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Faculty of Law, Jamia Millia Islamia- New Delhi

Project Paper on
Concept of Domicile under Private International Law

Under the guidance of:


Prof. Kahkashan Y. Danyal JMI, New Delhi)

Submitted by:
Tasaduq Suhail Sheikh (LL.M. II Semester)
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Table of Contents

S. No. Content Title Page


No.

1. Introduction………………………………. 3

2. General Rules of Domicile…………………. 5

3. Acquisition of Domicile of Choice…………….…. 5

4. The Burden of Proof……………………….. 7

5. Change of Domicile and Change of Nationality………. 8

6. Domicile and Nationality Contrasted……………. 8

7. Merits and Demerits of Domicile……..……… 8

8. Domicile of Origin and Domicile of Choice……… 9

9. Comparison between Domicile of Origin and Choice….. 12

10. Concept of Residence……………………. 13

11. Ordinary Residence……………….…… 13

12. Habitual Residence………………….…. 15

13. Domicile of Dependents…………………… 19

14. Married Women………………………… 19

15. The Abolition of Dependency in U.K……………. 24

16. Reforms and Conclusion…………………… 24


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Introduction

Domicile is the connecting factor traditionally used in common law systems. It


has typically been a tricky concept to define but domicile is generally regarded
to be the place where one has, or is deemed by law to have, his permanent
home, thus giving effect to a relationship between an individual and a single
system of territorial law. No person can be without a domicile, even if they lack
a permanent home. Similarly, a person who owns more than one home cannot
have more than one domicile at any given time. An existing domicile is
presumed to continue until a change is proven by the propositus on the balance
of probabilities. There is no uniform concept of domicile and so interpretation
of its meaning is largely left open to the lex fori;1 however, a definition of
domicile is given statutory effect in the Civil Jurisdiction and Judgements Act
1982 and 199 , the Inheritance Tax Act 1984 and the Brussels I Regulation. 2
Habitual residence, on the other hand, is becoming ever more popular as a
connecting factor, both in allocating jurisdiction and applicable law. This is
principally due to the increasing use of habitual residence in modern
harmonisation instruments, particularly in the field of family law but also in the
commercial arena. Currently habitual residence lacks any specific meaning and
has been left open for judicial interpretation. The absence of a definition from
any of the legislating instruments it appears in is intentional in order to move
away from ‘technical rules which can produce rigidity and inconsistencies as
between different legal systems’3 such is associated with concepts of domicile
and nationality. Nonetheless, case law does provide some guidance on how it
works in practice. This openness of interpretation means that determination of

1
The law of the country in which an action is brought.
2
(44/2001).
3
All Answers ltd, 'Domicile In Common Law Systems' (Lawteacher.net, April 2019)
<https://www.lawteacher.net/free-law-essays/commercial-law/domicile-in-common-law-systems-
commercial-law-essay.php?vref=1> accessed 8 April 2019.
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its meaning may vary considerably from one territory to another and may even
cause friction within the hierarchy of legal system.4

It has been universally recognized that questions affecting the personal status of


a human being should be governed constantly by one and the same law,
irrespective of where the facts giving rise to the questions may have occurred.
But unanimity goes no further. In England it has been long settled that questions
affecting status are determined by the law of the domicile of the porosities and
that, broadly speaking, such questions are those affecting family relations and
family property. To be more precise, the following matters are to a greater
or lesser extent governed by the personal law; 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, though only to a limited degree,
legitimacy, legitimating and adoption; wills of movables and intestate
succession to movables. The concept of Domicile in Common Law and Civil
Law are distinct and different from each other to a great extent. In Common
Law domicile means equivalent of a person's permanent residence and in civil
law it means habitual residence. Though the common law variant may seem
very simplistic, there are two variant of the Domicile Theory, they are Domicile
of Origin and Domicile of choice. Domicile of Origin is communicated through
operation of law to each person at birth, i.e., domicile of the father or the
mother, dependent on the legitimacy of the offspring. Domicile of Choice is that
domicile that any person of full age is free to possess instead of the one he
already possesses. The English rule is marred by rules that are very complex
and often leads to uncertainty in its outcome.

