TOPIC THREE

3.0 CONNECTING FACTORS IN PRIVATE INTERNATIONAL LAW

Topic contents

 Introduction

 Domicile (Lex Domicilii);

 Residence.

 Nationality

 summary

3.0 Introduction

This lecture discuss the connection factors in private international law and
their application to determine applicable law. There are various connecting
factors used in different conflict of laws systems in order to determine the
“proper law”. Connecting factors are “indeterminate” if they are not self-
sufficient because their localizing function depends on the use of other more
specific (“determinate”) connecting factors. Indeterminate connecting factors
include the following

(a) Domicile (Lex Domicilii);

(b) Residence.

(c) Nationality

3.1 Domicile and Residence

Domicile, which is a private international law or conflict of laws concept,

identifies a person, in cases having a foreign element, with a territory subject to
a single system of law, which is regarded as his personal law. Ordinarily, it
means a permanent home or place where a person resides with the intention of
remaining there for an indefinite period. Domicile is not the same thing as
Page 1 of 9
residence. Residence implies a purely physical fact, the fact of just being and
living in a particular place. However, domicile is not only residence, it is
residence coupled with intention to live indefinitely in the place.

Domicile means permanent home. Whoever place of birth is an inadequate

criteria by which to identify the personal law. The domicile of a person is in
that country in which he either has or is deemed by law to have his permanent
home. The concept of domicile has been explained by a distinguished American
Judge, Oliver Wendell Holmes J, who is of the view that the very meaning of
domicile is the technically pre-eminent headquarters that every person is
compelled to have in order that certain right and duties that have attached to it
by the law may be determined.1

3.2 General principles of Domicile

Under private international law, there are general rules in respect of domicile.
These principles are:

1. No person can be without a domicile

2. No person can at the same time have more than one domicile

3. An existing domicile is presumed to continue until it is proved that a new

domicile has been acquired.

3.2.1 No person can be without a domicile

This rule is based upon the practical necessity of connecting every person
with some legal system by which questions affecting his family relations and
family properties are to be determined. It is a settled principle that, no man
shall be without a domicile,2 and secure this result the law attributes to every
individual as soon as he is born, the domicile of his father, if the child is

1
Williams V. Osenton(1914).
2
Udny V Udny, (1869) L.R. 1SC .

Page 2 of 9
legitimate and the domicile of the mother if illegitimate this is called the
domicile of origin and it is involuntary. Domicile of origin prevails until a new
domicile has been acquired. However, the moment a person loses his acquired
domicile the domicile of origin springs back to him.

3.2.2 A person cannot have more than one domicile

Despite the fact that a person can have dual citizenship as it is permitted by
several countries a person cannot have more than one domicile. Main object of
this rule is the same as that of the first time to connect a person with a
definite legal system. Domicile signifies connection with a territorial subject to
a single legal system of law.

3.2.3 Presumption in favor of an existing domicile

An existing domicile is presumed to continue until it is proved that new

domicile has been acquired. Hence the burden of proving a change of domicile
lies invariable on those who allege that a change has occurred. If the evidence
adduced is conflicting or is not convincing, then court has to decide in favor of
existing domicile.

3.3 Domicile of Independent Persons:

Domicile of an Independent natural persons falls under the following two

categories:

1. Domicile of origin

2. Domicile of choice.

3.3.1 Domicile of Origin

Principally, every person is born with a Domicile of origin. It is a domicile received by

him at his birth. The domicile of origin of every person of legitimate birth is the
country to which at the time of his birth his father was domiciled. Hence, the domicile
of origin, though received at birth, need not be either the country in which the infant

Page 3 of 9
is born, or the country in which its parents are residing, or the country to which its
father belongs by race or allegiance or the country of the infant’s nationality.

However, the domicile of origin prevails until new domicile has been acquired. The
domicile of origin can be transmitted through several generations no member of which
has ever resided for any length of time in the country of the domicile of origin. The
character of the domicile of origin is more tenacious, and its hold stronger and less
easily shaken off. Domicile of origin has no necessary connection with the place
where the child is born, and it is theoretically possible for persons to enjoy a
domicile of origin for several generations even if none of the persons has
resided in such country for any appreciable length of time. The domicile of
origin continues to attach to each person till he obtains a different domicile
called domicile of choice, or till the law attaches a different domicile called
domicile to him , as when a women , on her marriage , by such marriage ,
acquired the domicile of her husband.

3.3.2 Domicile of choice

It is a cardinal principle that every individual person can acquire a domicile of

choice by combination of actual residence in particular place, and intention to
remain there permanently or for an indefinite period. The domicile of origin is
received by operation of law at birth; the domicile of choice is acquired by the
actual removal to another country accompanied by his place of residence or
settlement as a permanent home.

3.3.3 Domicile of dependents

The domicile of the dependent person depends on, and usually changes with,
the domicile of someone else. The object of determining a person’s domicile is
to connect that person with some legal system for certain legal purposes. In
general, dependents like married women, minors, and mentally deficient
persons are regarded as incapable of acquiring a domicile on their own, and
their domicile followed that of the person they were regarded as being
dependent on.
Page 4 of 9
 The Common law rule is to the effect that wives are dependents of their
husbands, minors the dependents of the parents through whom the minor
derives his domicile of origin. Dependent persons cannot independently change
their domicile of origin if on the other hand the husband or the appropriate
parent change his or her domicile, the domicile of the dependent usually
change with the domicile of such persons.

