DOMICILE

Questions affecting the personal status of a human being should be governed constantly by one
and the same law, irrespective of where s/he may happen to be or of where the facts giving rise
to the question may have occurred. In England and most common law countries questions
affecting status are determined by the law of the domicile. Such questions are those affecting
family relations and family property. The law that will govern such matters is called the personal
law. In some European countries the law of an individual’s nationality and not his domicile,
would be the personal law.

Identifying a person’s domicile is necessary to connect him with a legal system for legal
purposes. The place of birth is an inadequate factor by which to identify the personal law of the
propositus.

When the domicile of a person connects him to a country it is not necessary to identify a specific
part of the country. It is sufficient for private international law to point to the country. Note that a
state may not necessarily coincide with the notion of ‘country.’ A unitary state, a state where the
law is the same throughout, e.g Jamaica, Belize, Barbados, Sweden, Italy and France meet the
requirement of ‘country.’ States with separate legal systems such as the states comprising the
USA are individual ‘countries’ as are, England, Scotland, Northern Ireland and Wales, the
constituent countries of the United Kingdom. It means Scotland and Northern Ireland; and New
York and Florida are as much foreign countries to each other as are countries such as Italy and
France.

Underlying the concept of domicile is an attempt to identify a person’s permanent home. Lord
Cranworth supplied this definition in Whicker v Hume [1858] 7HLC 124, 160: “by domicile we
mean home, the permanent home, and if you do not understand your permanent home, I’m afraid
that no illustration drawn from foreign writers or foreign languages will very much help you to
it.” Yet a person’s permanent home is not always easy to identify. The example is given by
David McLean:

An Englishwoman aged 70 years now widowed after living all her life in England, goes
to New Zealand to live with her married daughter; although she may never return to
England, is she not likely to regard England as her home country?1

Some persons may be domiciled in a country which is not their home and perhaps never will be.

Domicile diverges from the notion of permanent home. The elements required for the acquisition
of a domicile go beyond those required for the acquisition of a permanent home.
1. No person can be without a domicile but can be without a home. A vagrant, for example,
has a domicile but no home.
2. Certain persons, for example children under 18, cannot acquire an independent domicile.
They may have permanent homes in places where they are not domiciled, if the person
upon whom they are dependent is domiciled elsewhere.

1
Morris The Conflict of Laws, page 24

1
 3. No person can at the same time have more than one domicile. (In exceptional
circumstances a person may have more than one domicile, each for a separate and unique
purpose.)

General Principles
1. No person can be without a domicile is stated in Bell v Kennedy (1868) LR 1 Sc & Div
307, 320. The domicile is necessary to connect every person to a country.
2. No person can at the same time have more than one domicile, at any rate for the same
purpose. The same need to connect each person to a country makes this principle
necessary.
3. An existing domicile is presumed to continue until it is displaced by another domicile –
Bell v Kennedy. The burden of proving a change of domicile lies with the one who asserts
it. (Lopes v Ward2)
4. The Caribbean court in which the case is being tried (the forum) will apply its own rules
to determine a person’s domicile.
5. A person’s domicile is a fact to be proved.

Types of Domicile

1. A domicile of origin is assigned by law to everyone at birth. It is not determined by a

person’s preferences. It cannot be destroyed by the person.
2. A domicile of choice is acquired by the combination of residence and intention of
permanent or indefinite residence. Thus, to acquire a domicile of choice in a country a
person must intend to reside in it permanently or indefinitely.
3. A domicile of dependency is the domicile of dependent persons (married women under
the common law,3 children under eighteen and mentally disordered persons). That
domicile is retained for the period of dependency and changes with the domicile of the
person on whom s/he is dependent.

Domicile of Origin
At birth every person involuntarily acquires a domicile of origin. It is determined by status and
parentage and not by place of birth. The following rules were laid down in Udny v Udny (1869)
LR 1 Sc&div 441):
 A legitimate child takes as his domicile of origin the domicile of his father at the time of
birth. He takes the domicile of his mother if he is illegitimate or if he is legitimate and his
father dies;
 Foundlings have a domicile of origin in the country in which they are found; and
 Domicile of origin may change as a result of adoption, but not otherwise.

Legislative Intervention
The Status of Children Act 1976, Jamaica was enacted to remove legal disabilities of children
born out of wedlock. Regrettably, s.3 (4) makes the domicile of the child unaffected by the
changes designed to remove the disabilities.