4
Ibid.
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According to WW Cook5, the “single conception theory” English law takes the
view that any test that determines place of a person's domicile must remain
constant no matter what the nature of the issue may be before the court.
General Rules of Domicile
There are five general rules that apply to the concept of Domicile. They are:

1. No person shall be without domicile. To bring into effect this rule the law
assigns to every person a domicile of origin to every person at birth, namely to a
legitimate child. The domicile of the mother to an illegitimate child and to
foundling place where the child is found.
2. A person can never have two domicile. This is to ensure that several factors
and domiciles don’t hurt his life. Therefore for practical reasons it is necessary
that a person shouldn't possess more than domicile. This is also called the law of
the “Law district”.
 3. The fact that a domicile might signify a connection with a single system of
law, but the same law might not apply uniformly to all the classes of that people
of that particular domicile.
4. There is always a presumption that a domicile is ever continuing, the burden
of proof lies on the porosities to prove that it has changed. This factor may have
a decisive effect on his case, as the law applied will change drastically.
5. Subject to other statutory exceptions the concept of domicile shall always be
decided according to the English concept notwithstanding any other foreign
concept of law.
Acquisition of Domicile of Choice
The two requisites for acquiring a domicile of choice are residence and
intention. It must be proved that the person in question established his residence
in a certain country with the intention of remaining there permanently. Such an
intention however unequivocal it maybe per se does not suffice. These two
5
Logical and Legal Bases of Conflict of Laws, Harvard University press, 1942.
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elements of residence and intention must concur, but this is not to say there
need be unity of time in their concurrence. The intention may either precede or
succeed the establishment of the residence. The emigrant forms his
intention before he leaves England for Australia; an emigrant who flees
persecution may not form it until years later. Acquisition can be done through
the following means:
 A) Residence
In IRC V. Duchess of Portland6, it was held that Residence in a country for the
purposes of the law of domicile is physical presence in that country as an
inhabitant of it. Whatever weight is given to the length of residence it is
undeniable that time is not the sole criterion of domicile. Both long residence
and short residence does not constitute negative domicile everything depends on
the attendant circumstances, for they alone disclose the nature of the person’s
presence in a country. In short, the residence must answer “a qualitative as well
as a quantitative test”. Thus in Joppa V. Wood 7it was held that a residence of
twenty- five years in India did not suffice to give a certain John Smith an Indian
domicile because of his alleged intention ultimately to return to Scotland, the
land of his birth.
B) The Requisite Intention
a) The nature of intention to reside permanently or for an unlimited time in
a particular country is required for the acquisition of domicile of choice. This
may however not pose any difficulty as the word “permanently” is used in its
ordinary meaning as signifying the opposite of temporary. The word;
“permanent” according to the Shorter Oxford English Dictionary means “lasting
or designed to last indefinitely without change” and this indeed is the definition
that most of the judges have recognized when require to consider the nature of
intention necessary for a change of domicile. In Udny V. Udny,8 for instance,
6
 [1982] STC 149 
7
[1967] ARZ 606
8
1869) 1 LR Sc and Div 441, (1869) LR 1 HL 441
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Lord Westbury described the intention as being one to reside “for an unlimited
time”. A more modern statement to the same effect is that of Scarman J, who
referred to an intention to reside “indefinitely”.
b) Evidence of Intention:
Most disputes as to domicile turn on the question whether the necessary
intention is accompanied with residence, and this question often involves very
complex and intricate issues of fact. This is because “there is no act,
no circumstance in a man’s life, however trivial it may be in itself, which ought
to be left out of consideration in trying the question whether there was an
intention to change the domicile. A trivial act might possibly be weightier with
regard to determining this question than an act which was of more importance
to a man in his lifetime. Therefore to assess whether there is an intention to
acquire a particular domicile, there should be an evidence of intention that
should be looked for.
 c) Voluntary Residence:
There may be several circumstances where there maybe doubt about the
willingness of the person to acquire a particular domicile. There are certain
categories of persons who fall suspect in this category:
1) Prisoners: A prisoner retains the domicile of the country which he left before
he was imprisoned.
2) Refugees: In the case of Refugees it becomes difficult, as the factors that
forced to them to flee their domicile, and take residence at a new place, might
make become a matter of choice later on. Although there is a presumption
against the loss of domicile.
3) Fugitives from Justice: If a man leaves his domicile to escape
the consequences of a crime, the presumption is that he has left the place
permanently and that there is a fresh acquisition of a fresh domicile.

The Burden of Proof


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An alien living in England under a certificate of registration is liable


to deportation does not prevent him from acquiring an English Domicile of
his choice, or deprive him of a domicile already acquired. Therefore a person of
foreign origin living in a country for a time which qualifies him for a domicile
of that county may acquire the domicile of that country even though he is still. The
burden of proof that lies on those who allege a change of domicile varies with the
circumstances. In this connection there are two observations that may be made. First,
English Judges have taken the view that it requires far stronger evidence to
establish the abandonment of a domicile of origin in favor of fresh domicile than
to establish the abandonment of a domicile of origin in favor of a fresh domicile than to
establish a change from domicile to another. And by way of contrast, there is authority for
the view that a change of domicile from one country to another under the same
sovereign. It is not to be lightly inferred that a man intends to settle permanently
in a country where he will possess the status of an alien, with all the difficulties and conflict
of duties that such a status involves.
Change of Domicile and Change of Nationality
It is important to emphasize that nationality and domicile are two different
conceptions and that a man may change the latter without divesting himself of
his nationality. The mere fact that holds the citizenship of that foreign country.
Domicile and Nationality Contrasted
 Nationality represents a person‟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 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 person may be a national of one country but domiciled in another. At present 
many countries in Europe andSouth America adopt nationality as the criterion
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of personal laws, whilst the common law jurisdictions of the commonwealth


