Domicile: Private International Law

DOMICILE
PRIVATE
INTERNATIONAL LAW
PROF. JIYA MATHARANI
INTRODUCTION
 The domicile of a person is in the country in which he
either has or is deemed by law to have his permanent
home.
 Two elements are necessary under English law for the
existence of domicile namely:
i. Residence and
ii. intension i.e., the “factum” and the “animus”.
Domicile consists of two elements that must exits
concurrently:
1. Physical presence in the jurisdiction
2. The intent to remain indefinitely
DEFINITION
 The term, “domicile” is not defined under the constitution
of India. The black law dictionary defines the concepts of
the domicile as
“ A person legal home. That place where a man has his

true fixed and permanent home and principal establishment
and to which whenever he is absent he has the intension of
returning”
Central Bank of India ltd. V. Ram
Narain
 The supreme court of India observed that every individual
is regarded as belonging at every stage in his life, to some
community consisting of all persons domiciled in a
particular country the rules as to domiciles are such that
this legal idea may not correspond to social reality.
“SHARAFAT ALI KHAN V.
STATE OF UTTAR PRADESH”
 This case made a significant observation, namely that
although a person may have no permanent home, the law
requires him to have a domiciles and law attribute to him a
domicile in a country which in reality he has no domicile
in.
 Even if a person has more than one home, he may be
credited with only one domicile for any purpose. Likewise
a person may have his home in one country, but may be
deemed to be domiciled in another.
Residence and domicile
 The term “Domicile” has often been used as synonym with
residence but there are certain objection to such usage
 Residence may simply require bodily presence as an in
habitant in a given place, while domicile requires bodily
presence in that place and also the intention to make it
one’s home.
 Therefore ether may be more than one home but there
cannot be more than domicile.

Burden Of proving change of
domicile
 A person is domiciled in the country in which he is
considered to have his permanent home.
 No perosn can be without a domicile an existing domicile
is presumed to continue until it is proved that a new
domicile has been acquired.
 Hence the burden of proof lies on the those who assert it;
Nationality
 Nationality represents person political status where by he
or she owes allegiance to some particular country.
 Apart from cases of naturalization, it depends essentially
on the place of birth of that person or on his or her
parentage.

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 he has left it, if he has
maintained sufficient links with jurisdiction or has not
displayed his intention to leave permanently.
 The Concept of domicile is not uniform through out the
world to civil lawyers in Europe who do not apply common
law it means habitual residence while in common law it is
regard as equivalent to a person’ a permanent home.
Contd.,
 Domicile is what is termed in private international law as a
connecting factor which connects an individuals with a
system of law for the purpose of determining a range of
matters, principally related to his status or property.
 Domicile said to be connecting factors in circumstances like
Legal capacity to marry
Personal capacity to make will
Formal validity of will
Jurisdiction of court in the proceedings for divorce

Contd.,
 Nationality on other hand is a relationship between an
individual and a country.
 Nationality normally confers some protection of the
individuals towards the state.
 Where the State and Country is federated into separate
legal system the two will be different .
 But where the country is federated into separate legal
system the two will be different.
Contd..,
 Nationality represent man’s political Status by virtue of
which he owes allegiances to some particular country;
domicile indicates his civil status and provides the laws by
which his personal rights and obligation are determined
 Nationality depends apart from naturalization 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
national if one country but domicile of some other country
Contd.,
 A person’s nationality is normally an easy matter to
determine where as person’s domicile id frequently quite
difficult to establish.
 The difficulty can spring from the uncertainty of
determining a person on the the available facts, or it may
result from the application of the legal principles relating
to domicile of origin
 These uncertainty may compel those concerned with, for
instance administration of estate to have recourse to legal
proceedings to settle the matter.
Contd.,
 Many aspects of the law relating to domicile result in the
determination of a person's domicile in an artificial and
inappropriate manner.
 For Example.., a man born in New York of Irish Domiciled
parents may acquire a new york domiciled when he reaches
majority; sometimes later he may abandon this domicile od
choice in the neighboring State of New Jersey. Too apply,
Irish law to the certain contrary to the wishes of the
deceased person.
Contd.,
 In Countries such as the United States, Canada, Australia
and Britain, where the same nationality embraces more
than one legal system, the notion of domicile serves as a
practical standards, since it permits the application of the
law of the particular legal system in the State or province,
as the case may be. Nationality does not permit this.
 Thus for Example, since one may speak of the law of the
United States – the notion of nationality as aprinciple is
required.
Contd,.
 Whist a person may have only one domicile, he may have
more than one nationality or he may have none.
 In such cases nationality as a connecting factor may
become complex or in operative.

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DOMICILE

“ A person legal home. That place where a man has his

Legal capacity to marry

Personal capacity to make will

Formal validity of will

Jurisdiction of court in the proceedings for divorce

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