2
Unreported June 11, 1993 High Court of T&T (HC 609A/1991).
3
MCA Jamaica, s. 34 (a) the domicile of a woman who is, or has at any time been married, shall be determined as if
she had never been married.

2
Tenacity
A domicile of origin cannot be lost by lightly spoken words or mere abandonment. This position
was to protect the early Englishmen who left England to visit the colonies hoping to amass
wealth should not lose the protection of the laws of Britain. A domicile of origin can only be lost
by the acquisition of a domicile of choice as illustrated in Bell v Kennedy. In this case a wealthy
cultivator lived in Jamaica and had a Jamaican domicile of origin. He was upset with the
abolition of slavery and left Jamaica for the United Kingdom in 1837, never to return. A year
later he was still uncertain where in the United Kingdom he should settle. The House of Lords
held that in light of his uncertainty about where to settle, he retained his Jamaican domicile of
origin. John Smith, a Scotsman who, in Jopp v Wood, lived for 25 years in India retained his
Scottish domicile of origin because of his alleged intention to return of Scotland. The testator in
Re Fuld (No. 3) retained his German domicile of origin, even after living an itinerant lifestyle
from age 18 until his death at 41 years.

In Unwin v Unwin the propositus, argued successfully that he had not lost his domicile of origin
in spite of the fact that he left Canada with his wife and children and lived in Trinidad and
Tobago for over 15 years. In Trinidad and Tobago he worked and purchased land. He made visits
to Canada and schooled his children there. Rees J said: “I find the evidence inadequate for me to
conclude that the husband formed a definite intention to choose Trinidad as his permanent home
in preference to Canada, his domicile of origin.” The Supreme Court of Trinidad and Tobago had
no jurisdiction to hear Mrs. Unwin’s petition for divorce.

See Chanderpaul v Chanderpaul4, Mohabir v Bismill5, Thorne v Board of Education and

Darrell,6 Hulford v Hulford7 and Cedric Liburd v Hamilton 8

The Revival Doctrine

At common law a domicile of origin is ineradicable. It means that it is never extinguished but is
merely suspended upon the acquisition of another domicile. The domicile of origin revives upon
the loss of the domicile which displaced it in the first place.

Udny v Udny illustrates the doctrine at work. The court held that Colonel Udny had acquired a
domicile of choice in England during his 32 years of living there. Once he left England for
France he lost his English domicile of choice and because he did not acquire a new domicile of
choice immediately, his Scottish domicile of origin revived. Once a domicile of choice or
dependency is lost and no new domicile immediately fills the gap, then the suspended domicile
of origin returns.

The revival doctrine is an English rule. Said another way, a domicile of origin is never
completely obliterated, but is simply placed on hold. When a person changes his or her domicile
of choice, and then loses that domicile, the domicile of origin revives.

4
GY 2010 HC 10 (Chang CJ (Ag.))
5
[1922]Reports of Decisions in the Supreme Court of British Guiana 54.
6
[1866-1904] Windward Island Court of Appeal Reports 148
7
1961 4 WIR 51
8
Unreported Dec. 5, 2011 HC Civ Appeal Nos 17& 18/2010 at 11.

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In the U.S. the rule is different. An existing domicile continues until a new one is formed; the
domicile of origin never revives to take up the slack.

Some Caribbean countries rejected the doctrine of revival (Barbados, Guyana, and Trinidad and
Tobago). For these countries any existing domicile acquired in accordance with the legislation
continues until a new domicile is acquired.

Domicile of Choice
Every independent person, namely a person who is not under a disability or mentally disordered,
can acquire a domicile of choice by the coincidence of residence and intention of permanent or
indefinite residence. The residence and intention must occur before the law will recognize a
change of domicile. It does not mean that that there need be unity of time in their concurrence.
The intention may precede or succeed the establishment of residence. As long as it can be proved
that the propositius meets the requirements for both residence and intention then he may prove
that he has acquired a domicile of choice.

Residence
Residence in a country for the purposes of the law of domicile means “physical presence as an
inhabitant of it” as explained in IRC v Duchess of Portland. In that case, the taxpayer had a
Canadian domicile of origin. She married in 1948 and acquired an English domicile of
dependency. She retained links with Quebec, visiting each year and keeping a house. It was
agreed that when her husband retired they would both live in Quebec. The court held that she had
not met the requirements of residence in Quebec because during her visits to Quebec she was not
there as an inhabitant. She had not lost her English domicile of dependency.