and the USA, among others, still stand by test of domicile.
Merits and Demerits of Domicile
The English preference for domicile is based on two grounds. First domicile
means the country in which a person has established his permanent home and
secondly domicile furnishes  the only practicable test in case of
political units as U.K., Canada, Australia where the same nationality emb-
races a number of diverse legal systems. The expression national law is
meaningless when applied to a British national because it is one system in
England another in Scotland same is the case for a Canadian. The law related to
domicile has certain vices. It will not infrequently happen that the legal
domicile of a person is out of touch with reality, for exaggerated importance
attributed domicile of origin, coupled with technical doctrine of revival, may
well ascribe to
a person a domicile in the which by no stretch of the imagination can be called his home. 
Also country equally irrational results may ensure from the view, sometimes inspired by
the English Courts that long residence is not equivalent to domicile if
accompanied by the contemplation of some uncertain event the occurrence of
which will cause a termination of residence. Thirdly, the ascertainment of a
person’s domicile to such an extent on proof of his intention, the most elusive of
all factors, that only too often it will be impossible to identify it with certainty
without recourse to courts.
Domicile of Origin and Domicile of Choice
Domicile of Origin:
It is a well-known principle that no person can be without a domicile. For the
practicality in applying this rule the law confers a domicile on every person on
birth. This is known as the domicile of origin. It continues to exist as long as the
concerned person does not acquire another domicile. Even if a person with a
10 | P a g e

view to acquire another domicile gives up his domicile of origin, it will continue
to exist as long as he does not acquire a new domicile. The moment a person
gives up his domicile of choice, his domicile of origin revives. Since domicile
of origin is attributed to every person at birth by operation of law, the basis of
domicile of origin is paternity or maternity. According to English private
international law legitimate child born during the lifetime of father has his
domicile in the country in which his father was domiciled. A legitimate child
born after the death of the father has domicile in the country in which the
mother was domiciled at the time of his birth. An illegitimate child has the
domicile in the country in which his mother was domiciled at the time of his
birth. This is also the position in Indian law except that the legitimate child born
after the death of his father has his domicile in the country in which the father
was domiciled at the time of his death. Thus the domicile of origin is not
dependent upon the place where a child is born, or on the place where a child is
born, but on the domicile of the father or mother, as the case may be. There is
only one exception to his rule, viz; domicile of founding is the domicile of the
country in which he is found. Domicile of origin is a creature of law and no
person can give it up totally. Every person must have a domicile and the
domicile of origin continues to exist till a person acquires a new domicile. For
the revival of the domicile of origin it is necessary that the domicile of choice
should be abandoned voluntarily. Another important aspect of the domicile of
origin is that it automatically revives by operation of law on the abandonment of
the domicile of choice, whatever time might have elapsed after its
abandonment. This rule results in arbitrariness and injustice. The Indian
Succession Act, Section 13 provides:
“A new domicile continues until former domicile is has been resumed or
another has been acquired. Thus under Indian law of domicile of choice
continues until a new domicile is acquired or the domicile of origin is resumed
amino et facto.
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In the United States also the rule is different; the previous domicile, whether of
origin or choice, is retained till a new one is acquired.
Domicile of Choice:
Any independent person may acquire a domicile of choice. Whether a person
has capacity to acquire a domicile of choice is determined by the law of his
existing domicile. Under English law, before coming into force of the Domicile
and Matrimonial Proceedings Act, 1973, a minor, lunatic and married woman
had no capacity to acquire a domicile of choice, while under the Indian law a
married woman can acquire a domicile of choice under certain circumstances.
For the acquisition of domicile of choice the following two conditions must be
satisfied
1) Residence in the country of domicile of choice, and;
2) Intention to live in the country of domicile of choice permanently. The Indian
Succession Act, 1925, Section 10 lay down, “A man acquires a new domicile by
taking up his fixed habitation in a country which is not that of his domicile of
origin”. Intention may precede the residence, but the coexistence of intention
and residence is essential for acquiring domicile of choice. The residence of a
person is a tangible fact, from which intention may be inferred, while intention
is an intangible fact which can be gathered from certain facts in which it is
manifested. “Residence” is an elastic term of which no exhaustive definition is
possible. It is differently construed in accordance with the purpose and the
context in which it is used. The meaning of the term and the sense in which it is
used are controlled by reference to the object. In Kumund  V. Jotindranath9 the
Calcutta High Court held that residence means a place where a person eats,
drinks and sleeps, or where his family or servants eat, drink and sleep. Intention
is an act of mind and like other mental facts it can be gathered from all events
and circumstances of the life of a person. The intention must be fixed and not
fickle and must be directed towards one particular place or country. In the case
9
(1911) 38 Cal. 394
12 | P a g e

