Law of domicile

. 1. I. INTRODUCTION Domicile which is a private international

law or conflict of laws concept identifies a person, in cases
having a foreign element, with a territory subject to a single
system of law, which is regarded as his personal law. A person
is domiciled in the country in which he is considered to have
his permanent home. His domicile is of the whole country,
being governed by common rules of law, and not confined to a
part of it. No one can be without a domicile and no one can
have two domiciles. A domicile of origin is attributed to every
person at birth by operation of law. This domicile is not
decided by his place of birth or by the place of residence of his
father or mother, but by the domicile of the appropriate parent
at the time of his birth, according as he is legitimate or
illegitimate. It is possible for the domicile of origin to be
transmitted through several generations no member of which
has ever resided for any length of time in the country of the
domicile of origin. When a person is referred to as domiciled in
a country, the expression 'country' is used in private
international law as a term of art denoting, in the words of
dicey, the whole of a territory subject under one sovereign to
one body of law. But in a federation like the United States,
Australia, or Canada, or in a composite State like the United
Kingdom, different systems of law may prevail in different
regions in respect of certain matters. In such cases, each of
the territories governed by a separate system of law is treated,
for the purpose of private international law, as a 'country',
though in public international law or constitutional law it is not
a separate sovereign State. This is, however, not the position in
India. Though a Union of States, and a federation in that sense,
the whole country is governed by a single unified system of
law, with a unified system of judicial administration,
notwithstanding the constitutional distribution of legislative
powers between the Centre and the States. There is no
State-wise domicile within the territory of India. A man who is
domiciled in India is domiciled in every State in India and
identified with a territorial system of legal rules pervading
throughout the country. He is 'domiciled' in the whole of this
country, even though his permanent home may be located in a
particular spot within it . Thus, the concept of “domicile” varies
from country to country and from jurisdiction to jurisdiction.

II. DOMICILE V RESIDENCE The word “domicile” should not

be confused with a simple “residence”. The residence is a
physical fact and no volition is needed to establish it. The
animus manendi is not an essential requirement of residence,
unlike in the case of a domicile of choice. Thus, any period of
physical presence, however short, may constitute residence
provided it is not transitory, fleeting or casual. The intention is
not relevant to prove the physical fact of residence except to
the extent of showing that it is not a mere fleeting or transitory
existence To insist on an element of volition is to confuse the
features of ‘residence’ with those of 'domicile'. A person is
ordinarily resident in a country if his residence there is not
casual or uncertain, but is in the ordinary course of his life. A
man may be ordinarily resident or habitually resident in more
than one place. While 'ordinary residence' is the physical
residence in regard to which intention is irrelevant, except to
show that the residence is not merely fleeting, 'habitual
residence' may denote a quality of endurance longer than
ordinary residence, although duration, past or prospective, is
only one of the many relevant factors, and there is no
requirement of any particular minimum period. If a person
resided there for the specific and limited purpose of education,
he was ordinarily resident in that country, even if his permanent
residence or real home was outside that country or his future
intention or expectation was to live outside that country. The
education, business, profession, employment, health, family, or
merely love of the place are some of the reasons commonly
regarded as sufficient for a choice of regular abode. It is only
lawful residence that can be taken into account. If a man stays
in a country in breach of immigration laws, his presence there
does not constitute ordinary residence. While residence and
intention are the two essential elements constituting the
'domicile of choice' residence in its own right is a connecting
factor in a national legal system for purposes of taxation,
jurisdiction, service of summons, voting etc .
III. IMPORTANCE OF DOMICILE The determination of domicile
of an individual has a great legal significance. It helps in
identifying the personal law by which an individual is governed
in respect of various matters such as the essential validity of a
marriage, the effect of marriage on the proprietary rights of
husband and wife, jurisdiction in divorce and nullity of
marriage, illegitimacy, legitimation and adoption and
testamentary and intestate succession to moveables. The
domicile is the legal relationship between an individual and a
territory with a distinctive legal system, which invokes that
system as his personal law. It is well settled that the domicile of
a person is in that country in which he either has or is deemed
by law to have his permanent home. The notion, which lies at
the root of the concept of domicile, is that of permanent home.
But it is basically a legal concept for the purpose of
determining what is the personal law applicable to an individual
and even if an individual has no permanent home, he is
invested with a domicile by law. There are two main classes of
domicile: domicile of origin that is communicated by operation
of law to each person at birth, that is the domicile of his father
or his mother according as he is legitimate or illegitimate and
domicile of choice which every person or full age is free to
acquire in substitution for that which he presently possesses.
The domicile of origin attaches to an individual by birth while
the domicile of choice is acquired by residence in a territory
subject to a distinctive legal system, with the intention to reside
there permanently or indefinitely. Each person who has, or
whom the law deems to have, his permanent home within the
territorial limits of a single system of law is domiciled in the
country over which the system extends; and he is domiciled in
the whole of that country even though his home may be fixed
at a particular spot within it. In federal states some branches of
law are within the competence of the federal authorities and for
these purposes the whole federation will be subject to a single
system of law and an individual may be spoken of as domiciled
in the federation as a whole; other branches of law are within
the competence of the states or provinces of the federation
and the individual will be domiciled in one state or province
only. The Constitution recognises only one domicile, namely,
domicile in India. Art. 5 of the Constitution is clear and explicit
on this point and it refers only to one domicile, namely,
"domicile in the territory of India. "The legal system, which
prevails throughout the territory of India, is one single
indivisible system. It would be absurd to suggest that the Legal
system varies from State to State or that the legal system of a
State is different from the legal system of the Union of India,
merely because with respect to the subjects within their
legislative competence, the States have power to make laws.
The concept of ‘domicile’ has no relevance to the applicability
of municipal laws, whether made by the Union of India or by
the States. It would not, therefore, be right to say that a citizen
of India is domiciled in one state or another forming part of the
Union of India. The domicile, which he has, is only one
domicile, namely, domicile in the territory of India. When a
person who is permanently resident in one State goes to
another State with intention to reside there permanently or
indefinitely, his domicile does not undergo any change: he
does not acquire a new domicile of choice. His domicile
remains the same, namely, Indian domicile. Moreover to think
in terms of state domicile with be highly detrimental to the
concept of unity and integrity of India .

IV. TYPES OF DOMICILE The law of domicile in India can be

traced under the Indian Succession Act, 1925. The domicile
under the provisions of the Act can be classified under the
following categories:
(i) Domicile of origin, (ii) Domicile of choice, and (iii) Domicile
by operation of law. (i) Domicile of origin