It is not necessary that residence should be of long duration. The duration, long or short, will not
result in the acquisition of a domicile of choice if the intention is lacking. In IRC v Bullock it was
held that a Canadian who had lived mainly in England for forty years had not acquired an
English domicile of choice because he intended to return to Canada on the death of his wife. The
court held in Jopp v Wood that the propositus who had gone to India and resided there for 25
years had not acquired an Indian domicile of choice because he always intended to return to
Scotland, his birthplace. In an American case, White v Tennant 8SE 596 [1888], a part of a day
was enough. An immigrant can acquire a domicile immediately on arriving in the country if he
or she intends to settle. That mere arrival in the country will satisfy the element of residence was
settled in Hodgson v DeBeauchesne (1858) 12 Moo PCC 285, 330. In that case the court said the
mere arrival of an emigrant with his family in Australia, after winding up his affairs in the
country of his origin with the intention of settling in Australia, satisfied the element of residence.

Intention
Intention or the animus manendi is the intention to reside permanently or indefinitely in a
country, that is not for a limited periods or particular purpose. In Udny v Udny, Lord Westbury
said the intention has to be to reside “for an unlimited time.” If the person will leave upon the
occurrence of a contingency, this possibility will be ignored if the contingency is vague and
indefinite (e.g. winning the lottery), but if it is clearly foreseen and reasonably anticipated (e.g.
coming to the end of employment), it may prevent the acquisition of a domicile of choice. The
nature of the intention was discussed by Scarman J in Re Fuld’s Estate:

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 “If a man intends to return to the land of his birth upon a clearly foreseen and reasonably
anticipated contingency, e.g. the end of his job, the intention required by law is lacking:
but, if he has in mind only a vague possibility, such as making a fortune…such state of
mind is consistent with the intention required by law.”

Re Furse [1980] 3 All ER 838 dealt with an American who spent the last 39 years of his life
(until age 80) on a farm in England. He declared an intention to return to the U.S. if he became
unable to farm. The court held that the contingency (returning to the U.S.) was so vague and
indefinite that it did not prevent acquisition of an English domicile of choice. The decision
suggests the stated intention to return must be strong as well as feasible.

In IRC v Bullock where the husband intended to return to Canada to live permanently if his wife
predeceased him, it was held that the husband did not acquire an English domicile of choice
since there was a real possibility in view of their ages, of this happening.

Fentiman9 has argued that Re Furse and other cases indicate a shift toward understanding
domicile as the place with which an individual has the most real and substantial connection,
irrespective of statement of intended future plans.

In Winans v. Att.-Gen (1901) 65 JP 819 the court had to decide if the contingency was no more
than a vague possibility. The propositus was born in the U.S.A and was domiciled in Maryland
or New Jersey. For health reasons, he spent the last 37 years of his life in England, living in
furnished houses and hotels. He hated England and planned to move back to Maryland to build a
fleet that he thought would give the U.S.A naval superiority over English trade.

Six judges expressed the view that he died domiciled in England. The House of Lords, two to
one, had a different view. Lord MacNaghten said “When he came to this country (England) he
was a sojourner and a stranger, and he was I think a sojourner and a stranger in it when he died.”
Lord Halsbury was “unable to make up his mind, and fell back on the presumption of
continuance” (i.e., a U.S. domicile continues since no intent to settle in England had been
proven).The House of Lords therefore held that Winans never lost his domicile of origin.
Consequently he remained domiciled in U.S.

The case Ramsay v. Liverpool Royal Infirmary [1930] AC 588, highlights the need for the
requisite intention to coincide with the change of residence. It also demonstrates the strength of
the presumption in favor of continuance of the domicile of origin. The facts showed that Bowie
was born in Scotland and his domicile of origin was Scotland. He moved to the U.K. and
“sponged on his” siblings, and then died unmarried after 36 years in the U.K. He left the U.K.
only twice, once on a short visit to the U.S. and once on a short holiday to the Isle of Man. He
“expressed his determination never to set foot in Glasgow again, and arranged to be buried in
Liverpool.” The court found that Bowie died domiciled in Scotland. The rationale for the
decision was that Bowie’s life was so “colorless” that he lacked the intent to change his
domicile.