of refugees they may go to another force not voluntarily but due to pressure of
circumstances and later they may
settle down there. “What is dictated in the first instance may become choice in
next instance”. In that case they may acquire domicile of the country of his
refuge. In the Indian case of Mandal  V. Mandal10 two Austrian domiciled
persons were married in Vienna in 1936. In 1939, on the invasion of Austria by
Nazi Germany they fled to India. Since they lived in India and had no intention
of returning to Austria. A full bench of the Punjab High Court held that they had
acquired a domicile of choice in India. In case of fugitives there exist two
categories. Those who go to another country to escape from the consequences
of their crime and those who escape from their civil liabilities. In such cases
there arises an inference that they have acquired domicile of choice in the new
country even though their departure was not voluntary but it can only be
confirmed with the length of stay of the fugitive. Similarly if there is no
possibility of fugitive escaping punishment in case here turns to his country,
then it would be a natural inference that he intended to acquire a new domicile
of choice in the country which has given him refuge. In the case of invalids
those who permanently settle down in another country because of suitability of
climate naturally acquires domicile of choice but those who go to
another country for a temporary stay does not acquire domicile. In case of
public servants like Ambassadors, consuls the natural inference is that they do
not acquire domicile of choice in such countries but if a public servant
continues to live in that country even after his discharge from duties then he
may acquire domicile of choice in that country.

Comparison between Domicile of Origin and Choice


The domicile of origin comes into existence by operation of law; independently
of the volition of a person and every person gets it on birth. On the other hand,
10
ILR (1956) Punj. 215
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the domicile of choice is a domicile which is acquired by the free volition of the
person concerned. For its acquisition the existence of animo et facto is
necessary. There is a very strong presumption in favour of the continuance of
the domicile of origin. In comparison with domicile of choice, domicile of
origin, in the words of Lord McNaughton “is more enduring, its hold is stronger
and less easily shaken off”. Domicile of origin cannot be abandoned easily.
Since it is a creature of law and not of free will, domicile of origin cannot be
lost by mere abandonment. Until a domicile of choice is acquired, the domicile
of origin continues. In Bell V.  Kennedy11 Bell, who had his domicile of origin in
Jamaica, with a view to acquire a domicile of choice in Scotland left Jamaica.
He reached Scotland and lived there with his mother-in-law and was looking for
an estate to purchase. Yet he had not firmly made up his mind to settle in
Scotland. Then his wife died. The Court held that till then he had not lost his
domicile of origin. On the other hand, the domicile of choice is lost by the
moment it is abandoned. If a new domicile of choice is not acquired the
domicile of origin revives. Another outstanding feature of domicile of origin is
that it is never lost; when a domicile of choice is acquired, it remains in
abeyance. As soon as the domicile of choice is abandoned or lost it immediately
revives, even if all contacts with the country of the domicile of origin have
been lost.
Concept of Residence
Dissatisfaction with nationality as a connecting factor has led to a realization of
the defects of domicile also. This has several consequences. One has been
attempts in England to reform the concept of domicile. The failure, over many
years to reform domicile has led, it its turn, to a tendency to reject it as a
connecting factor in favor of residence. One of the main forces in this direction
has been the fact that the Hague Conventions have relied on “habitual
residence” as a connecting factor. The Rome Convention on contract choice of
11
1868) L.R 1 Sc & Div. 307
14 | P a g e

law also utilizes this concept, but now in the commercial sphere. The wheel has
been turned full circle as purely domestic legislation has also adopted “habitual
residence” as a major connecting factor in
matrimonial jurisdiction. Nonetheless, although habitual residence is increasingl

being used as an alternative connecting factor, it would be wrong to induce a
general substitution of habitual residence for domicile. For the
connection between a person and a country provided by habitual residence is
not sufficiently strong to justify that persons affairs always being determined by
the law of that country.
 
Ordinary Residence
“Ordinary Residence” has been known as a connecting factor in English law for
some time. It used to form a basis for service of a claim form out of the juris-
diction; it used to be a basis of jurisdiction in matrimonial causes in the case of
a petitioning wife; it used to be a criterion for obtaining security for costs; it is a
significant connecting factor for the purposes of immigration and social security
law; it is an important connecting factor in taxation statutes; it has been the
criterion used for determining eligibility for a mandatory student award from
the local authority; used as the basis for determining whether a student is a
home or overseas student for the purpose of payment of university fees, and for
designating the local authority to be responsible in a care order. There is some
authority on the meaning of “ordinary residence”, though its precise meaning
has caused difficulty. One judge went so far as to say that the adjective adds
nothing to the noun. Lord Scarman in giving the judgment of the House of
Lords in Shah V. Barnet London Borough12 said that this adjective brings out
two important features of ordinary residence, namely residence must be adopted
voluntarily, i.e. not by virtue of kidnapping or imprisonment, and for settled
12
1983] 3 All ER 226
15 | P a g e