(a) Domicile of married women

The domicile of a married woman is the same as and changed with the
domicile of her husband. This rule is considered as absolute admitting of no
exceptions, whatever are the circumstances. Historically it was based upon
the ancient maxim of the common law that husband and wife was one and
the same person in the eye of the law. The above rule of unity of domicile of
husband and wife had been subject to vigorous criticism both academic
writers and judges. In case of Puttick v. A.G3 the petitioner , a German by
nationality with a German domicile of origin was arrested in German and
charged with a number of serious offence there, while on bail , she
absconded and using an illegally obtained passport from German national,
to England and married an English man in 1975. The question before the
court was whether she had acquired an English domicile. It was held that
rule of unity of domicile of husband and wife had been abolished by the
Domicile and Matrimonial proceedings Act, 1973 and that , therefore she
did not acquire a domicile in England. The court further held that she did
not and could not acquire a domicile of choice in England as she was
staying England to avoid trial in Germany and not to setup a permanent
home the illegal entry and residence according to the court, barred her from
acquiring an English Domicile of choice.

3
1979)3 All E.R 463.

Page 5 of 9
c) Domicile of mentally Deficient person

A person who is mentally retarded cannot acquire domicile of choice, he

retains the domicile he had before he began to be legally treated as insane. If
he was born mentally retarded or became retarded when child he is to be
treated as a dependent.

3.4 Residence

This connecting factor has been controversial in determining the choice of law
in private international law. It is most used in civil law countries such as
continental Europe as they prefer residence and nationality to domicile.
Meaning of residence is the place in which a person has his home.

It is the place where someone actually lives as opposed to domicile. It is act of

fact of being present in the certain area. It is possible to be a resident of more
than one country at the same time. Residence is unusual as a connecting
factor but it arises in some selected instance. There are variable terms
residence, ordinary residence and habitual residence.

It is probably ordinary residence that indicates the most permanent

attachment. Resident is uncertain whether a person’s presence must have
some degree of relative permanence: Re an Infant and in Re Taylor; ex parte
Natwest Australia Bank Ltd4 Some continual presence there is necessary
common sense approach to what residence is.

Rules governing residence must be lawful; based on public policy: courts

cannot allow person to acquire domicile in defiance of law. In the case of
Puttick v AG in this case porosities fugitive in German fled to England on
forged passport whereby the court held that even though she had requisite
intention to remain in England permanently she had no domicile because
residence was illegal, obtained by fraud.

4
(1992) 37 FCR 194

Page 6 of 9
3.4.1 Types of residence

There are two main types of residence namely;-

a) Ordinary Residence

In the case of Shah versus Barnet London: Lord Scarman defined

ordinary residence as a man’s abode in particular place or country,
which he adopts voluntarily and for settled purposes as part of regular
order of life for time being, whether long or short. Ordinary residence
question of fact may be ordinarily resident in more than one country.
Also in the case of IRC versus Lysaght: person lived in Ireland but spent
one week each month in England while in England, he lived in hotels.
The court was of the opinion that he was ordinarily a resident of England
and Ireland. Ordinary residence: Akbarali v Brent London Borough
Council5 per Scarman LJ “… a man’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 ….”

b) Habitual Residence

Habitual residence is a regular physical presence which must endure for

some time.6 In several cases, he courts have said that it is a question of
fact; this has turned out to the over-optimistic and, unavoidably,
perhaps, legal rules have developed. habitually describes residence which

5
15 [1983] 2 AC 309, 343, 4.
6
Cruse v Chittum[1974] 2 All ER 940
Page 7 of 9
 achieves degree of continuity. Habitual residence is question of fact,
determined by circumstance

3.5 Nationality as connecting factor

Nationality represents a person's political status, whereby 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. Nationality as a connecting factor was first adopted in France in
1803 with the promulgation of the Code Napoléon, in preference to domicile,
which had generally prevailed throughout Europe before then. It gained very
great support in Continental Europe because of the influence of Mancini in
Italy. At present, it is the basic connecting factor in the law of most continental
European countries, some South American states, and Japan.

Thus, nationality is the relationship between citizens of nation and nation

itself, customarily involving the allegiance of citizens and the protection by the
state. Nationality normally confers some protection of the person by the state,
and some obligations on the person towards the state. These rights and duties
are vary from country to country. It differs technically and legally from
citizenship, although in most modern countries all nationals are citizens of the
state and all citizens are nationals of the state.

Application of nationality as connecting factor. The application of the

connecting factor of nationality to the capacity that falls under personal status
seems to be objectively justified, above all, by the need to issue uniform
decisions regarding the subjective conduct of a person, and thus, to apply a
uniform rule of personal status to the same person. Consequently, application of
the connecting factor to personal status capacity is also justified by the
opportunity reasons that always suggested that States submit personal status
to subjective connecting factors, such as nationality.

Page 8 of 9
3.6 Summary

From a fore going discussion, students this lecture has imparted knowledge on
connecting factors and their application private international law. Thus at the
end of this lecture students are expected to demonstrate connecting factors
that are used to determine proper law in PIL.

Page 9 of 9