9
Morris: The Conflict of Laws, p. 32

5
A conditional intention will not suffice either. In Cramer v Cramer [1987] 1 FLR a married
woman with a French domicile of origin went to England intending to remain there and marry an
English doctor, who was already married. She did not acquire an English domicile of choice. The
wife’s intention to change her domicile had not yet crystallized into a certainty since it was
conditional upon her being able to marry the Englishman. Had she intended to stay in England
whether she married the said Englishman or not, she would have had the requisite intention.

Evidence of Intention
Intent is a factual determination, based on “tastes, habits, actions, ambitions, health, hopes and
projects” Mark v Mark [2005] 2FLR 1193. Every event and incident in a person’s life is a
relevant and an admissible indication of his/her state of mind. No one indicator is of constant
value for every case varies in its circumstances. A factor of great importance in one case may be
of little weight in another.

Declarations of Intention
In Ross v Ross10 Lord Buckmaster on the issue of declarations as to intention said that they “are
rightly regarded in determining the question of a change of domicile, but they must be examined
by considering the persons to whom, the purposes for which, and the circumstances in which
they are made, and they must further be fortified and carried into effect by conduct and action
consistent with the declared expression.”

 How important are declarations of intention?

 They are not dispositive.
 Also look to such factors as: where and how long the individual lived;
whether the place was furnished, rented, or non-permanent; whether one’s
spouse lived there too; whether the individual voted in elections there,
arranged to be buried there, and participated in the local life there.

Domicile of Special Categories of Persons

Lord Westbury in Udny v Udny said that the court must be satisfied in any claim that a domicile
of choice has been acquired, that the residence must be “freely chosen and not prescribed or
dictated by any external necessity, such as duties of office, the demands of creditors, or relief
from illness.” It means that certain categories of persons who go to another country such as
persons liable for deportation; fugitives from justice; refugees; invalids; diplomats and members
of the armed forces are less likely to form the intention to remain in that country.

Prisoners
A prisoner normally retains the domicile he possessed before confinement. But he can form an
intention to reside permanently or indefinitely in which case he acquires a domicile of choice
there. He can have a change of domicile if he is imprisoned or exiled for life: Burton v Fisher
(1828) Milw 183.

Persons Liable to Deportation

A person who resides in a country from which he is likely to be deported may lack the necessary
intention because his residence is precarious. He is unlikely to be able to form an intention to
10
[1930] AC 1, 6-7

6
remain. But if he forms the necessary intention, he acquires the domicile of choice. Once a
person has acquired a domicile of choice he does not lose it merely because a deportation order
has been made against him. In Cruh v Cruh [1945] 2 All ER 545 Lord Denning held that a
person ordered to leave England via a deportation order retained his domicile in England until
the order was carried out. He loses it only when he is actually deported.

Refugees and Fugitives

There is a presumption against a change of domicile but it was accepted in Winans that “what is
dictated by necessity in the first instance may afterwards become a matter of choice.”

If a political refugee intends to return to the country from which he has fled as soon as the
political situation changes, he retains his domicile there. He does not retain his domicile if the
desired political change is so improbable that this intention is discounted. If his intention is not to
return even when the political situation has changed, he can acquire a domicile of choice in the
country to which he has fled. Contrast the cases of Re Lloyd Evans [1947] Ch 695 and May v
May [1943] 2 All ER 146. In the former case, an Englishman with a Belgian domicile of choice
returned to England very reluctantly because of a German invasion and for four years lived in
furnished flats in England until he died in the fourth year. He always intended to return to
Belgium after the war. The court held that he retained his Belgian domicile. In May v May, a Jew
fled from Germany in England to escape persecution by the Nazis. He intended to emigrate to
the USA but his hope of doing so was frustrated by the outbreak of war. A year or so later, in
1941, the idea of going to the USA faded gradually. He declared he would never return to
Germany even if the Nazis were overthrown. It was held that he had acquired an English
domicile of choice by the beginning of 1942

In the case of a fugitive from criminal justice, the intention to abandon domicile will readily be
assumed, unless the punishment he seeks to escape is trivial or there is a relatively short period
of prescription barring liability to punishment i.e. the wrongdoer may return home in safety - Re
Martin [1999] P 211. In Re Martin a French professor who had committed a crime in France fled
to England and stayed for twenty years. Two years after he could no longer be prosecuted in
France he returned there. It was held that he acquired an English domicile of choice six years
after his arrival in England.