purposes, which can include for the purposes of “education, business or profess-
ion, employment, health, family or merely love of the place”. The words “ordin
aryresidence” should be given their natural and ordinary meaning, and not an
artificial legal construction, which will be the same regardless of context unless
it can be shown that the statutory framework requires a different meaning.
Ordinary residence does not connote continuous physical presence, but physical
presence with some degree of continuity, notwithstanding occasional temporary
absences. It is a question of construction of a statute whether the word “lawful”
should be implied so as to qualify the ordinary residence. Moreover, it can be
argued that, as
a matter of general principle, a person should not benefit from his own unlawful
conduct. Each case must, of course, depend on its own peculiar facts but the
authorities show that even absence for a considerable time will not terminate a
person’s ordinary residence if it is due to some specific and unusual cause.
Again, the significance of a comparatively prolonged absence will be weakened
if, during the relevant period, the propositus has maintained a house or flat
in England ready for immediate occupation.

Habitual Residence
The courts have repeatedly followed the judgment of Lord Scarman in R V.
Barnet London  Borough Council, ex  p Shah,13 holding that there is no
difference in principle between the traditional concept of ordinary residence and
the more fashionable concept of habitual residence and that they both refer to a
person’s abode in a particular place or country which he has adopted voluntarily
and for settled purposes as part of the regular order of his life for the time being,
whether of short or of long duration. Habitual residence is a concept without the
various legal artificialities of domicile, such as the doctrine of revival and
analogies with that concept are not appropriate.
13
[1982] Q.B. 688
16 | P a g e

Residence
Before a child or adult can be habitually resident in a country he must be
resident there. This does not necessarily require physical presence at all times.
Temporary absence, for example on holiday or for educational purposes or for
an attempt to effect reconciliation with an estranged spouse will not bring an
end to habitual residence. Indeed, it can continue despite considerable periods
of absence. A habitual residence in England has been held to continue despite a
period of some two years nine months residing in Hong Kong.
However, it is a question of statutory construction whether the world “lawfully”
should be implied into a statutory provision which uses the concept of habitual
residence. Indeed, it is only right that persons with longstanding links with
England should have their personal affairs dealt with in England and subject to
English Law.
 A Period of Time
The formulation in Re J (A minor) (Abduction: custody rights)14 requiring
residence for a n appreciable period of time, has been followed in numerous
cases. However, more recently the House of Lords in Nessa V. Cheif
Adjudication Officer15 has adopted rather different wording. Lord Slynn said
that, as a matter of ordinary language, a person is not habitually resident in any
country unless that person has taken up residence and lived there for a period
which shows that the residence has become “habitual” and will or is likely to
continue to be
habitual. It follows that there may be a gap between habitual residence in one
state and acquisition of habitual residence in another. A person may have no
habitual residence at all. However, it may be that for the purposes of making a
particular legislation effective, an example being the founding of jurisdiction, it
may be necessary that a person is habitually resident in some state. In other
14
1990] 2 AC 562

15
[1999] 1 WLR 1937
17 | P a g e

words, there would not be a gap. It is a question of fact whether and when the
requisite habitual residence has been established. This depends very much on
the circumstances of the particular case. In V V. B (A minor) (Abduction)16 an
habitual residence was acquired after less than three months‟ residence in
Australia, the parties according to the plaintiff, having decided to settle there.
 A settled intention
There must be a degree of settled intention or purpose. This is not concerned
with being settled in a country. There is no need to show a person intended to
stay there permanently or indefinitely. The settled intention can be for a limited
period, a period limited by the immediate purpose such as employment, even sh
ort-termemployment of no more than six months. Thus a person can be
habitually residence in a country even though he intends at some future date to
move to another country. In Watson V. Jamieson there was a settled purpose
where children went to live with their father in Scotland for two years, the
understanding between the separated parents from the outset being that the
children separated would then go to live with their mother, who lived in New
Zealand for two years. The children were held to be habitually resident in
Scotland. The longer the period of residence, the easier it becomes. Thus in M
V.  M (Abduction: England and  Scotland)17 it was clearly important in finding
this settled purpose that the parties had actually been living in Scotland for as
long a period as two years. In these cases involving a period of short residence,
the residence was for a temporary purpose and this was fatal to the acquisition
of a habitual residence. When it comes to establishing an intention to settle, this
was shown in one cases by the fact, inter alia, that the family furniture was sent
to that country.
Voluntarily 