Every person must have a personal law, and accordingly

every one must have a domicile. He receives at birth a
domicile of origin, which remains his domicile, wherever
he goes, unless and until he acquires a new domicile.
The new domicile, acquired subsequently, is generally
called a domicile of choice. The domicile of origin is
received by operation of law at birth and for acquisition of
a domicile of choice one of the necessary conditions is
the intention to remain there permanently. The domicile of
origin is retained and cannot be divested until the
acquisition of the domicile of choice. By merely leaving
his country, even permanently, one will not, in the eye of
law, lose his domicile until he acquires a new one. This
proposition that the domicile of origin is retained until the
acquisition of a domicile of choice is well established and
does not admit of any exception . (ii) Domicile of choice
The domicile of origin continues until he acquires a
domicile of choice in another country. Upon
abandonment of a domicile of choice, he may acquire a
new domicile of choice, or his domicile of origin, which
remained in abeyance, revives. The burden of proving a
change of domicile is on him who asserts it. The domicile
of origin is more tenacious. "Its character is more
enduring, its hold stronger and less easily shaken off. The
burden of proving that a domicile of origin is abandoned
is needed much heavier than in the case of a domicile of
choice. No domicile of choice can be acquired by
entering a country illegally. The domicile of choice is a
combination of residence and intention. Residence,
which is a physical fact, means bodily presence as an
inhabitant. Such residence must be combined with
intention to reside permanently or for an unlimited time in
a country. It is such intention coupled with residence that
acquires him a new domicile. It is immaterial for this
purpose that the residence is for a short duration,
provided it is coupled with the requisite state of the mind,
namely the intention to reside there permanently. If a man
intends to return to the land of his birth upon a clearly
foreseen and reasonably anticipated contingency, such
as, the end of his studies, he lacks the intention required
by law. His tastes, habits, conduct, actions, ambitions,
health, hopes, and projects are keys to his intention. That
place is properly the domicile of a person in which he has
voluntarily fixed the habitation of himself and his family,
not for a mere special and temporary purpose, but with a
present intention of making it his permanent home,
unless and until something (which is unexpected or the
happening of which is uncertain) shall occur to induce
him to adopt some other permanent home . The only
intention required for a proof of a change of domicile is
an intention of permanent residence. What is required to
be established is that the person who is alleged to have
changed his domicile of origin has voluntarily fixed the
habitation of himself and his family in, the, new country,
not for a mere special or temporary purpose, but with a
present intention of making it his permanent home. On
the question of domicile at a particular time the course of
his conduct and the facts and circumstances before and
after that time are relevant . (c) Domicile by operation of
law. (Married women’s domicile). The rules of Private
International Law in India are not codified and are
scattered in different enactments such as the Civil
Procedure Code, the Contract Act, the Indian Succession
Act, the Indian Divorce Act, and the Special Marriage Act
etc. In addition, some rules have also been evolved by
judicial decisions. In matters of status or legal capacity of
natural persons, matrimonial disputes, custody of
children, adoption, testamentary and intestate
succession etc. the problem in this country is
complicated by the fact that there exist different personal
laws and no uniform rule can be laid down for all citizens.
The distinction between matters which concern personal
and family affairs and those which concern commercial
relationships, civil wrongs etc. is well recognised in other
countries and legal systems. The law in the former area
tends to be primarily determined and influenced by
social, moral and religious considerations, and public
policy plays a special and important role in shaping it.
Hence, in almost all the countries the jurisdictional,
procedural and substantive rules that are applied to
disputes arising in this area are significantly different from
those applied to claims in other areas. That is as it ought
to be. For, no country can afford to sacrifice its internal
unity, stability and tranquility for the sake of uniformity of
rules and comity of nations which considerations are
important and appropriate to facilitate international trade,
commerce, industry, communication, transport,
exchange of services, technology, manpower etc. This
glaring Tact of national life has been recognised both by
the Hague Convention of 1968 on the Recognition of
Divorce and Legal Separations as well as by the
Judgments Convention of the European Community of
the same year. Article 10 of the Hague Convention
expressly provides that the contracting States may refuse
to recognise a divorce or legal separation if such
recognition is manifestly incompatible with their public
policy. The Judgments Convention of the European
Community expressly excludes from its scope (a) status
or legal capacity of natural persons, (b) rights in property
arising out of a matrimonial relationship, (c) wills and
succession, (d) social security, and (e) bankruptcy. A
separate convention was contemplated for the last of the
subjects. We cannot also lose sight of the fact that today
more than ever in the past; the need for definitive rules
for recognition of foreign judgments in personal and
family matters, and particularly in matrimonial disputes
has surged to the surface. Many a man and woman of
this land with different personal laws have migrated and
are migrating to different countries either to make their
permanent abode there or for temporary residence.
Likewise there is also immigration of the nationals of
other countries. The advancement in communication and
transportation has also made it easier for individuals to
hop from one country to another. It is also not unusual to
come across cases where citizens of this count ry have
been contracting marriages either in this country or
abroad with nationals of the other countries or among
themselves, or having married here, either both or one of
them migrate to other countries. There are also cases
where parties having married here have been either
domiciled or residing separately in different foreign
countries. This migration, temporary or permanent, has
also been giving rise to various kinds of matrimonial
disputes destroying in its turn the family and its peace. A
large number of foreign decrees in matrimonial matters
are becoming the order of the day. The jurisdiction
assumed by the foreign court as well as the grounds on
which the relief is granted must be in accordance with
the matrimonial law under which the parties are married.
The exceptions to this rule may be as follows: (i) where
the matrimonial action is filed in the forum where the
respondent is domiciled or habitually and permanently
resides and the relief is granted on a ground available in
the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively
submits to the jurisdiction of the forum as discussed
above and contests the claim which is based on a
ground available under the matrimonial law under which
the parties are married; (iii) where the respondent
consents to the grant of the relief although the jurisdiction
of the forum is not in accordance with the provisions of
the matrimonial law of the parties. The aforesaid rule with
its stated exceptions has the merit of being just and
equitable. It does no injustice to any of the parties. The
parties do and ought to know their rights and obligations
when they marry under a particular law. They cannot be
heard to make a grievance about it later or allowed to
bypass it by subterfuges as in the present case. The rule
also has an advantage of rescuing the institution of
marriage from the uncertain maze of the rules of the
Private International Law of the different countries with
regard to jurisdiction and merits based variously on
domicile, nationality, residence -- permanent or
temporary or ad hoc, forum, proper law etc. and ensuring
certainty in the most vital field of national life and
conformity with public policy. The rule further takes
account of the needs of modern life and makes due
allowance to accommodate them. Above all, it gives
protection to women, the most vulnerable section of our
society, whatever the strata to which they may belong. In
particular it frees them from the bondage of the tyrannical
and servile rule that wife's domicile follows that of her
husband and that it is the husband's domiciliary law,
which determines the jurisdiction and judges the merits
of the case . V. JUDICIAL RESPONSE In Dr.Pradeep Jain
v U.O.I the Supreme Court observed: “The entire country
is taken as one nation with one citizenship and every
effort of the Constitution makers is directed towards
emphasizing, maintaining and preserving the unity and
integrity of the nation. Now if India is one nation and
there is only one citizenship, namely, citizenship of India,
and every citizen has a right to move freely throughout
the territory of India and to reside and settle in any part of
India, irrespective of the place where he is born or the
language which he speaks or the religion which he
professes and he is guaranteed freedom of trade,
commerce and intercourse throughout the territory of
India and is entitled to equality before the law and equal
protection of the law with other citizens in every part of
the territory of India, it is difficult to see how a citizen
having his permanent home in Tamil Nadu or speaking
Tamil language can be regarded as an outsider in Uttar
Pradesh or a citizen having his permanent home in
Maharashtra or speaking Marathi language be regarded
as an outsider in Karnataka. He must be held entitled to
the same rights as a citizen having his permanent home
in Uttar Pradesh or Karnataka, as the case may be. To
regard him as an outsider would be to deny him his
constitutional rights and to derecognise the essent ial
unity and integrity of the country by treating it as if it were
a mere conglomeration of independent States”. In
Dr.Yogesh Bhardwaj v State of U.P the Supreme Court
observed: “Domicile', being a private international law
concept, is inapposite to the relevant provisions, having
no foreign element, i.e., having no contact with any
system of law other than Indian, unless that expression is
understood in a less technical sense. An expression,
which has acquired a special and technical connotation,
and developed as a rule of choice or connecting factor
amongst the competing diverse legal systems as to the
choice of law or forum, is, when employed out of context,
in situations having no contact with any foreign system of
law, apt to cloud the intended import of the statutory
instrument. In Mr. Louis De Raedt v U.O.I the Supreme
Court observed: “For the acquisition of a domicile of
choice, it must be shown that the person concerned had
a certain State of mind, the animus manendi. If he claims
that he acquired a new domicile at a particular time, he
must prove that he had formed the intention of making
his permanent home in the country of residence and of
continuing to reside there permanently. Residence alone,
unaccompanied by this state of mind, is insufficient. The
burden to prove that the petitioners had an intention to
stay permanently in India lies on them. The fundamental
right of the foreigner is confined to Article 21 for life and
liberty and does not include the right to reside and settle
in this country, as mentioned in Article 19(1)(e), which is
applicable only to the citizens of this country. The power
of the Government in India to expel foreigners is absolute
and unlimited and there is no provision in the Constitution
fettering this discretion. The legal position on this aspect
is not uniform in all the countries but so far the law that
operates in India is concerned, the Executive
Government has unrestricted right to expel a foreigner”.
In Y. Narasimha Rao V Y. Venkata Lakshmi the Supreme
Court observed: “As pointed out above, the present
decree dissolving the marriage passed by the foreign
court is without jurisdiction according to the Act as
neither the marriage was celebrated nor the parties last
resided together nor the respondent resided within the
jurisdiction of that court. The decree is also passed on a
ground that is not available under the Act, which is
applicable to the marriage. What is further, the decree
has been obtained by appellant 1 by stating that he was
the resident of the Missouri State when the record shows
that he was only a bird of passage there and was
ordinarily a resident of the State of Louisiana. He had, if
at all, only technically satisfied the requirement of
residence of 90 days with the only purpose of obtaining
the divorce. He was neither domiciled in that State nor
had he an intention to make it his home. He had also no
substantial connection with the forum”. VI. CONCLUSION
 The law of domicile in India is crystal clear and is free
from any ambiguities. The same is important for resolving
the “conflict of laws” in India. There seems to be an
ignorance of the concept in its true perspective in India.
There is an urgent need to spread “public awareness” in
this regard.

