REPORTS OF COMMITTEES

LAWCOMMISSION WORKING PAPERNo. 88*: THELAWOF DOMICILE

THE present rules on domicile are excessively complicated,
unjustifiably artificial and lead to uncertainty of outcome in the
individual case. Reform is obviously necessary. At the same time it
has to be remembered that these rules have great practical
significance. The validity of a will, the legitimacy of a child, the
liability to pay English taxes, the ability of an English court to take
divorce jurisdiction, may all hinge upon the court’s finding as to
where a person is domiciled. Changes in the rules on domicile
could mean, for example, that foreign business men living in
England could suddenly become subject to English taxes. Previous
attempts to remedy defects in the rules ended in failure’ because
the proposals were thought to be too radical. The Law Commission,
after confirming the utility of domicile as a connecting factor,’ has
attempted to cure the defects in the present law, but without
raising the fears of international businessmen that their domicile
will be altered. The success or failure of this Working Paper3 is
going to be judged partly in terms of whether it gets rid of the
flaws in the present law and partly in terms of whether it goes far
enough in creating rules on domicile appropriate for the end of the
twentieth century.

Abolition of the Domicile of Origin

Instead of there being domiciles of origin, dependence and choice,
with different rules for each, it has been proposed4 that there
should simply be rules for ascertaining the domicile of children and
adults. At present the domicile of origin is separate from the
domicile of dependence. The Law Commission decided upon the
most appropriate rules for ascertaining domicile during childhood,
realised that these rules could also be used for fixing the domicile
at birth, and concluded that two separate sets of rules were no
longer nece~sary.~
Whilst a great improvement in the law, this would not, on its
own, get rid of the need for a special category of domicile, whether
you call it the domicile of origin or the domicile at birth. The
domicile of origin has a special tenacity and a power to revive
whenever a person has abandoned one domicile without acquiring
~ ~~~~

And The Scottish Law Commission Consultative Memorandum No. 63.

’ See paras. 1.6-1.9 and The Private International Law Committee’s First Report
(1954) Cmd. 9068.
* See Part 11.
See Part IX for a summary of the proposals.
‘ See para. 4.22.
’ Paras. 4.1-4.22. This follows the New Zealand position, see the Domicile Act 1976.
225
226 THE MODERN LAW REVIEW [Vol. 49
another. The L,aw Commission has proposed depriving the domicile
at birth of its special status. It recommends that no higher or
different quality of intention should be required when the change
of domicile is from one received at birth than from any other
domicile6 and that the doctrine of revival be replaced by a rule that
an established domicile continues until a new domicile is acquired.'
Underlying these proposals is a concern to stop artificiality and
uncertainty in the law of domicile.* There is also a desire to reduce
the complexity of the rules. In one bold stroke a complete set of
rules dealing with ascertaining the domicile of origin disappears, as
does the gloss on the general rules on acquisition which gives the
domicile of origin its special status. The rules on revival would be
deleted, and replaced by a continuance rule which is much simpler
to understand and apply.
This still leaves major questions to be answered in relation to
children and adult^.^

The Domicile of Children

The Law Commission had to decide whether children should
continue to be (dependent on their parents for their domicile during
childhood, or whether children should have an independent
domicile, taken by reference to, e.g. their habitual residence or the
country of their closest connection" The Working Paper points out
that dependency may look unrealistic in cases where the link with
the parent has been weakened. On the other hand, an independent
domicile can mean in some cases that a child has a domicile
different from that of his parents and in a country where the
parents would not wish themselves or their child to be domiciled.

The proposals
The Working Paper has proposed a middle route whereby a child
should be dependent on his parents where the link with the parents
is continued, but, for the first time, the child should have an
independent domicile when the link with the parents is weakened.
Three rules are proposed. The first is that if the child has a
home with both parents his domicile should be the same as and
change with the domicile of his parents." There is no difficulty
with this proposal so long as the parents have the same domicile.
Where this is not the case a decision has to be made as to which
parent the child should take his domicile from. After considering
Para. 5.17.
' Paras. 5.165.22.
See generally paras. 5.9, 5.165.22.
There are also problems with an incapax (see Part VI), Federal States (Part VII),
and with transitional provisions (Part VIII).
lo Paras. 4 . 1 4 . 4 .
l1 Para. 4.5.
MAR.19861 REPORTS OF COMMI'ITEES 227

various alternatives the Working Paper recommended an arbitrary

rule that the child should take his domicile from his mother in this
situation.'*
The second rule follows suit by providing that where the child
has his home with only one parent his domicile should be the same
as and change with the domicile of that parent.13
The third rule provides that in any other case the child should be
domiciled in the country with which he is for the time being most
clearly ~ 0 n n e c t e d . lIt~ covers children who do not have a home
with both or either parent, e.g. orphans, abandoned children and
children living apart from parents under some private or official
arrangement. It is not clear if it covers a child who runs away from
home. If it does, this raises the possibility of a child under 16
choosing his own domicile by establishing a close connection with a
country.