Similarly, in Moynihan v Moynihan (Nos 1 and 2) [1997] 1FLR 59, it was held that the
propositus, who had left the UK to avoid arrest on serious fraud charges, had, at his death,
acquired a domicile of choice in the Philippines, where he had lived for 20 years, built up a
thriving business, acquired property, married and had children.

In the same vein, a person who leaves a country in order to evade creditors may acquire a
domicile of choice in the country to which he has fled. If, however, he plans to return as soon as
he has paid or otherwise gotten rid of his debts, he would not have had a change of domicile.

Invalids
A person who goes to a country for the temporary purpose of undergoing medical treatment there
clearly lacks the necessary intention for a change of domicile. The objections are:
 The residence has been taken up for a special motive; and

7
  It may not be freely chosen.

These factors make it improbable that a domicile has been acquired. In Re James (1908) 98 LT
438 a man was forced to live in South Africa upon doctor’s order. It was necessary to prolong his
life (while retaining ownership of a farm in Wales). It was held at his death that he kept his
English domicile. In Lopes v Ward the court heard that the propositus went to the USA for
medical treatment and died there. He never returned to Trinidad and Tobago, his domicile of
choice, because his health had not improved before he died. The court found that American
citizenship of the propositus was not sufficient to prove a change of domicile of choice. He died
domiciled in Trinidad and Tobago.

However, someone who settles in a new country because he believes he will enjoy better health
there may well intend to live there permanently or indefinitely: Hoskins v Matthews [1855] 8 De
GM &G 13. In this case, the propositus had an English domicile of origin. He had a spinal injury
and left England solely because he thought that the warmer climes of Italy would be beneficial to
his health. In Italy he bought a villa and lived there for twelve years until he died. The court was
of the view that the propositus was acting on a preference and not upon a necessity so it held that
the he acquired a domicile in Italy.

Employees
If a person goes to a country merely to perform the duties of his office or employment, he does
not acquire a domicile of choice there. So when a barrister with an English domicile of origin
was appointed Chief Justice of Ceylon, and he went to Ceylon intending to stay until he had
earned his pension he retained his English domicile (Att-Gen v Rowe [1862] 1 H&C 31).
However, if a person goes to the country not merely to work, but also to settle in it, he does
acquire a domicile of choice as was demonstrated in Thorne v Board of Education and Darrell
[1866-1904] Windward Islands Court of Appeal Reports, 148 and Reid v Reid (19430 Law
reports of British Guiana, 282. In Thorne v Board of Education and Darrell the court considered
the employment of a Wesleyan minister. His appointment was annual and capable of being
terminated at the end of any year. Notwithstanding, the residence under such an appointment was
held to be sufficiently stable as to permit the acquisition of a domicile of choice in Barbados.

In Reid v Reid the propositus was an elder of a church. At the time of the marriage in Jamaica in
1933, the elder was stationed in The Bahamas. In 1938 he was transferred to Barbados where his
wife deserted him. He was posted to Guyana in 1941 and in 1943 petitioned the court for
dissolution of his marriage. He was living in Guyana for less than two years when the court
found that the petitioner had formed the intention of settling there permanently. He therefore had
acquired a Guyanese domicile of choice and the court, as a consequence, had jurisdiction to hear
the petition.

Members of the Armed Forces

It was once thought that members of the armed forces could not, as a matter of law, acquire a
domicile of choice during service. But it is now settled that such a person can acquire a domicile
of choice if that is his intention (Donaldson v Donaldson [1949] P 363).

Diplomats

8
Generally, diplomats do not form the intention of settling in the country to which they have been
accredited. However, if they form the intention of residing permanently or indefinitely, they can,
like everybody else, acquire a domicile of choice in that country (Naville v Naville [1957] (1) SA
280).

Standard of Proof
The standard of proof required to prove that a new domicile has been acquired has been disputed.
Scarman J in Re Fuld said the standard to be adopted is a proof on a balance of probabilities as in
civil proceedings. Sir Jocelyn Simon in Henderson v Henderson expressed the view that the
standard “goes beyond a mere balance of probabilities.” Despite the conflicting the view, it is
agreed that the burden of proof that a domicile of origin is lost is a very heavy one. Scarman J, In
the Estate of Fuld No. 3, expounds on the heavy burden of proof. Evidence is required to satisfy
the judicial conscience that there has been a change. That change cannot be lightly inferred from
“slight indications or casual words.” If the evidence does not satisfy, then the domicile of origin
persists.