The Law of Domicile

Conflict of Law Group 2

INTRODUCTION

            Conflict of laws (or private international law or

international private law as it is sometimes known) is a set of
procedural rule that determines which legal system and which
jurisdiction apply to a given dispute. The rules under conflict of
laws apply when a legal dispute has a “foreign” element such as a
contract agreed to parties in different countries.

            There are some certain concepts which are important or

are regarded as a determinative factor in the conflict of laws.
Such concepts include; domicile and nationality.

            The developments of technology and mobility from one

state or another brought the emergence of problems. This is
because in the process of moving about, an individual has to
determine which law applies to him, his marriage, his business
transactions, etc.

The development of passports came about in a bid to solve this

problem. Passports act as a connection to a legal jurisdiction,
which people carry about wherever they go.

 
DOMICILE AND NATIONALITY

            Domicile is the status or attribution of being a permanent

resident in a particular jurisdiction. A person can remain
domiciled in a jurisdiction even after they have left it, if they have
maintained sufficient links with that jurisdiction or have not
displayed an intention to leave permanently (that is to say, if that
person has not yet moved to a different state, or has not yet
formed an intention to remain there indefinitely). LORD
CHELMFORD in WAICKER V HUME[1]  in defining domicile
said,

“That place is properly the domicile of a person in which he has

voluntarily fixed the habitation of himself and his family, not for
a mere special or temporary purpose but with a present intention
of making it his permanent home...”

The concept of domicile is not uniform throughout the world. To

civil lawyers in Europe who do not apply common law, it means
habitual residence. While at common law it is regarded as
equivalent to a person’s permanent home

Domicile is what is termed in private international law as a

“connecting factor” which connects an individual with a system
of law for the purposes of determining a range of matters,
principally related to his status or property. For example, in the
circumstances below, domicile is said to be a “connecting factor”

  .Legal capacity to marry

  .Personal capacity to make a will

 .Formal validity of a will

 .Jurisdiction of the court in proceedings for divorce

 

Nationality on the other hand is a relationship between an

individual and a country (to which a person owes his allegiance
to). Nationality normally confers some protection of the
individual by the state and some obligations on the individual
towards the state. Where the state and country is federated into
separate legal systems the two (domicile and nationality) will be
different. But where the country is federated into separate legal
systems the two will be different.

NATIONALITY AND DOMICILE CONTRASTED

Domicile can be distinguished from nationality in that one can

have a dual nationality but not more than one domicile at a time
as it was held in the case of ODIASE V ODIASE[2].

 Every person as well must have a domicile as was seen in the

case of UDNY V UDNY[3]. Unlike nationality no person can be
without a domicile even if stateless.

Nationality represents a man’s political status, by virtue of which

he owes allegiance to some particular country; domicile indicates
his civil status and it provides the law by which his personal
rights and obligations are determined.  Nationality depends,
apart from naturalisation, on the place of birth or on parentage;
domicile is constituted by residence in a particular country with
the intention of residing there permanently. It follows that a man
may be a national of one country but domiciled in another.

TYPES OF DOMICILE

            The rules for determining domicile in common law

jurisdictions are based on case law in origin. However, as time
went on, different jurisdictions altered some aspects of the
common law rules by statute, details of which may vary from one
jurisdiction to another. The common law rules have however
survived in most jurisdictions and are outlined below.

1.      DOMICILE OF ORIGIN

Dicey states the common law rule as thus;

“Every person receives at birth a domicile of origin,

a) A legitimate child born during the lifetime of his father has his
domicile of origin in the jurisdiction in which his father was
domiciled at the time of his birth.

b)  A legitimate child not born during the lifetime of his father or
an illegitimate child has his domicile of origin in the jurisdiction
in which his mother was domiciled at the time of his birth.

c) A foundling has his domicile of origin in the jurisdiction in

which he was found.

A domicile of origin is attributed by law to every person at birth.

There is no necessary connection between the place of birth and
the domicile of origin.

A domicile of origin is more tenacious than a domicile of choice.

It is more difficult to prove that it has been abandoned. The point
of domicile of origin ensures that everyone has one domicile and
only one domicile at all times. If a person leaves the country of
his domicile of origin, intending never to return to it, he
continues to be domiciled there until he acquires a domicile of
choice in another country. But if a person leaves the country of
his domicile of choice, intending to never return to it, he ceases
to be domiciled in that country unless and until he acquires a
new domicile of choice, his domicile of origin revives.

The domicile of origin acts as a fall-back; whenever there is no

other domicile, it comes to fill the gap.

In BELL V KENNEDY[4], per Lord Westbury- “The domicile of

origin adheres until a new domicile is acquired.”

2.      DOMICILE OF CHOICE

Every independent person can acquire a domicile of choice by

the jurisdiction of residence and intention of permanent or
indefinite residence but not otherwise.  According to the
DOMICILE AND MATRIMONIAL PROCEEDINGS ACT, every
person in the world who is over the age of sixteen and is not
mentally incapable is able to acquire a domicile of choice by
residing in one country with the present intention of making it
his permanent home. Thus there are two important
requirements, namely; fact and intention. They are normally
referred to as factum and animus. Factum is fact or residence,
while animus is intention. A person can therefore abandon a
domicile of choice in a jurisdiction by ceasing to reside there
(fact) and by ceasing to reside there either permanently or
indefinitely (intention). That is to say leaving “animus non
revertendi”

Residence for the purpose of domicile has a very wide meaning

and its function is to a great extent evidential in character thus,
no particular length of residence is required. But long residence
in a country will a raise the inference that a person intended to
remain there and this may be so strong as to be impossible to
rebut. However, 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. Thus in RE LLOYDS
EVANS[5], a Belgian domiciliary who had fled to England died
before he had decided to return to Belgium or emigrate to
Australia. He was held to be domiciled in Belgium.
The requirement of intent is more exacting and important in
domicile. In WINANS V ATTORNEY GENERAL[6], Winans had
lived a remarkable life in the manner of the heroes of the
Victorian age. Born in Baltimore, he spent much of his life in
Europe and lived in England for the last 37 years of his life. He
built railways in Russia and helped that country against England
in the Crimean war by making gunboats. He had an obsession to
develop his Baltimore property into a seaport, equip it with ships
of his own special design and capture the world’s carrying trade
for the United States at the same time putting an end to the Rule
Brittanica. His hatred of Britain eventually convinced the House
of Lords that despite his long residence there, he lacked the
intention to acquire a domicile in England. A similar decision
was held in the case of RAMSAY V LIVERPOOL ROYAL
INFIRMARY[7].