16
 [1991] 1 FLR 266

17
[1997] 2 FLR 263
18 | P a g e

There is a further requirement in relation to adults that the residence must have
been voluntary. A service man who is stationed on a base abroad can be
regarded as voluntarily resident in that country (he could have left the armed
forces if he did not want to accept the posting) and, having made the family
home there, he and his family will take this country as their habitual residence.
 Abandonment 
A person can cease to be habitually resident in a country in a single day if he or
she leaves it with a settled intention not to return it but to take up long term
residence in another country instead. For example, in Moran V.Moran18 the
parents, who were habitually resident in California, agreed that the mother and
child should return to Scotland for a year, whilst the father remained in
California to deal with business problems. It was held that the Child’s habitual
residence ceased as from the date of departure from California. The
abandonment of a habitual residence can take place without acquisition of
another habitual residence somewhere else, with the inevitable result that a
person has no habitual residence. Moreover, because an habitual residence can
be abandoned in one day but not acquired until there has been residence for a
period showing that residence has become habitual, this gap when there is no
habitual residence will correspondingly last for that period. It has even been
accepted that, exceptionally, for the purposes of making particular legislation
effective, it may be necessary to ensure that there is no gap.
Children
The habitual residence of a child is not fixed but may change according to the
circumstance of the parent or other principal carer with whom the child lives
and who is lawfully exercising rights of custody. If the parents are living
together and the child is living with them it will take the parents habitual
residence. There is a

18
1997 SLT 541
19 | P a g e

 problem if the child is born abroad whilst on holiday to parent’s


habitual resident in England. It has been said, obiter, that in these circumstances
it is possible for the child to take a habitual residence in England from Birth.
If both parents have joint parental responsibility, neither parent can unilaterally
change the child’s habitual residence by removing or retaining it wrongfully and
in breach of the other party’s rights. Both parents must consent to the change of
habitual residence. In the unusual situation where a married couple lived with
the children, and yet each parent had a different habitual residence, the habitual
residence of the children could only change if the parents had a common
intention to change their residence.
It follows that before a child can be habitually resident in a country it must be
resident there. Thus for a child’s habitual residence to change to that of another
country the child has to leave the country in which he is resident and reside in
that other country. If one parent has sole lawful custody for the child, his
situation with regard to habitual residence shall be the same as that of this
parents. According to the Court of Appeal, in Re M (Minors) (Residence Order:
Jurisdiction)19 a lawful custody refers to the child being in the physical care of
that parent. If a child has been made a ward of the court, a parent cannot then
change its habitual residence without leave of the court. It is not clear at what
age a person ceases to be a child for the purposes of habitual residence but it is
likely that this is at 16. As with an adult, a child may have no habitual
residence.

Domicile of Dependents
Minors, married women and mentally disordered persons, such as idiots and
lunatics, fall in the category of dependents. In respect of domicile the word
“Dependent” is applied to a person in general who is incapable of having a
19
[1993] 2 FLR 858
20 | P a g e

domicile of his choice. The general rule is that a dependant person has the
domicile of the person he is dependent on. The domicile dependency, as it
sometimes is called, is an imposed domicile and it changes only when the
person on whom the dependent is dependent changes his domicile. A dependent
person can’t abandon his dependency. Thus, a wife who lives separately from
her husband, a minor who ran away from his parents and a lunatic who live s in
another country cannot claim a domicile of their own. It is only in one case that
a dependent can get a new domicile. This happens when a female minor
marries. But then what she acquires is the domicile of her husband. Where the
person on whom they are dependent on dies or if they have no one to depend
on, then the dependent’s domicile cannot change at all. These statements of law
in respect of English law have to be read subject to certain qualifications, since
the Domicile and Matrimonial Proceedings Act, 1973 had made some changes
relating to married women and minor children. Under English private
international law, the capacity to acquire new domicile is governed by English
law and not by the law of the previous domicile or by law of the intended new
domicile.20 There are basically three classes of dependents, viz., minors, married
women and mentally disordered persons.
Married Women
In Gray V. Formosa21 a rule was underlined that, domicile of a married woman
is, during covertures, the same as, and changes with the domicile of her
husband‟, this was the basic common law principle of unity of
the person of husband and wife. According to Blackstone, “By marriage, the
husband and wife are one person in law, i.e., the very being and legal existence
of woman is suspended during the marriage, or at least is incorporated and
consolidated into that of husband, under whose wing of protection and cover
she performs everything… Upon this principle of union of person in husband

