Domicile (law)

Conflict of laws
Preliminiaries
Characterisation Incidental question Renvoi · Choice of law Conflict of laws in the United States Public policy Hague Conference
Definitional elements
Jurisdiction Procedure Forum non conveniens Lex causae Lex fori · Forum shopping Lis alibi pendens
Connecting factors
Domicile · Lex domicilii Habitual residence Nationality · Lex patriae Lex loci arbitri · Lex situs Lex loci contractus Lex loci delicti commissi Lex loci actus Lex loci solutionis Proper law Lex loci celebrationis Choice of law clause Dépeçage Forum selection clause
Substantive legal areas
Status · Capacity · Contract Tort · Marriage · Nullity Divorce (Get · Talaq) Property · Succession Trusts
Enforcement
Enforcement of foreign judgments Mareva injunctions Anti-suit injunctions
v · d · e

In law, 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.

Traditionally many common law jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws and would, for example, only recognize a divorce conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted.

Outline of the concept

In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children become adult at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go. Hence, if according to the laws of their domicile a person has the right to marry multiple spouses, the marriages should not alternate between valid and invalid every time they cross a state boundary where the laws are different. If someone is an infant and therefore has reduced contractual capacity, that will tend to apply wherever they go. Furthermore, when a person dies, it is the law of their domicile that determines how their will is interpreted, or if the person has no valid will, how their property will pass by intestate succession.

Domicile should be distinguished from nationality which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two may be the same. However, where the country is federated into separate legal systems, nationality and domicile will be different. For example, one might have American nationality and a domicile in Texas, or British nationality and a domicile in Scotland. Further, one can have dual nationality but not more than one domicile at a time. A person may have a domicile in one state while maintaining nationality in another country. Unlike nationality, no person can be without a domicile even if stateless.

Domicile is distinct from habitual residence where there is much less focus on future intent. Domicile is being supplanted by habitual residence in international conventions dealing with Conflict and other private law matters.

“Domicile” has a somewhat technical legal meaning in common law jurisdictions and should not be confused with: (1) “Domicile” in civil law jurisdictions. (2) “Domicile” in EU regulations and international treaties (where a definition often overrides the common law sense of domicile). (3) “Domicile” in ordinary English usage.

The rules determining domicile in common law jurisdictions are based on case law in origin. Most jurisdictions have altered some aspects of the common law rules by statute, the details of which vary from one jurisdiction to another. The general framework of the common law rules has however survived in most jurisdictions and is in outline as follows:

Domicile of origin

Dicey states the common law rule 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 country 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 country in which his mother was domiciled at the time of his birth;

(c) A foundling has his domicile of origin in the country in which he was found.

(2) A domicile of origin may be changed as a result of adoption, but not otherwise.^[1]

In some jurisdictions the status of illegitimacy has been abolished, and slightly different rules apply where parents have differing domiciles.

Domicile of choice

Dicey states the common law rule thus:

Every independent person can acquire a domicile of choice by the nation of residence and intention of permanent or indefinite residence, but not otherwise.^[2]

A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely ( not based on the immigration status,but based on the social & moral status ), and not otherwise.

When a domicile of choice is abandoned, either

(i) a new domicile of choice is acquired; or

(ii) the domicile of origin revives.^[3]

The rule that the domicile of origin revives on abandonment of a domicile of choice has been altered in some jurisdictions.

Domicile of dependency

Dicey states the common law rule thus:

The domicile of a dependent person is, in general, the same as, and changes (if at all) with, the domicile of the person on whom he is, as regards his domicile, legally dependent.^[4]

In particular, during minority, a child's domicile of dependency changes to match that of the adult on whom the child is said to be dependent.

U.S. law

Each state of the United States is considered a separate sovereign within the U.S. federal system, and each therefore has its own laws on questions of marriage, inheritance, and liability for tort and contract actions. Persons who reside in the U.S. must have a state domicile for various purposes. For example, an individual can always be sued in their state of domicile. Furthermore, in order for individual parties (that is, natural persons) to invoke the diversity jurisdiction of a United States district court (a federal trial court), all the plaintiffs must have a different state of domicile from all the defendants (so-called "complete diversity").^[5]

United Kingdom Law

The rules are in short as set out above. The Domicile and Matrimonial Proceedings Act 1973 abolished the rule that a married woman had the domicile of her husband (with transitional rules for those married before 1 January 1974). The rules dealing with the domicile of minors differ slightly between England and Wales (governed by the Domicile and Matrimonial Proceedings Act 1973) and Scotland (governed by Section 22 Family Law (Scotland) Act 2006). ^[6]

See also

• Hauptwohnsitz - concept of main domicile in Austrian and German law
• UK Tax Domicile

References

1. ^ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-025.
2. ^ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-033.
3. ^ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-033 and 6R-074.
4. ^ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-078.
5. ^ Sun Printing & Publishing Association v. Edwards, 194 U.S. 377 (1904).
6. ^ Taxation of Non-Residents and Foreign Domiciliaries 10th ed 2011, James Kessler QC (for UK law).

External links

1. Taxation of Non-Residents and Foreign Domiciliaries in UK law
2. - HM Revenue and Customs (Official Website)