Abandonment of Domicile of Choice

A domicile of choice can be lost by abandonment. A person abandons a domicile of choice in a
country by ceasing to reside there and by ceasing to intend to intend to reside there permanently
or indefinitely. It is not necessary to prove a positive intention not to return; it is sufficient to
prove merely the absence of an intention to continue to reside. A domicile of choice is lost when
both the residence and the intention necessary for its acquisition are given up.

In Re Flynn, Errol Flynn left California where he had acquired a domicile of choice, with an
intention of not returning. Bad weather caused him to stop in Jamaica and he at once fell in love
with the island. The courts concluded that Jamaica “was the most enduring love of his life.” He
bought property and wrote a glowing letter to his parents about the "dream spot" that he had
bought and urged them to come to it and "live like kings.” Even though the court heard evidence
of the limited periods of time which Errol actually spent in Jamaica and agreed that such visits
are consonant with holiday visits and with the inspection and management of his property as an
investment it was persuaded that Errol had acquired a Jamaican domicile of choice. The court
noted that during these brief periods Errol embarked on the building of a house on his Jamaican
estate. It was no ordinary house. It was designed on Errol's instructions to meet his detailed
requirements on matters such as the siting of his bedroom and the swimming pool, and the
provision of a storage vault with humidity control for Errol's films. The judge said ; “It seems to
me that Errol had gradually come more and more to treat his property in Jamaica as his home as
well as an investment, a holiday home and a place to retire to. By 1958, the greater part of his
possessions was concentrated there.” Jamaica had become his centre of gravity. He died
domiciled in Jamaica.

Abandonment of a domicile of choice cannot be by intention alone. In Re Raffenel a widow of

English domicile of origin had acquired a French domicile by virtue of marriage and had lived in
France with her husband. After his death she determined to return to and live permanently in
England. She boarded the ferry intending to return to England. She fell ill and had to return to
land where she died. The court held that she died domiciled in France. Intention alone could not
suffice to bring about the change of her domicile of choice.

9
In Zanelli v Zanelli an Italian national, domiciled in England, married an Englishwoman in
England in 1948. Later he deserted her and went back to Italy. Until he gave up residence in
England he was still domiciled in England.

Domicile of Dependency
At common law married women, children and insane persons all had domicile of dependency.
The domicile of a dependent person is the same as, and changes with, the domicile of the person
on whom he or she is, as regards domicile, legally dependent.

Until statutory reforms in England and in the Caribbean countries were effected, there were three
categories of dependent persons: married women, children and mentally disordered.

Married Women
The old rule: Citeria v Citeria [1967] Law Reports of Guyana 170 at 176 was expressed thus:

“a woman, even an infant, automatically acquires on marriage the domicile of her

husband. So long as the marriage is subsisting the wife cannot have a different domicile
from that of her husband, even if they are judicially separated and if the husband changes
his domicile, the wife’s domicile is also automatically changed.”

Thus, in Lord Advocate v Jaffrey, a husband domiciled in Scotland left his wife and went to live
in Australia. He acquired a domicile of choice in Queensland where he got married (bigamously)
to an Australian. The lawful wife remained in Scotland. It was held that she died domiciled in
Queensland.

A new rule was introduced by statutory reform: married women ceased to be dependent persons
but the statute is not retrospective and many women who married before it came into operation
will still have their husband’s domicile.

Statutory Reform

Winston Anderson11 observes that statutory reform has been very uneven. Sweeping reforms
have occurred in Barbados, Guyana and Trinidad and Tobago. Statutory reform in the Bahamas
and in Jamaica has been restricted to dealing with the wife’s domicile of dependency in
matrimonial proceedings. A look at the Matrimonial Causes Act 1989 (Jamaica) s. 34 addresses
the reform in matrimonial proceedings:
34- (1) For the purposes of this Act, except section 24 (1) (c) and section 24 (2) (c) –
(a) The domicile of a woman who is, or has at any time been, married shall be
determined as if she had never been married;
(b) The domicile of a person who has not attained the age of eighteen years but who is, or
at any time has been, married shall be determined as if that person had attained the
age of eighteen years at the date of marriage, or, where the person has been married
more than once, at the date of the first of such marriages.