20
Re Beaumont, (1893) 3 Ch 490
21
(1963), P. 259
21 | P a g e

and wife, depends almost all the legal rights, duties and disabilities that either of
them acquires by the marriage.” This rule is also expressed by saying that the
husband’s actual and the wife’s legal domicile are one, wherever the wife
maybe residing. By a valid marriage, the domicile of the wife becomes that of
the husband, and the fact that married couple is living apart under separate
agreement, or a husband has deserted the wife, does not render her free to
choose a domicile apart from his. In Lord Advocate  V. Jaffery,22 one Mrs.
Mackinson was married on June 26, 1876 to one Robert Mackinson who was
born in Campbell town, Aberdeen and at the time of marriage was a Chief
Quartermaster in the Navy. On retiring from the Navy in 1886 till 1893, he lived
with his wife in Aberdeen. In 1893, owing to his drunken and dissipated habits,
it was arranged; at the instance of his wife that Mackinson should leave
Scotland for Australia and his passage out was paid by Mrs.
Mackinson’s mother. He reached Sydney and for some time remained in New
South Wales. Sometimes before, June 1902, he went to Queensland and resided
in Brisbane where he died on January 1, 1918. On June 2, 1902, he went
through a form of bigamous marriage with one Willhemina, with whom
he lived until his death, and from whom he had two children. After
his departure from Scotland no communication passed between him
and his wife. In 1915, Mrs. Mackinson, who continued to live in
Aberdeen, filed a petition for divorce on the ground of her husband’s
desertion and adultery. Two main questions before the court were:
a) Whether at the date of Mrs. Mackinson’s petition, Robert Mackinson had
acquired a domicile in Queensland, 
b) If so, whether Mrs. Mackinson had acquired a derivative domicile in
Queensland by virtue of the marriage then subsisting between them. The trial
court was of the opinion that Robert Mackinson acquired a domicile in

22
(1921) 1 A.C. 146
22 | P a g e

Queensland, but that, in the special circumstances of the case, wife’s domicile
remained Scottish; on the latter point the first appellate court reversed the
judgment. The House of Lords affirmed the judgment of the first appellate
court. Lord Dunedin, pronouncing the opinion of House of Lords, quoted the
following passage from the opinion of Sir Cresswell in Yelverton V. Yelverton23
“The domicile of the husband is the domicile of the wife; and even supposing
him to have been guilty of such misconduct as would furnish her with a defense
to a suit by him for restitution of conjugal rights, she could not on that ground
acquire another domicile for herself.” If the marriage is void, the wife does not
acquire the domicile of her husband24.
But if she goes to another country and lives with a putative husband, she may
acquire a domicile of choice there. But if the marriage is void on the ground that
she was already a wife of someone, she cannot acquire a new domicile. Then
her domicile will remain that of her lawful husband.25

The rule that the wife’s domicile is tagged with that of her husband has been
severely criticized. It is evident that in our contemporary world this is socially
most undesirable. Attempts to round of its sharpest corners have been statutory.
The Domicile and Matrimonial Proceedings Act, 1973 has now repealed the old
provisions, and a wife is now allowed her own separate domicile. New
jurisdictional rules have been laid down. Thus the English law had gone much
ahead of the suggestion of the Private International Law Committee that a wife
was living separately under a decree of judicial separation should be allowed to
acquire an independent domicile. The Domicile and Matrimonial Proceedings
Act, 1973 makes fundamental changes in the domicile of the wife. The rule of
unity of domicile of husband and wife stands abolished. The act lays down that

23
(1859) 1 S.W. & Tr. 574.
24
White V. White, (1937), P. 111; Mehta V Mehta, (1945) 2 All. E.R. 690; De Reneville v De Reneville, (1948),
P.100 (C.A)
25
Von Lorang V. Adm. Of Austrian Property, (1927) A.C. 641
23 | P a g e

the wife does not acquire the domicile of her husband merely by virtue of her
marriage. Now her domicile is to be ascertained the same way as the domicile
of an independent person is ascertained. Section 1(1) lays down: “… the
domicile of a
married woman as at any time after the coming into force of the section shall,
instead of being same as her husband’s by virtue of only if marriage, be
ascertained by reference to the same factors as in the case of any other
individual capable of having an independent domicile.” The Act came into force
on Jan 1 1974. A woman already married on Jan 1, 1974, retains her husband’s
domicile of dependency (but she retains it, not as a dependent’s domicile but as
of choice or origin), till she acquires another domicile. Sub section (2) provides,
“Where immediately before this section came into force, a woman was married
and then had her husband’s domicile by dependence, she is to be treated as
retaining the domicile in (as a domicile of choice, if it is not also her domicile of
origin.) Unless and until it is changed by acquisition or revival of another
domicile either on or after the coming into force of this section.”26

 In the U.S.A, the rule of unity of domicile of husband and wife is not taken to
the logical end to which it was taken in English law. There, a wife living
separate from her husband, separation not amounting to desertion, can acquire
her own independent domicile; separation maybe by agreement or by a decree
of court.27
 In Indian statutory law also does not follow English law. The Indian Succession
Act 1925, Section 15 and Section 16 incorporate the general rule: on marriage
the wife acquires the domicile of her husband and during covertures her
domicile is the domicile of her husband. Then it is laid down that wife can
acquire her own domicile in the following cases:

