Domicile in Private International Law [NOTES]

Today I’m going to cover domicile in Private international law.

Audience: Law students in Tanzania

These notes will discuss;

• the meaning of domicile,
• country of domicile
• rules of domicile
• types/forms of domicile
• domicile vs nationality
• domicile vs residence
• etc.

Let’s get started

Domicile in Private International Law

Domicile simply means a permanent home of a person. It may be defined as the legal system within whose jurisdiction an individual makes his or her home, intending to remain there permanently.

Domicile is a connecting factor that links a person with a particular legal system and the law of his domicile is his personal law.

That law determines, in principle, whether a man or woman has the legal capacity to marry, and how the estate of a deceased person is to be distributed.

If a married person is domiciled in England, the English courts have jurisdiction to dissolve or annul his or her marriage.

If a married person is domiciled in, say, France, then a divorce decree granted by the French courts to or against that person will be recognized in England.

Five important things about a domicile can be drawn from the above meaning.

1. domicile is a legal concept.
2. domicile is connecting factors that connect a person to a legal system
3. the law of domicile operates on a chronological basis.
4. a tentative definition is that a domicile is a permanent home
5. most people’s domicile is regarded as the place where has permanently resided.

What is a country of domicile?

A country of domicile means a country within which a person makes it his or her home and intends to remain there permanently.

It is not necessary for the country of domicile to be the country where a person was born.

General rules regarding domicile

These general principles were first clearly enunciated by Lord Westbury in Udny v. Udny in (1869) 1 LR Sc. & Div. 441 HL.

Rule No. 1: No Person Can Be Without a Domicile

A domicile is attributed to a person by law as his domicile of origin or of dependence.

He/she will keep such a domicile unless and until he attains another by choice, and if he abandons a domicile of choice his domicile of origin will revive and be his domicile unless and until he acquires another domicile of choice.

This inability of anyone to be without a domicile makes domicile preferable as a connecting factor for determining the personal law to any other, since a person can be without a residence, a home, or a nationality but not in the case of domicile.

In Mark v Mark [2005] UKHL 42 at 37, it was illustrated that

a person may at least have a domicile of origin at his birth, if he is a legitimate child, the domicile of his father, if he is an illegitimate child, the domicile of his mother, if he is foundling, the place where he is found, this domicile prevails until a new domicile has been acquired. If a person leaves the country of his origin with an undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country.

Rule No. 2: A Person Cannot Have Two Domiciles

Justification for this rule can be found in Mark’s case as cited above.

The aim of the law is to have a definite legal system that can apply to a person, therefore, is impracticable to allow a person to possess more than one domicile.

Rule No. 3: Domicile Connote Connection

Domicile connote connection with a single system of territorial law does not necessarily connote a system that prescribes identical rules for all classes of persons it may have different rules applying for different classes of persons within one territorial law.

Rule No. 4: Continuance of an Existing Domicile

There is a presumption in favor of the continuance of an existing domicile. Therefore the burden of proving a change lies in all cases on those who allege that a change has occurred.

The standard of proof is that which is used in civil actions-on balance of probabilities.

Rule No. 5:Domicile of A Person Will Be Determined According To Local Law

The domicile of a person will be determined according to local law and not a foreign concept of domicile.

This was insisted in the case of Lawrence vs. Lawrence (1985)  that subject to the statutory exceptions, the domicile of a person is to be determined according to the local law and not the foreign concept of domicile.

Forms/Type of Domicile and How it is Establish

There are three forms or types of domicile, which include domicile of choice, origin, and domicile of domicile.

Domicile of Origin

Domicile of origin is a form of domicile which is acquired by birth. In most cases, a child acquires the domicile of his father.

Domicile of origin depends on the domicile of one parent at the time of birth, and not where a person is born nor where parents were residing at the time of birth.

This attributed domicile is indelible and remains with the person throughout his life, even if for much of the time or, indeed, always, it is overlaid by another sort of domicile. It is very difficult for a person to lose this kind of domicile.

An example in the case of Winans v Attorney General, [1904] AC 287 in which William Winans who was born in Baltimore USA in 1823 and live there in 1859, went to England and lived there all his life at various places until his death in 1896, he lives in England for almost 37 years.