However it has been submitted that the two cases are extremely
unsatisfactory as they put too much emphasis on the desires,
however unrealistic, of the person in question rather than what
he proposed to do.

In contrast to the case above, the case of WHITE V TENANT[8],

where a family were moving house and this involved crossing a
state line. Having put their belongings in the new house the
family returned to their old state to spend the night with family
as the new house was not yet ready to inhabit. When the father
died during the night the court decided that he died domiciled in
his new state not the old one.

Thus, once it can be established that the intention to make the

country of residence the permanent home exists, the fact that the
residence was not freely chosen and could be ended by
compulsory relation is irrelevant.
 

3.      DOMICILE OF DEPENDENCE

This is also known as domicile by operation of law. This type of

domicile concerns dependent persons. The domicile of a
dependent person is the same as and changes (if at all) with the
domicile of the person on whom he is, as regards his domicile,
legally dependent. Until he reaches the age of maturity (which
maybe the age of sixteen[9]), a legitimate child’s domicile
depends on and changes with the domicile unless, both parents
being alive, the child has his home with his mother and no home
with his father. An illegitimate child or a legitimate child whose
parents are both living but who lives wholly with his mother has
a dependent domicile coincident to that of his mother’s current
domicile. A child whose father is dead takes his domicile of
dependence from his mother however, unless he has a home with
her, his domicile of dependence does not automatically change
with hers. A child whose parents are dead should be domiciled
where the person on whom he is dependent is domiciled
(however there is no authority for this[10]). At birth, a child
receives two domiciles, origin and dependence, which are
initially, in the vast majority of cases, the same. The domicile of
origin will be overlaid by the domicile of dependence. While the
domicile of origin remains constant throughout life, the domicile
of dependency changes with the domicile of the person on whom
the child is domiciliary dependent. The idea is that, as far as
possible, there should be unity of domicile between the child and
its parents.

Married Women

            Until 1 January 1974, there were three categories of

dependent persons; children, married women and mentally
disordered persons. Married women ceased to be dependent
persons on 1 January 1974 by virtue of section 1(1) of Domicile
and Matrimonial proceedings act 1973. This act however, did not
change the position of women married before this date because
the act was not retroactive.

    Mentally Disordered Persons

            A mentally disordered person cannot acquire a domicile of

choice; he retains the domicile he had when he began to be
legally treated as such. However, if he was born mentally
disordered or he becomes mentally disordered while a dependent
child, his domicile is determined so long as he remains mentally
disordered, as if he continued to be a dependent child.

DOMICILE AND CATEGORY OF PERSONS

.Prisoners

A prisoner normally retains his domicile. But he can form an

intention to reside permanently or indefinitely: in which case he
acquires a domicile there.

.Persons liable to deportation

Such a person’s residence will be precarious and so he is unlikely

to be able to form an intention to 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[11]. He loses it only when he is actually deported.

.Refugees and fugitives

A person who leaves a country as a political refugee, as a fugitive
from criminal justice, or in order to evade his creditors, has a
special reason for leaving it, but has no special motive for
entering another country nor is his residence in any other
country in any sense enforced. If the fugitive intends to abandon
his domicile in the first country, the acquisition of a new
domicile in the second country will be readily assumed.

If a political refugee intends to return to the country from which

he fled as soon as the political situation changes, he retains his
domicile there unless the desired political change is so
improbable that his intention is discounted and treated merely as
an exile’s longing for his native land; but if his intention is not to
return to that country even when the political situation has
changed, he can acquire a domicile of choice in the country to
which he has fled.

In the case of a fugitive from criminal justice, the intention to

abandon his domicile in the country from which he has fled will
be readily assumed, unless perhaps the punishment which he
seeks to escape is trivial, or by the laws of that country a
relatively short period of prescription bars liability to
punishment[12]. Similarly, a person who leaves a country to
escape his creditors may lose his domicile there; but if he intends
to return as soon as he has paid or otherwise got rid of his debts,
there is no change of domicile.         

.Invalids

It has been objected that person who resides in a country for the
sake of his health does not acquire a domicile. This is because;

a) The residence has been taken up for a special motive;

b) It may not be freely chosen.

These factors make it improbable that a domicile has been

acquired. If someone goes to a country for treatment, he clearly
does not acquire a domicile there. But where he settles in a new
country because he believes he will enjoy better health there may
well intend to live there permanently.

.Members of the armed forces

Unless a person intends to change his domicile, he does not

acquire a domicile by entering the armed forces or lose the one
he has upon his entering.

.Employees

If a person goes to a country merely to work, he retains his

domicile and does not acquire a domicile of choice there. Except
where he does not only go there to work, but also to settle in it,
he acquires a domicile of choice. Thus, where a barrister with an
English domicile of origin was appointed Chief Justice of Ceylon,
and he went to Ceylon intending to stay there until he earned his
pension, he retained his English domicile[13].

.Diplomats

Like every other case, where diplomats do not form the intention
of settling in the country to which they have been accredited they
do not acquire a domicile there. But if they do form an intention
to reside there permanently, they acquire a domicile of choice.

CONCLUSION

            Domicile is the most significant connecting factor in

conflict of laws. It has a dominating role in family and
matrimonial property law and a role in other areas such as
capacity of persons to make contracts. It plays a part also in the
law of taxation.

Domicile is ‘an idea of law’[14]

Domicile of origin cannot be lost as such. Everyone is born with a

domicile of origin, which remains (if only in abeyance). Even
when a domicile of choice is acquired, the domicile of origin will
remain as a resource to fill up any gap when a domicile of choice
is abandoned.

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 either a new domicile of choice is acquired, or the
domicile of origin revives by operation of law.

It should be noted that the most important factor in acquiring a

domicile of choice is intention (animus). The act of moving may
occur but most times it does not necessarily mean that the
person intends to move.  

References

.Hong Kong law reform commission report

.Conflicts of law, Raymond Smith (1993)

.Google search engine

.Nottebohm case ( Liechtenstein v Guatemala)

[2] (1965)NNLR 196 similarly held in the INLAND REVENUE

COMMISSIONER V BULLOCK (1976) 1 WLR 1178 at1184
[3] (1869) L.R 1 S.C & D 117-441 also MARK V MARK
[4] (1868) L.R1 SC & DIV 307
[5] (1947) CH 695C/F RE FLYNN(1968) 1 ALL ER 49
[9] According to section 3(1) Domicile and matrimonial
proceedings act 1973
[10] Raymond Smith in Conflicts of  Law(1993)
[11] Cruh v Cruh(1945) All ER 545
[12] Moynihan v Moynihan(Nos 1 & 2 ) (1997) 1 FLR59-where it
was held that M, 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 properties, married and had children.
[13] A.G v Rowe (1862) 1 H & C 31
[14] Bell v Kennedy(supra)

Domicile in Private International Law

First, let us see the definition of Domicile.

Domicile is the status or attribution of being a lawful permanent

resident in a particular jurisdiction.

The purpose of domicile is to connect a person with the country

in which he has his home permanently or indefinitely. This
purpose is often difficult to achieve because because some people
have no home or no settled home in any particular country.