26
IRC V. Duchess of Portland, (1982) 2 W.L.R. 367
27
William V. Osenton, 232 U.S. 619.
24 | P a g e

1. If the wife lives separate under a decree of the court.


2. If the husband is undergoing a life sentence.28
 Indian courts have been called upon to dwell in the matter in the several
29
different situations like in the case of Prem Pratap  V. Jagat  Pratap .Here it
was held that the wife’s domicile remains that of the husband even if he deserts
her. Then was the case of Rani Saeeda  Khautan V.  State of  Bihar30 in the wake
of partition. The wife of one Capt. Kumar Singh domiciled in India, left with
her mother to Pakistan. On 14th May 1950 she visited India on a permit issued
by the Indian Commission in Pakistan. On 23 rd July 1950 she was served with a
notice of the Government of India to quit India. In a petition for a writ
of mandamus it was argued on behalf of the wife that she, being the wife of
Indian domiciled person, was domiciled in India and thus, cannot be asked to
quit India, since by going to another country or by any other act of her she could
not, during her marriage’s subsistence acquire any domicile of her own. Her
plea was accepted by the Patna High court. Substantially the Allahabad High
court also accepted the plea of the wife. Justice Mallick, referring to Section 16,
Indian Succession Act, 1925said that during the subsistence of covertures in the
domicile of the wife is the domicile of her husband.31
 It is quite unfortunate to observe that the courts in India tend to blindly follow
their English counter-parts, it is like the persuasive decisions are getting more
importance. Even though English precedents are being quietly followed,
American decisions aren’t given much importance. Our courts should have at least
extended
the principle of separate domicile to those cases where husband and wife are living separate
, or the
husband has deserted the wife.

28
R. Dolphin V. Robins, (1859) 7 H.L.C. 390
29
1944 All 97
30
951 Pat 454
31
Smt. Allabandi V. Union of India, 1954 All. 45
25 | P a g e

The Abolition of Dependency in U.K


Until 1974 the rule was that the domicile of a husband was communicated to his
wife immediately on marriage and it was necessarily and inevitably retained by
her for the duration of marriage. This rule was much criticized as the last
barbarous relic of a wife’s servitude and was abolished under Section 1 of the
Domicile and
Matrimonial Proceedings Act 1973. The domicile of a married woman at any
time on or after 1 January 1974 shall instead of being the same as her husband’s
by virtue only of marriage, be ascertained by reference to the same factors as in
the case of any other individual capable of having an independent domicile.
This means that a married woman is to be treated as capable of acquiring a
separate domicile; though in vast majority of cases she and her husband will,
independently acquire the same domicile. It is, however quite possible for
happily married spouses to have separate domiciles as where, for example, a
student at an English university who is domiciled in New York marries a fellow
student domiciled in England, both intending at the end of their studies to go
and live in New York. The 1973 act also deals with transitional problems of the
domicile of dependence of a wife acquired before 1974. A woman married
before 1974 who therefore acquired her husband’s domicile on marriage is to be
treated as retaining that domicile as a domicile of choice if it was not the wife’s
own domicile of origin, until its changed by acquisition of a new domicile of
choice or revival of the domicile of origin on or after 1st January 1974. This
meant that after that date, the wife’s domicile is not to be treated as dependent
on her husband but as her own domicile of origin, or of choice until she acquires
a new domicile of choice or until her domicile of origin revives.
26 | P a g e

Reforms and Conclusion

Attempts in the 1950s and 1960s at the wholesale reform of the law of domicile
were unsuccessful because they were thought to be too radical. More recently,
the English and Scottish Law Commissions put forward in a join Report a set of
proposals for reform of the major rules which, at least as regards the ease of
change of domicile were more conservative. The Law Commission started off
on the basis that it should be a little easier to acquire a new domicile. To
achieve this, it was proposed that the standard of proof in all acquisition cases
should be the normal civil standard, and that it should be sufficient to show that
a person intended to settle in the country in question for an indefinite period.
When it comes to domicile issues other than that of ease of change of domicile,
a bolder line was taken which would have led to major improvements in the
law. The domiciles of origin, choice and dependency would have been
abolished, to be replaced by a domicile for children and a domicile for adults.
This would have greatly simplified the law. No special tenacity would
have been given to the domicile received at birth and the doctrine of revival
would have been replaced by a rule that an adult’s domicile would continue
until another domicile was obtained. All in law, the Law
Commissions’ proposals represented “a further important step in the process of
improving the structure, effectiveness and fairness of the rules of domicile”, and
were supported by the judges of the Family Division. In Scotland, the law in
relation to the domicile of persons under 16 has been reformed. Influenced, at
least in part, by the Law Commissions’ proposals, Scots law provides that were
the parents are domiciled in the same country and the child has a home with a
parent or with both of them, the child is domiciled in the same country as its
parents.
27 | P a g e

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