He built railways in Russia and helped that country in the Crimean War (1853–56) by constructing gunboats. He retained plans for his properties in Baltimore. He disliked England and appeared to be without friends.

The evidence indicated that his sole remaining ambition was to enable the USA to acquire world maritime supremacy at the expense of England. On his death in 1896, the question arose as to his place of domicile, in judgment Lord Macnaghten emphasized that domicile of origin is more enduring than the domicile of choice.

Domicile of origin as a tendency of revival in a case where one loses other types of domicile the domicile of choice or dependency, it never totally lost, if one acquires a new domicile, we may say it performs a gap-filling function if a person appears to be without a domicile then domicile of origin revives, this was clearly indicated by Lord Westbury word in Udny v Udny where he said that;

“as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles, of which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished”

In the same case, it was indicated that the domicile of origin of a child born under wedlock (legitimate) depends on the domicile of his father, and the domicile of the mother if illegitimate.

From the discussion above it follows that the factor used to determine the domicile of origin is depend on the domicile of his parent, the father if the person is an illegitimate child, and the mother if the person is an illegitimate child.

The domicile of the parent or guardian is one that takes into consideration in determining the domicile of origin.

But this domicile may be abandoned or lost by the acquisition of a domicile of choice, as what Colonel Udny do to his original domicile of Scotland after abandoning it and acquiring England’s Domicile.

Domicile of choice

Domicile of choice is a form or type of domicile in which a person after attaining the age of majority will have the right to acquire a new domicile in substitution for that which he has at present possessed.

For instance, If S is a domicile of Malawi and later on has an intention to live in Zambia and then, later on, have a residence in Zambia without the intention of returning back to Malawi, then S will acquire the domicile of Zambia as her domicile of choice.

Factors Considered In Establishing Domicile of Choice

There are two requisites for the acquisition of a fresh domicile(domicile of choice)thus residence (factum) and intention(animus) it is of at most importance that the person in question established his residence in a certain country with the intention of remaining there permanently.

Residence (factum)

This refers to physical presence in a certain country in which a person intends to be a resident. Long residence and short do not prove or negate domicile.

However long residence may go some way to demonstrating the factum but it will still be necessary to show the animus.

As was provided in the case of Ramsay v Liverpool Royal Infirmary where the court declared that, the deceased had not acquired domicile even after living in Liverpool for thirty-six years.

Also the same was stated in several other cases such as Winans v AG and Jopp v Wood where parties in both cases had stayed in their places for a long time but failed to acquire domicile.

An intention(animus)

An intention to reside (animus) to continue living there permanently or for an unlimited period of time, to decide if a person has the intention to take a place as his/her domicile, the conduct of the person and the surrounding circumstances are taken into consideration.

The intention of the person must not be subject to any conditions such as an intention to reside for a definite period, for example, six months, and then leave or an intention to reside in a territory until a definite purpose is achieved, for example, to leave when a particular project is completed such as termination of his/her employment.

Such conditional animus is not sufficient to establish domicile as it was provided in the case of Cramer v Cramer, where a woman with a French domicile of origin went to England intending to remain there and marry an Englishman who at that time was married.

Her intention to remain was conditional on both herself and her proposed husband obtaining divorces and on their relationship continuing but since such did not happen she failed to acquire domicile.

These factors have to operate together in order to establish domicile, as such was stated in the case of Winans v AG,  where it was provided that though the deceased had stayed in Britain all his life the court had established that he had not acquired a domicile of Britain since it was proved that he lacked intention due to his hatred of Britain and after examination in detail of his life.

Also in the case of Jopp v Wood, where it was held that the deceased had not acquired a domicile in India even after living there for twenty-five years since he had the intention of one day returning to his land of birth. Hence the duration of the residence will not be an essential factor in establishing a domicile but rather should be supported by the intention of the propositus.

Hence in most cases, the emphasis is on the animus rather than the duration of residence.

Thus even a short period can be sufficient if there exists an intention to reside.

The fact that a brief residence may be sufficient to establish a new domicile is important if the domicile has to be established shortly after an individual has arrived in a new country in which he intends to live permanently.

For example, in the case of White v Tennant, where a family was moving home. The man abandoned his home in State A and moved about half a mile to his new home in State B.