Further certain terms like "county" and "law district" often have
a vast geographical scope. The United Kingdom, for example, is a
composite state with England and Wales, and Scotland and
Northern Ireland. Similarly, Australia is composed of New South
Wales and Queensland.

A person can remain domiciled in a jurisdiction even after he has

left it, if he has maintained sufficient links with that jurisdiction
or has not displayed an intention to leave permanently.
Most countries frame rules related to domicile so that every
person has a domicile, and only one domicile at all times.

In certain areas like divorce and matrimony, federal or

composite states create domicile covering all the constituent
countries. A good example for this is the Australian legislation
that created an Australian domicile for the purpose of
matrimonial jurisdiction. Because of this, in Australia, a person
can have two domiciles, one for matrimonial causes and the
other for other issues.

Domicile of Children
The domicile of a child is determined as follows:

. a legitimate child born during the lifetime of his father has

his domicile of origin in the country of his father’s domicile
at the time of his birth
. a legitimate child born after his father’s death, or an
illegitimate child, has his domicile of origin in the country
of his mother’s domicile at the time of his birth; and
. a foundling has his domicile of origin in the country in
which he is found.
The domicile of an minor or unmarried child might change only
if the parent on whom the child’s domicile depends.

Domicile of Adults
Upon achieving majority, a person remains domiciled in the
country in which he was domiciled immediately before either of
the following events, unless and until he abandons that domicile
and either:

1. acquires a domicile of choice or

2. his domicile of origin revives
Domicile of Choice
• Every independent person can acquire a domicile of choice
by the combination of residence and intention of
permanent or indefinite residence
• "Residence" in this context seems to involve little more
than mere physical presence in a country, and a period of
days or even less can be sufficient provided that physical
presence is accompanied by an intention to make a home in
the country from that time on. Conversely, a lengthy period
of residence is not, alone, conclusive.
• An unequivocal and positive intention not to remain in
another and an intention to remain in a new country
respectively are required. This rule however is a bit relaxed
by several countries because of an event of an unlikely
contingency.
• An intention which is merely conditional on some, as yet,
unfulfilled event is insufficient.
• Mark v Mark: Domicile of choice is a question of fact, not of
law, requiring the combination and coincidence of
residence in a country and a bona fide intention to make a
home in that country permanently or indefinitely. A person
can be resident in a place where she has no right to be, and
could form an intention to remain in a place despite
considerable uncertainty as to whether this could be
possible. There is no reason in principle why a person
whose presence is unlawful could not acquire a domicile of
choice.
Burden and standard of proof
• The general rule is that the burden of proving that there has
been a change of domicile falls on the person alleging that a
change has occurred.
• In discharging that burden where the competition is
between a domicile of origin and one of choice, it has been
suggested that under English law a standard of proof more
onerous than the balance of probabilities generally required
in civil matters may have to be satisfied, and the necessary
 elements of residence and intention must be shown with
“perfect clearness and satisfaction” to the court.
• In the Estate of Fuld (No. 3) [1968] P. 675. 685-686:
Buswell v. I.R.C. [ 19741 1 W.L.R. 163I, 1637; cf. Lawrence
v. Lawrence [I9851 Fam. 106, 110-1 II: More recent English
decisions favour the civil standard of proof
• In Scots law it seems likely that the ordinary standard of
proof on a balance of probabilities applies.
Revivial of domicile of origin
• Udny v. Udny (1869) L.R. I Sc. & Div. 441: If a person
abandons one domicile of choice by ceasing to reside in a
country and losing the intention to make his home there
permanently or indefinitely without immediately acquiring
another domicile of choice, his domicile of origin
automatically revives irrespective of where he is or what he
may intend for the future. This rule ensures that every
person has a domicile at all times.
Domicile of the mentally incapable
According to the English Law,

1. if his incapacity pre-dates his sixteenth birthday his

domicile thereafter continues to be determined as if he
were an unmarried person under 16, but
2. if the onset of his incapacity post-dates his sixteenth
birthday or marrying there under, his domicile remains
that which he had immediately before the onset of his
incapacity.
• Dicey & Morris, p. 161.: There is no authority on the degree
or nature of the mental incapacity which renders a person
of full age incapable of acquiring a domicile of choice. It has
been suggested that it is inappropriate to link the question
of capacity in relation to domicile to the question whether
there is an order in force or some form of official constraint
relating to his mental state.
The better view would seem to be that it is a question of fact in
each case whether a person is capable of forming the intention to
make his home in a country permanently or indefinitely.

Domicile
This essay has been submitted by a law student. This is not an
example of the work written by our professional essay writers.

Chapter I

INTRODUCTION

Domicile is considered to be a connecting factor which links a

person with a particular legal system. This legal system includes
his personal law which determines the legal capacity of that
person as for example whether that person has the legal capacity
to marry or how the property of a deceased person is to be
distributed. For instance a married man domiciled in England is
under the jurisdiction of England for purposes of dissolving or
annulling his marriage.

The concept of domicile is not just confined to conflict of laws

but also extends to tax law and in fact many leading judgments
defining domicile are tax cases.

1.1 Definition of Domicile:

The general meaning of domicile is 'permanent home'. But Lord

Cranworth V-C in Whicker v Hume has defined domicile as,

"By 'domicile' we mean home, the permanent home; and if you

do not understand your permanent home, I am afraid that no
illustration drawn from foreign writers or foreign languages will
very much help you to it. I think the best I have heard is one
which describes the home as the place (I believe there is one
definition in which the 'lares' are alluded to), the place 'unde non
sit discessurus si nihal avocet; unde cum profectus est,
peregrinari videtur.' I think that it is the best illustration, and I
use that word rather than definition, to describe what I mean."

Therefore a person is said to have home in a country where he

resides permanently without any intention of moving. On the
other hand a person does not cease to have his permanent home
in a country merely because he is temporarily residing elsewhere.

But the traditional concept of domicile has received criticism

from reform agencies in England as well as in other countries
which follow English common law. This disapprobation is based
mainly on two grounds, which were also pointed out in 1954
(First Report of the Private International Law Committee, Cmnd
9068).

First point of contention relates to the extraordinary importance

attached to the domicile of origin, particularly to the revival of
domicile of origin when domicile of choice is abandoned without
obtaining a new domicile of choice, and the fact that there is
heavy burden of proof on the person who asserts the change in
the domicile of origin which seems to be irrational and
unjustified.

The second concerns with the difficulty attached in proving the

intention required to acquire a domicile of choice. It also
concerns with regard to the doubt about the standard of proof
required to acquire a domicile of choice.

All this criticism was put forward because of the ambiguities

created by the complex nature of the domicile law which not only
results in time delay and money outlay but also leads to
uncertain results.

This research paper will discuss these criticisms in detail, looking

into its brief history and the law reform proposals recommended
by the Private International Law Committee and the Bills which
were presented to make amendments in these criticised concepts
of the domicile of origin. These contentious aspects of domicile
law will also be compared with corresponding facets of American
Law where these flaws were removed by amending the law of
domicile adequately.

1.2 Brief History of Domicile:

The concept of domicile in common law is derived from the

Roman law and the usus modernus through the Canon law.
According to a modern Canonist,

"The term domicilium is derived from domum colere, to foster or

inhabit the home. Domicile is not any place of residence but a
place of habitual residence."

At that time the ordinary man's Diocese had authority over him
in the Consistory Court in England and a man's domicile in a
Diocese was established by his habitual residence. The Bishop of
the Diocese of the domicile had jurisdiction in religious causes
and in England this included probate and matrimonial
jurisdiction even before the Matrimonial Causes Act 1857 and the
Court of Probate Act 1857. English statutes dealing with marriage
characterise the place where a man dwells, of his dwelling place;
and domicilium is a habitation or a dwelling.

