabilities and ‘the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indication or casual words’ (Re Fuld’s Estate (1965) quoted Megarry J in Re Flynn).

Domicile of origin

The domicile of origin is the domicile which a person obtains at birth.

According to Udny v Udny (1869), a legitimate child acquires his domicile of origin by following the domicile of his father at the time of his birth; an illegitimate child acquires his domicile of origin by following the domicile of his mother.

If an illegitimate child is subsequently legitimated, his domicile remains of the mother’s domicile (Re Luck’s Settlement Trusts (1940)).

If the child is a posthumous legitimate child (born after the death of the father), his domicile of origin follows the domicile of his mother (Dicey and Morris).

A foundling’s domicile of origin is the place where he was found (Re McKenzie). In Re McKenzie (1901), an illegitimate child whose mother’s domicile was unknown was treated as found in its country of birth and therefore having its domicile of origin there.

The domicile of origin can never be lost but it will be held in abeyance. Hence, if a person leaves the country of his domicile of origin, intending never to return it, he continues to be domiciled there until he acquires a domicile of choice in another country (Udny v Udny (1869)).

If a person leaves the country of his domicile of choice, intending never to return it, he ceases to be domiciled in that country, unless and until he acquires a new domicile of choice, his domicile of origin revives to fill the gap (Udny v Udny (1869) and Tee v Tee (1974)).

The domicile of origin can be changed as a result of adoption, but not otherwise.

Domicile of dependence

A domicile of dependence is the domicile conferred on legally dependent persons by operation of law.

Until 1 January 1974 (where Domicile and Matrimonial Proceedings Act 1973 has not yet come into operation), there were three categories of dependent persons: married women, children and the mentally disordered.

You can download Domicile and Matrimonial Proceedings Act 1973 here: https://www.legislation.gov.uk/ukpga/1973/45/pdfs/ukpga_19730045_en.pdf

Domicile of dependence: Married woman

Until 1 January 1974, a married woman was dependent for the purposes of the law of domicile upon her husband. So it was the same as, and changed with, the domicile of her husband. This applied even where they were living apart and had done so for many years (Re Scullard (1957)). 

Married women are now capable of having an independent domicile of choice (Section 1(1)). The Act is not retrospective therefore women married before 1 January 1974 remain to have their husband’s domicile.

According to section 1(2), a women married before 1 January 1974, would have her husband’s domicile of dependence, and she is treated as retaining that domicile (as a domicile of choice), unless and until it is changed by acquisition or revival of another domicile either on or after 1 January 1974.

Domicile of dependence: Minor

As I mentioned above, a domicile of origin can never be completely lost as it may revive at some later stage in life, but it may be temporarily replaced by a domicile of dependence until the child reaches the age of 16 or marries before then (section 3(1)).

If a child is illegitimate he takes the domicile of his mother (Udny v Udny (1869)).

If the illegitimate child is later legitimate and his parent are alive and living together, the child takes the domicile of his father.

In a situation where a legitimate child live together with his parents, but his father later dies, the child thereafter normally takes the domicile of the mother (Potinger v Wightman (1817)). If the mother later acquires a new domicile and the child is still living with her, the child’s domicile will follow the mother’s.

However if the mother acquires a new domicile and leaves the child in the former country, the child’s domicile doesn’t change with the mother’s (Re Beaumont ). In Re Beaumont (1902), a Scottish domiciliary widow remarried an English domiciliary man (thereby acquiring an English domicile of dependence). She moved to England with her new husband leaving one daughter in Scotland. It was held that the daughter’s domicile remained Scottish. Cheshire, North & Fawcett, Private International Law suggested that a mother in such a case can confer a new domicile on her child in a third country by placing the child there under the care of a competent person.

Where a legitimate child’s parents are alive but living apart:

• If he has a ‘home’ with the mother and no home with his father, his domicile is, and changes with, the domicile of his mother (section 4(2)(a)).
• If the above applied to him at any time and he has not since had a ‘home’ with his father, his domicile is, and changes with, the domicile of his mother (section 4(2)).
• If at the time of his mother’s death, his domicile was the same as his mother because or either of the above, and he has not since had a home with his father, the domicile of the child is the domicile his mother last had before she died (section 4(2)(b))
• Section 4(3) states that if a legitimate child has, during his father’s lifetime, follows his mother’s domicile and the mother later dies, the child’s domicile remains that od the mother on her death, unless and until he has a ‘home’ with his father.

According to Clarkson and Hill, a ‘home’ combines notions of both physical presence and an emotional link. It is appropriate to consider the duration and regularity of the residence and whether the child regards the parent’s house as his ‘home or proper abode’ (Law Commission Report No.168 and Re Y).

