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Domicile in Private International Law

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HomeBrud.gifInternational LawBrud.gifDomicile 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:

  1. 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
  2. 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
  3. 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.