Therefore domicile is a place of residence in a Diocese in Roman

Canon law and in the English Canon law from which the English
notion of domicile has evovled.

1.3 Importance of Domicile:

Domicile not only acts as a connecting factor but it also has an

exclusively extended role. It can be used as a jurisdictional link
which is a pre-requisite for assumption of jurisdiction by the
forum or for recognition and assumption of a foreign court's
jurisdiction. It also determines an individual's right to vote, his
right to hold public office, his entitlement to support in respect of
various needs such as ill-health or unemployment and his
liability to various forms of taxation. Therefore there is no person
without a domicile because it is necessary to connect a person
with some legal system to regulate his legal relationships.

1.4 Principles Governing Law of Domicile:

There are five fundamental principles which govern the law of

domicile.

First principle is that nobody shall be without a domicile. The

law assigns a domicile of origin to every person at the time of his
birth, i.e. to a legitimate child the domicile of the father, to an
illegitimate child the domicile of the mother, and to a foundling
the domicile of place where he is found. This domicile of origin
continues until a new domicile i.e. domicile of choice is acquired.

Secondly, a person cannot have two domiciles at a time. Thirdly,

domicile connects a person with a single system of territorial law
but it does not necessarily signify a system that prescribes the
same principles for all the classes of persons. As for instance in
India different rules will apply to different categories of
population according to their religion, race or caste.

Fourthly, there is presumption in favour of the continuance of an

existing domicile. And the fifth and final rule is that the domicile
of a person is to be determined according to the English and not
in accordance with the foreign concept of domicile, subject to
certain statutory exceptions.

Chapter II
2.1 Development of Domicile of Origin:

As mentioned earlier, domicile of origin is a domicile ascribed to

a person when he is born. Lord Westbury remarked in Udny v
Udny:

"That no man shall be without a domicile, and to secure this

result the law attributes to every individual as soon as he is born
the domicile of his father, if the child be legitimate, and the
domicile of the mother if illegitimate."

If a child is born after the death of the father or if an illegitimate

child is later legitimated, in both cases, the domicile of origin will
remain same as that of the mother. An adopted child probably
acquires the domicile of origin of the adoptive parents as such a
child is treated as if born in lawful wedlock. The domicile of
origin is conferred on the basis of origin. There are exceptional
cases like Re McKenzie, where domicile of origin of a child is
determined on the basis of the place where he was found and not
on the basis of his parents' domicile. In the mentioned above
case the domicile of an illegitimate child was determined on the
basis of the place where he was found because the domicile of his
mother was unknown.

The children under 16 and mentally disable person acquire a

domicile of dependence which changes with the change of their
guardian. In later life, the child can acquire a domicile of choice
after becoming independent and can also abandon it without
acquiring a new one. At that stage the domicile of origin will
revive.

The rules on the law of domicile had been laid down by the
judges of the Victorian time and the law of the domicile of origin
has gained strength with time despite being criticised. Domicile
of origin is such a powerful concept that even if a person leaves
his country of origin with an intention not to return back, he is
still considered to be domiciled there until he obtains a new
domicile of choice in another country. Therefore a person who
has never even visited a particular country can have the domicile
of origin of that place. In Grant v Grant a child was born in India
but his domicile of origin was held to be English following his
father's domicile of origin. It illustrates that domicile of origin is
the hardest to lose among all the three types of domiciles.

Although the principle of domicile of origin was finally

established in Udny v Udny, but it has come a long way since
then and has carried on proving its strength and significance
since then.

2.2) Tenacity and Revival of Domicile of Origin

under English Law:

The concept of domicile of origin is well entrenched by the

Victorian judges and it is argued that its rules have been quite
satisfactory as reflecting social factors. One acquires it at the
time of his birth and because of its strong tenacity it is hard to
lose and it automatically revives once domicile of choice is lost
without acquiring a new domicile of choice.

2.2.1 Tenacity of Domicile of Origin:

One of the very distinctive features of the domicile of origin is its

tenacity and persistence. It is hard to lose as compared to other
two kinds of domiciles which is obvious from the fact that it
requires strong evidence to prove its loss where as it is less
onerous to prove change of other types of domiciles.

It has proven to be more tenacious in a way that even if a person

leaves his country of origin with an intention never to return
back, his domicile of origin survives until he has acquired a
domicile of choice.
In Bell v Kennedy, Bell had a Jamaican domicile of origin but
after leaving Jamaica, he was uncertain whether to settle on
Scotland or England. Therefore the House of Lords held that he
had not lost his Jamaican domicile of origin.

The tenacity and persistence of domicile of origin implies that it

returns as 'boomerang' during a person's lifetime and even after
his death, for instance in succession matters. One of the
remarkable cases in this regard is Poingdestre v Sherman, Re
O'Keefe (Dec'd), where Mary O'Keefe was born in India, kept her
British citizenship all her life, spent forty seven years of her life
in Italy where she died. But the court held that she had an Irish
domicile of origin at the time of her death although, the only
connection between Mary and Ireland was her three weeks visit
in Ireland and the fact that her father was born in Ennis, Co
Clare. Despite the fact that her father had acquired a new
domicile of choice but due to her failure to acquire a new
domicile she was deemed to be domiciled in the place where her
father was domiciled at the time of her birth. This case indicates
that a person can retain the domicile of his origin even when he
has no connection with the country of his origin.

a) Case Law:

The English courts have stressed on the tenacious character of

domicile of origin since centuries which can be seen from the
following cases.

There are many leading cases which illustrate the tenacity and
continuance of domicile of origin. In Winans v Attorney-General,
the House of Lords held that a man of American domicile of
origin who spent his last thirty eight years of his life in England
has not acquired a domicile of choice of England. He has
retained his domicile of origin as he had hope to go back to
America. He intended to return to Baltimore where he was
setting up a business and also dreamed of acquiring a large
house in order to live and work there for the whole scheme.

According to Lord Macnaghten:

"When he came to this country he was a sojourner and a

stranger, and he was I think a sojourner and a stranger in it when
he died."

Similarly in Ramsay v Liverpool Royal Infirmary, the House of

Lords unanimously held that a man of Scottish origin who spent
thirty six years of his life in Liverpool had not acquired the
domicile of choice of England and retained his Scottish domicile
of origin despite the fact that he was proud to be called as a
Glasgow man, who refused to return to Scotland on several
occasions, even on the death of his mother and also arranged his
burial in Liverpool. The House of Lords denied the fact that his
prolonged residence showed his intention to reside in England
permanently. The length of residence of the propositus in
Liverpool was considered to be extremely colourless by Lord
Thankerton.

Likewise in IRC v Bullock, a man with a domicile of origin of

Canada who lived in England for forty years and also married an
English woman, had not acquired an English domicile of choice.
The Court of Appeal held that his domicile of origin still
sustained because he had the intention to go back to Nova Soctia
if his wife predeceased him.

In a more recent case of Cyganik v Agulian, it was held by the

Court of Appeal that a man who lived and worked in England for
forty three years did not lose his domicile of origin of Cyprus.
The court held that the standard of proof required to establish
the abolition of domicile of origin is a heavy one and can not be
inferred lightly which was lacking in this case.

It is obvious from all these cases starting from Udny v Udny until
now that courts have attached great significance to the
persistence of domicile of origin. The judges have always
emphasised on the fact that domicile of origin is hard to lose.

b) Standard of Proof:

The courts had changing attitude towards the standard of proof

required to establish the change in the domicile of origin. The
presupposition against the recognition of a change of domicile in
Winans v Attorney-General, Ramsay v Liverpool Royal Infirmary
and IRC v Bullock is a strong one and a very high standard of
proof has been demanded to establish such change. The burden
of proof is remarkably heavy whenever a change of domicile of
origin is alleged. But recently, the courts have changed their
attitude towards the harshness of the proof and numerous judges
have indicated that the burden of proof is not that heavy as it was
used to be in the past.