11
Elements of Private International Law p. 62

10
 (2) For the purposes of this Act, except section 24 (1) (c) and section 24 (2) (c), the domicile
of a person-
(a) at a time before the 1st day of February, 1989, shall be determined as if this Act had
not been enacted; and
(b) at any time after the 1st day of February, 1989, shall be determined as if this Act had
always been in force.
(3) Nothing in this section affects the jurisdiction of any court in any proceedings
commenced before the 1st day of February, 1989.

Children
Citeria v Citeria states the rule governing a child’s domicile of dependency. It says that the
domicile of a legitimate child follows that of his father whereas an illegitimate child receives that
of his mother. It is also the case that the domicile of the child born illegitimate but who is
subsequently legitimated, changes with that of his father.

The domicile of a child under 18 years is arrived at thus:

 If legitimate, it is that of his father;
 If he is illegitimate, it is that of his father from the time of the legitimation (remember
such a child will have his mother’s domicile as a domicile of origin);
 If he is illegitimate or his father is dead, it is that of his mother;
 If he has no parents, his domicile cannot be changed; and
 If he is adopted, his domicile is determined as if he were the legitimate child of the
adoptive parent or parents.

One anomaly that must be understood is that a mother who changes her domicile will only
change the domicile of a child dependent on her if what she does furthers the child’s interest.
Fathers are not so constrained. In Re Beaumont [1893] 3 Ch 490, a widow, domiciled in
Scotland with her minor children, remarried and went to live with her second husband in
England, taking all but one of the children with her. The one left behind was in the care of his
aunt. The domicile of the child left back in Scotland continued to be Scottish. This case has
called into question the rule that after the death of the father, the child’s domicile changes
with that of his mother. It is clear that the change from the father’s to the mother’s domicile
may not be automatic.

Does Re Beaumont allow the child’s domicile to change with that of another adult other than
parents or adopted parents? In Bermudez v Bermudez the Supreme Court of Trinidad and
Tobago held that a person in loco parentis could not change the domicile of the child.

Hope v Hope [1968] NI 1 decided that if the parents had divorced and custody of the child
was awarded to the mother, that child may thereafter take the domicile of the mother. This is
in keeping with the all too frequently occurring reality of fathers reneging on their
responsibility to their children. The court in Shanks v Shanks [1965] SLT 330 was of a
different view. It held that the “general rule that a child’s domicile is derived from its father
does not suffer an exception even the child is in the custody of its mother after the parents
have been divorced.” Winston Anderson hopes that “Caribbean jurisdictions would prefer the
former decision.”

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 At common law a child’s domicile of dependency exists until s/he reaches the age of
majority. In Jamaica the age of majority is eighteen years.

The Mentally Disordered

If he was born mentally disordered or he becomes mentally disordered while a dependent
child, his domicile, as long as he remains mentally disordered, continues to change with the
domicile of the person upon whom the child is dependent. This is the position assumed in
Sharpe v Chrispin (1869) LR 1 P&D 611. Where he becomes mentally disordered after
reaching the age of majority, it is likely that the domicile remains as at the time of the illness
since that person lacks the capacity to form the requisite intention to change it.

Three concepts:
Nationality - the country where one has citizenship.
Residence – important for personal jurisdiction
Domicile – important for choice-of-law

- Nationality
 Birth: Every person born in a Caribbean state becomes that state’s citizen
(normally)
 Descent: traditionally if the father is a citizen, but those laws are being reformed
to allow descent through the mother, too
 Marriage: to a Caribbean man, traditionally, but that too is being reformed (as in
Jamaica).
 Naturalization: normally requires residence and/or employment service in
government for a period of time
 Adoption

- Residence
 Definition is needed for purposes of the court exercising jurisdiction.
 Is mere physical presence sufficient? (will return to under jurisdiction).

 Ordinary residence:
 “residence in a place with some degree of continuity and apart
from accidental or temporary absences.”
 “a person’s abode in a particular place which he has adopted
voluntarily and for settled purposes, as part of the regular order of
his life for the time being, whether of short or long duration.” Shah
v Barnet London Borough Council [1983] 2 AC 309; Re Eskine
(1893) 10 TLR 32; IRC v Lysaght[1928] AC 234.

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