Section 65(1)(a) of the Adoption and Children Act 2002 provides that adopted child is for all purposes to be treated as if he were the natural legitimate child of his adoptive parents. Hence, the domicile of origin can be changed as a result of adoption, but not otherwise.

After the death of both parents of a legitimate child, or of the mother of an illegitimate child, the child’s domicile remains unchanged until he is old enough to have an independent domicile (Dicey and Morris).

Section 3(1) of the Domicile and Matrimonial Proceedings Act 1973 provides that a child becomes capable of acquiring an independent domicile upon reaching the age of 16 or by marrying under that age. Before they cease to dependent on their parent and acquire a valid domicile of choice, their domicile of dependency remains.

According to the Law Commission Report of 1987, if a child studies overseas and lives with a guardian, and receiving financial support from his parent, the domicile of dependency will remain to be that of the parents.

Domicile of dependence: Mentally disabled

A mentally disordered person who is incapable of forming the necessary intention to acquire a domicile of choice retains whatever domicile he had immediately before becoming incapable (Urquhart v Butterfield (1887)).

If the mentally disabled was born mentally disordered or becomes such while a dependent child, he will be treated as if he were a minor even after he has attained the age of 16. As long as he remains mentally disordered, he continued to be a dependent child.

Domicile of choice

A domicile of choice is a domicile which an independent person acquires by residing in a country with the intention of settling there permanently or indefinitely. The two factors must co-exist for a domicile to be acquired (Udny v Udny (1869)).

They are normally referred to as factum and animus. Factum is fact or residence, while animus is intention.

According to Udny v Udny (1869),

• A domicile of choice can be abandoned by a person when he or she ceases to reside in a country and ceases to intend to reside there permanently or indefinitely,
• When a domicile of choice is abandoned, before a new domicile of choice is acquired, the domicile of origin revives by operation of law (doctrine of revival).

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Domicile of choice: Residence

Residence means physical presence as an inhabitant (IRC v Duchess of Portland (1982)). It need not be of long duration, an immigrant can acquire a domicile of choice immediately on momentary arrival, even a fleeting presence will be sufficient (Bell v Kennedy (1868)).

In Plummer v IRC (1988), the tax payer had an English domicile of origin. Her family moved to Guernsey, but she remained in UK. She visited her family frequently and claimed that she regarded Guernsey as her permanent home and would like to live there permanently, after getting sufficient working experience in England. It was held that she did not acquire a domicile of choice in Guernsey since she had not lived there on a permanent basis.

In IRC v Duchess of Portland (1982), a Canadian citizen had homes in Quebec and in England. She has a domicile of origin in Quebec, and later acquired an English domicile of dependence by marrying an Englishman. It was told that she hoped to persuade her husband to live in Quebec on his retirement. She spent ten to twelve weeks every year in Quebec and maintained her links with Canada with a view to retire there. It was held not sufficient to make her an inhabitant of Quebec because she only had the intention of residing permanently in Quebec at some future time. This rule seems to exclude the presence merely as a visitor.

In a situation where a person has two homes, he is an inhabitant of the country in which he has his chief residence (Plummer v IRC (1982)).

A domicile of choice cannot be acquired by illegal residence (Puttick v AG). In Puttick v AG (1979), a member of a German terrorist group, came to England on a forged passport. It was held that even she had the necessary intention to remain in England permanently; she had not acquired an English domicile because her residence, having been obtained by fraud, was illegal.

However, it was claimed that the view that residence in England originating in unlawful entry was incapable of sustaining en English domicile of choice has now been abolished (Mark v Mark). In Mark v Mark (2005), the Nigerian wife was held to be English domiciliary even if her continued presence In UK was illegal under the Immigration Act 1971. The court held that the legality of a person’s presence in the UK was completely irrelevant and there was no reason in principle why a person whose presence in the UK was unlawful could not acquire a domicile of choice in this country.

Domicile of choice: Intention

For domicile of choice to be acquired, one’s residence must be accompanied by the intention to reside there permanently or indefinitely (Re Annesley (1926)). Evidence of such an intention can be drawn from the surrounding circumstances of the case (Re Flynn).

In a situation where a person intends to remain in the country unless and until the happening of some event, which may or may not happen; if it does happen, then he will, or may, leave:

• Older cases suggested that no domicile could be acquired. If he foresaw any event that would cause him to leave, no matter how remote or unlikely that event, the intention required by law was lacking (Udny v Udny (1869)).
• Recently, many cases have taken a more flexible and realistic approach so that today if one has in his mind such a contingency does not necessarily mean that he does not have the intention to remain permanently. A distinction shall be made between a clearly foreseen and reasonably anticipated contingency (for example coming to the end of employment) and a contingency that is vague and indefinite (for example winning the lottery). The latter would not affect the acquisition of the domicile of choice (per Scarman J in Re Fuld’s Estate (No.3) (1965)).