In Henderson v Henderson and Cramer v Cramer it was said that

a higher standard of proof was required to establish the change
in domicile of origin. In Henderson v Henderson, Sir Jocelyn P
has even gone beyond that and suggested that when change in
domicile of origin is alleged, "the standard of proof goes beyond a
mere balance of probabilities." But Scarman J in Re Fuld(No.3)
agreed with the Court of Appeal in Buswell v IRC, rejecting the
standard required in criminal cases.These few cases in the past
illustrate that domicile of origin is not that tedious to lose and it
is not that difficult to prove that change in one's domicile of
origin.

2.2.2 Doctrine of Revival of Domicile of Origin:

Domicile of origin has a special characteristic that although it can

be replaced by domicile of choice or dependence but it is never
lost permanently rather it becomes dormant. Where domicile of
choice is abandoned without acquisition of new domicile of
choice, domicile of origin is revived. The concept of domicile is
very vital because of this revival rule.

Domicile of origin remains in the background held in abeyance

ever ready to come into action once a person has lost his domicile
of choice. The reason is that in many cases the domicile of choice
is difficult to ascertain because of complexity in proving the
acquisition of domicile of choice which requires not only the
intention to reside for indefinite period of time but also the
physical presence. Thus if requirements essential to establish the
domicile of choice are lacking, the domicile of origin revives.

The doctrine of revival of domicile of origin dates from the

middle of the nineteenth century. The rule of revival of domicile
of origin on abandonment of domicile of choice was illustrated in
Udny v Udny by House of Lords in 1869.

Later in Tee v Tee the rule of revival was followed, where a man
of English domicile of origin acquired a domicile of choice in
United States of America.

Afterwards he went to work in Germany but did not acquire new

domicile of choice there since at first his intention was to go back
to States but then he decided to settle in England permanently.
He commenced divorce proceedings in English courts while he
was still in Germany. It was held by the court of law that he lost
his American domicile while he was still in Germany and did not
acquire a new one in Germany as he decided not to return back
to America. Therefore his English domicile of origin revived
automatically once he decided to in settle in England
permanently.

The English courts have considered it to be an important concept

as evident from the cases narrated supra. It can be inferred that
automatic revival rule plays a vital role in filling the gap between
the deliberate abandonment of one domicile of choice and the
acquirment a new domicile of choice.
It can also clear that domicile of origin can not be abandoned
completely. Even if it is replaced by a domicile of choice, it is not
lost completely. In Harrison v Harrison, Harrison had a domicile
of origin of England. When he was eighteen, his parents moved
to South Australia leaving him in England. According to the rules
of that time he acquired the domicile of dependence of South
Australia. At the age of twenty he moved to New Zealand, got
married there and decided to settle there permanently but
shortly after he came back to England, where he turned twenty
one. His wife initiated the divorce proceedings in England and it
was held that English courts had jurisdiction to try the case
because when Harrison turned twenty one, he had lost his
domicile of dependence of South Australia. As he did not acquire
any domicile of choice therefore his domicile of origin revived
automatically.

It shows that domicile of origin not only manages to revive after

the abandonment of domicile of choice but also when domicile of
dependence finishes or where a domicile of choice is lacking, as it
was illustrated in Harrison v Harrison.

Not only Harrison v Harrison, Tee v Tee or Udny v Udny, but

also the earlier mentioned cases referring to the tenacity of the
domicile of origin such as Ramsay v Liverpool Royal Infirmary,
Winans v Attorney-General, IRC v Bullock and Cyganik v Agulian
are also instances for the revival of domicile of origin. Neither
the absence of Colonel Udny from Scotland,nor the travels of Mr
Winans,were sufficient to displace the domicile of origin.
Similarly, the disinterest of Mr Bowie and the indecisiveness of
Mr Bell both led to same result. All these cases depict that
domicile of origin had not been replaced by domicile of choice
and it was still intact.

3.1 Reform Proposals of the Law of Domicile and

Criticism:
In this chapter, Law reforms will be discussed which were
proposed to amend the law of domicile. As mentioned earlier, the
law of domicile is frequently criticised for its two aspects i.e.
tenacity of domicile of origin and its principle of revival.

Among all the three types of domiciles, this is only the domicile
of origin which has been subject to numerous law reform
proposals since 1950's. In 1950 Lord Chancellor asked the
Private International Committee for the desirable amendments
in the law of domicile. The Committee published its report in
1954 in which it criticised domicile of origin for its undue
importance attached to its rule of automatic revival on
abandoning the domicile of choice without the acquisition of new
one. These proposals were not only made in 1950's but were also
taken twice to the parliament in the form of Domicile Bills of
1958 and 1959.

The Committee recommended that principle of revival of

domicile of origin should be discarded. The recommendation was
presented in the form of a Bill before the House of Lords in 1958.
In the House of Lords, Lord Meston introduced a Bill regarding
recommendations for discarding the revival principle of domicile
of origin. Some debatable issues concerning taxation matters
were raised at the Third Reading. Later the Bill was sent to the
House of Commons but unfortunately it lapsed due to the end of
parliamentary session. Another Bill was presented before the
House of Lords in 1959. But it failed to become the law because if
it was legislated then many American businessmen living in
United Kingdom would have become prone to double taxation.
This would have discouraged the foreign businessmen to invest
in England and would affect the economy of the country.

Proposals for the reform of law of domicile and in particular the

abandonment of the revival rule of the domicile of origin
continued till the mid 1980's. Law Commission Working Paper
88 examined the desirability of substituting domicile with a
different connecting factor. It proposed the possibility of
replacing domicile by the concept of habitual residence or
nationality. Nevertheless, it was concluded that domicile should
continued to be used as a connecting factor.

The most significant proposal of the Law Commission was

abolishing the doctrine of revival of domicile of origin, replacing
it with the continuance of domicile of choice until a new one is
acquired which is a much simpler rule as followed by many other
states including United States of America. The overall result of
this proposal was to make the domicile of origin redundant so
that the tenacity given to the domicile of origin and its revival
should not survive. But again these proposals faced failure in the
parliament and did not become a part of legislation. The Law
Commission also had to come to a decision concerning the issue
whether the domicile of children should have domicile of
dependence with respect to their parents or it should be
depending on their habitual residence or the country with which
they are most closely connected. It was proposed that a child
should have a 'Dependent Domicile' of their parents but where
the tie with the parents was weakened, he would have an
independent domicile.

Three rules were suggested for ascertaining the domicile of

children. Firstly, if the child lives with both parents, his domicile
would be the same as that of the parents and it will change with
the change of parents' domicile. But if domicile of both parents is
not same then the child will take the domicile of the mother.
Secondly, if the child is living with single parent, he will have the
domicile of that parent and it will change accordingly. Thirdly,
the child should be domiciled in a country with which he is more
closely connected.

Again in 1987, the Law Commission compiled its report after

receiving comments and views on 1985 report. This proposal was
an important step towards the process of improving effectiveness
and fairness of the English rules of the domicile of origin. If it
was adopted, it would have abolished many difficulties which
propositus has to face since it eradicates the tenacity and revival
of domicile of origin and also it clear that the standard to prove
the change of the domicile of origin is that of a civil standard.

3.2 Failure of Proposals:

Law Commission intended to make a change in the concept of

tenacity of domicile of origin which was established in leading
cases like Ramsay v Liverpool Royal Infirmary and Winans v
Attorney-General. If these proposals were accepted, it would be
completely against the views held in the cases mentioned above
and other landmark cases establishing the persistence of
domicile of origin.

The suspecting economic reasons were also play an important

role in failure of these proposals. One of the instances of
relevance of domicile in taxation law of England is the rule that
emoluments received in England by a person not domiciled there
from employment with a non resident are regarded as foreign
emoluments. This rule struck sufficient terror into the hearts of
foreign businessmen which forced them to oppose the Bills. But
it was argued that by careful planning the problem of double
taxation could be solved and foreign businessmen abroad can be
assured of a tax-free existence in England.

Although these Law Reforms and Domicile Bills lapsed without

achieving any of the desired result and did not gain much public
support in United Kingdom but it influenced other countries like
New Zealand and Australia which amended their laws in this
area and abolished this rule of tenacity of domicile of origin
replacing it with the continuance of domicile of choice until a
new domicile is acquired under Domicile Act 1976, s11 (New
Zealand) and the uniform Domicile Act of the Australian
Jurisdiction, s6.

3.3 View of Lord Denning:

Lord Denning supported the rejection of the Reform Bills not on

the basis of business interests from the outside world but he
supported the judgments given in Winans v
Attorney-Generaland Ramsay v Liverpool Royal Infirmary and
expressed that these decisions were right and should not be
changed.

Chapter IV

4.1 Merits of the Concept of Tenacity and Revival of

Domicile of Origin:

Domicile of origin is the reminder of the birth place of a person

and always welcomes a man to his roots and ancestors. Although
these rules have long been criticised and they are nowadays
considered to be artificial and inadequate but unlike domicile of
choice, the conditions of residence and intention are not attached
with the domicile of origin.

a) Capability of dealing with absurd situations:

Although the concept of tenacity and revival seem to be

inadequate by the critics but persistence of domicile of choice
can also lead to absurd consequences. Revival rule of domicile of
origin can deal with many odd situations. As for example, a
family with English domicile of origin moves to Australia with an
intention to settle there permanently, but after sometime they
decided to shift from Australia to America for few years with an
intention never to go back to Australia.

Therefore in such a situation family has not acquired a new

domicile of choice of America unless they spend appreciable
period of time there. In such circumstances, their English
domicile of origin will revive which will fulfil its purpose in this
case. But let's consider that domicile of choice will continued
until they have acquired a new one then if any mishap happens
with them on their way to America in the above example, the
governing law will be that of Australia where they never wanted
to set foot again. This seems to be a strange situation where legal
system of a place will apply which a person has willingly
abandoned. Here the concept of revival of domicile of origin
seems to be more logical.

b) Thorough Concept:

Domicile of origin is a deep and thorough concept which helps

the courts to establish a balanced and proper decision. It urges
the court to see the whole life of propositus in order to determine
if his domicile of origin has been displaced or not.

As for example, in Cyganik v Agulian, according to Mummery LJ:

"Positioned at the date of death...the court must look back at the

whole of the deceased's life, at what he had done with his life, at
what life had done to him and what were his inferred intentions
in order to decide whether he had acquired a domicile of choice
in England by the date of his death."

c) Determination of Personal Law:

Domicile of origin provides personal law for resolving the legal

issues of a person. As it remains constant and can never be
abandoned completely, therefore its revival provides a personal
law where domicile of choice or dependence is abolished.
Harrison v Harrison and Bell v Kennedy are the valid examples
discussed earlier where domicile of origin revived when domicile
of dependence in the former case and domicile of choice in the
latter case were abandoned.

4.2 Demerits of Tenacity and Revival Principle of

Domicile of Origin:

Domicile of origin has some demerits due to which this concept

has been criticised.

a) Redundant Concept:

The principle of revival of domicile of origin seems to be

redundant and is not necessary according to the proposals of the
Law Commission in their 1987 Report. This report proposed that
domicile of origin should be abolished and person's domicile at
birth should be determined by the country with which he has
most close connections or he would be considered to have the
domicile of the parents with whom he is residing at that time.

Furthermore, the person will acquire a domicile of choice after

the age of 16 and this domicile of choice will continue till the time
a new domicile of choice is acquired, incase the previous
domicile of choice is abandoned.

If these proposals had not been rejected, there would be no need

of domicile of origin and domicile of choice and dependence
would be sufficient to fulfil the functions and rationale of
domicile of origin. In fact the main purpose of the revival rule of
domicile of origin is to cover the gap when a domicile of choice is
abandoned without acquiring a new one.

b) Unsatisfactory Principles:

According to the principles enunciated in Udny v Udny, a

legitimate child will take the domicile of father, an illegitimate
child and a posthumous child will take the domicile of the
mother.
These rules are quite unsatisfactory in certain circumstances.
Primarily, legitimacy of a child cannot be determined unless a
domicile has been established while on the other hand, a
domicile cannot be established unless legitimacy of a child is
ascertained. Consequently it is difficult to resolve this two-way
debate rationally. The only way to resolve it might be to consider
the child as legitimate if he is regarded so by the law of either
parent's domicile.

Secondly, after the enactment of Domicile and Matrimonial

Proceedings Act 1973 there is no logical basis for the rule that a
legitimate child follows the domicile of the father. The domicile
of a married woman is no longer dependent on her husband.
Therefore, it's not logical that if the parents are living apart, the
child will first take the domicile of origin of father then domicile
of dependence of the parent with whom he is living. This creates
an extremely complex legal situation because the courts first
have to determine the domicile of origin of the child and then his
domicile of dependence. It makes more sense if the child has the
domicile of dependence with whom he is living.

c) Leads to Uncertain Results:

The doctrine of revival of domicile of origin can lead to some

bizarre results. As for instance in Grant v Grant, X, with an
English domicile of origin, went to India where he had a
legitimate son Y. Y, while living in India had a legitimate son, Z,
who also had a legitimate son named W while residing in India.
X, Y and Z intended to go back to England at the age of sixty-five
for retirement but they all died in India before reaching that age.
Despite the fact that W never visited England, it was held that
W's domicile of origin was English.

It is obvious from the facts of the case that even the propositus is
not physically present in his country of origin, even then he is
deemed to be domiciled there, which is a strong drawback of
domicile of origin.

d) Obsolete Principles:

The principles of domicile of origin appear to be out dated in this

modern era. The revival rule of domicile of origin assumes that if
ever a person ceases to have a permanent home in his life, the
most appropriate personal law applicable to him is the law of his
original native home. However in this century where world is
considered to be a global village and the people move from one
place to another, it is more appropriate to associate a person with
a country with which it is most closely connected. A person may
not have any link with his country of origin.

Therefore it is not logical to apply the law of a state where he has

never set his foot. As for example a person with English domicile
of origin acquires a French domicile of choice and never comes
back to England. Afterwards he abandons his French domicile of
choice and decided to move to Australia. On his way to Australia,
he met with an accident and died. According to English courts
his domicile of origin had revived again when he abandoned his
domicile of choice and did not acquire a new domicile of choice.
Therefore the law of England will apply. This rule appears to be
irrational and it is a strong demerit of domicile of origin to apply
the law of a country which a person has willingly abandoned.

4.3 Domicile of Origin as an English tradition:

Apart from its merits or demerits, the emphasis on the domicile

of origin has been an integral part of the English legal
institutions for more than a century now. It is submitted that this
emphasis reflects the policy of respecting the identity of a person.
In general, a person's domicile of origin indicates the country to
which that person instinctively belongs. This might also be one of
the reasons of failure of the law reforms of domicile of origin.
That is why the judges never wanted to make any changes in its
principles and concept.

Thus it can be said now that although proposals for the reform of
domicile of origin were made in the 1950's and carried being
made till the 1980's, during this time the Domicile Bills of 1958
and 1959 were also in consideration but still the domicile of
origin continues, therefore there must be some merit and use of
the domicile of origin that the England is finding it so difficult to
abandon.