In Lawrence v Lawrence (1985), a propositus loved Brazil but was prepared to leave if there were to be a revolution there and things got ‘badly out of hand’. It was held that this contingency was too vague to prevent him from acquiring a domicile in Brazil.

In IRC v Bullock (1976), a man with a domicile of origin of Canada, has lived in England for 44 years and married an English woman. His intention was to remain in England unless his wife died before him, in which event he would return to Canada. The court held that he had not acquired a domicile of choice in England because he was planning to leave upon a definite (not vague) contingency and there was a ‘sufficiently substantial possibility of the contingency happening’.

In Cramer v Cramer, a French domiciliary woman came to England with the hope of marrying her lover and establishing a home there. Her lover was a married man. Her intention to remain was conditional upon her being able to marry him and their relationship lasting until then. It was held that she did not acquire the English domicile of choice because her intention was too speculative and such a mere desire to remain would not suffice.

A long period of absence does not necessarily destroy a domicile of choice and may not do so even if there is indecision about a possible return (Re Lloyd Evans).

Political refugee and fugitives from criminal justice may acquire a domicile of choice. In Re Lloyd Evans, a Belgian domiciliary, a political refugee who had fled to England died before he had decided to return to Belgium or immigrate to Australia. He was held to be domiciled in Belgium because he has an intention to return when the political situation has changed and this is supported by the fact that the said political situation is temporary in nature. Hence, his does not lose his Belgian domicile of choice.

This is to be contrasted with May v May, where a Jewish refugees from Nazi Germany, has successfully acquired an English domicile of choice, as his intention is not to return Germany even when the political situation has changed in favour of him.

If the political refugee has intention to live in the new country permanently or infinitely, he would acquire a new domicile of choice (Re Martin).

In a case of a fugitive from criminal justice, it was suggested that he would be considered as abandon his domicile of choice, unless the punishment he seeks to escape is trivial or there is a relatively short period of prescription barring liability to punishment (Re Martin).

In Moynihan v Moynihan, Mr. Moynihan had left UK to avoid arrest on serious fraud charges and settled down in Philippines for 20 years. It was held that he abandoned his English domiciliary and acquired a domicile of choice in the Philippines.

As a general rule, members of the armed forced (Donaldson v Donaldson), employees who working overseas (AG v Rowe), persons liable to deportation (Szechter v Szechter), prisoners (Re Napoleon) and diplomats do not acquire a new domicile of choice unless they have the intention to reside in that particular country permanently or infinitely.

In Szechter v Szechter, it was stated that if a person wished to remain permanently in a country a domicile would be acquired and it was ‘immaterial that their intentions were liable to be frustrated by the decision of the Secretary of State for the Home Department as to permission for their continued residence here’.

Once a person has acquired a domicile of choice he does not lose it merely because a deportation order has been against him (Cruh v Cruh). He loses it only when he is actually deported.

If a person is forced to leave a country because of his fatal health condition, and out of the health reasons, he does not have the intention to settle in the new country permanently or indefinitely, he does not acquire a domicile there (Re James). However if the health condition was not fatal, but he choices to settle in a new country because he believes he will enjoy better health there, he will acquire a new domicile of choice (Hoskins v Matthews).   

Domicile of choice: Abandoning domicile of choice

A person may lose his domicile of choice if both cessation of residence and cessation of intention are present.

It must be showed that the person has ceased to reside in the country as an inhabitant; a temporary absence is insufficient (IRC v Duchess of Portland).

It must also be showed that he has ceases to intend to reside in the country where he domiciled permanently or indefinitely. If the person has in fact moves to another country, but struggling on whether he shall remain there permanently or indefinitely, his does not lose his domicile of choice until he have make up the decision (Holliday v Musa). This is so even he has residing in the new country for decades (IRC v Bullock).  

As I mentioned above, in cases where he lose his domicile of choice, his domicile of origin revives until he acquires a new and effective domicile of choice (Udny v Udny).

Other personal connecting factors?

Recently, the concept of residence is increasingly used as personal connecting factors in some countries which including England. The idea was introduced by Hague Convention but not defined by it.

It was told that it is primarily a question of fact to be decided by reference to the circumstances of each particular case (Re M).

It is possible to have no habitual residence (but one would have to be a nomad) or have two habitual residence.

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