The rationale of the proposals

The Law Commission admitted that the number of children whose
domiciles would be altered under these proposals is likely to be
small. Nonetheless, they justified changing the present law on the
grounds that it should not distinguish between children on the basis
of legitimacy and should be ~imp1ified.l~ The critieria under the
proposed rules are sufficiently all embracing to cover situations
which require special provision under the present law, e.g. where
the child is a foundling, the father dies during childhood, or the
parents are living apart.16 The criteria adopted even cover the
situation where a child marries under the age of 16 and no
provision for this was needed under the three r ~ 1 e s .The
l ~ proposals
are also such that they are suitable not only for the domicile during
childhood but also at birth, thus allowing abolition of the domicile
of origin.'* The end result is a dramatic reduction in the number of
rules on domicile.
What is put in the place of the old law is simple to state and to
apply. Any suggestions for qualifications to the rules were ruthlessly
put aside. There was said to be no need for a reservation where an
illegitimate child has a home with the father,19 nor for protective
provisions allowing the general rules to be overridden by a parent ,20
Paras. 4.6-4.9.
I3 Para. 4.10. This follows The Domicile and Matrimonial Proceedings Act 1973, s.4.
Would the proposal cover a child kidnapped by one parent and taken abroad to a new
"home"?
I4 Paras. 4 . 1 1 4 1 7 . Various alternatives were considered and rejected.
Is Para. 4.18. On ending discrimination see also Law. Corn. No. 118 (1982) on
Ille 'timacy, particularly Part XIII.
P Para. 4.18.
Paras. 4.31 and 4.32.
Para. 4.20.
I9 Para. 4.10.
Dealing with the problem of election raised in Re Beaumont [1983] 3 Ch. 490. See
paras. 4.23-4.29.
228 THE MODERN LAW REVIEW [Vol. 49
or by the courts,21 nor an exception allowing an independent
domicile for all mothers, regardless of age.”

Does this get rid of artificiality?

The role of domicile is to act as a connecting factor, providing a
link between a person and a country, which inter alia justifies
applying that country’s law to his personal life. The proposals seem
to forget this and rely too heavily on the traditional idea of
dependence on a parent. They make allowance for the situation
where there is no strong link with the parent, but not for the
situation where a child may have a link with his parents but no real
connection with his domicile. The Working Paper contains an
example of this.23 Scots domiciled parents go to work in Iran, live
there for many years and have a child. The Law Commission
thought that the child should have a Scots domicile dependent on
his parents and to give him an independent domicile would produce
undesirable results. In terms of the child’s connections with a
country, however, Iran looks a more appropriate domicile than
Scotland, a country where the child may never have even lived.
The father may even be an Iranian domiciliary, but the child would
still be dependent on its Scots mother. The only thing that is
undesirable about an Iranian domicile is that Iran is a country
which is culturally and politically alien to such a child. Moreover,
automatically giving the child a domicile dependent on his parents
does not get rid of this particular problem. All you have to do is
switch the facts round to see this. If an Iranian couple go to live
and work in Scotland, have a child and bring him up there, giving
the child a domicile dependent on his parents (i.e. Iranian) would
produce the same undesirable results as in the Law Commission’s
example. The problem of having a child domiciled in a country
such as Iran cannot be effectively dealt with by the rules on
domicile, but it can be dealt with by using public policy to refuse
to apply Iranian law to the private life of the child. This would
leave the rules of domicile free to play their role as a connecting
factor. To fulfil this role a child should have a domicile which is
appropriate in terms of connections and this may not happen if the
child’s domicile is dependent on that of the parent.
The other objection to the doctrine of dependency is that it is
unworkable where the parents have different domiciles. Arguments
over whether the father or the mother should determine the child’s
domicile merely show that neither spouse is the obvious candidate.
Inevitably, an arbitrary choice is being made.24
21 See paras. 4.23 and 4.26, dealing with The Private International Law Committee’s
recommendation, First Report (1954) Cmd. 9068, Appendix A , Article 4(3).
22 See para. 4.33 dealing with the problem of double dependency. See also Palmer,
(1974) 4 Fam. Law. 35, 38.
21) See para. 4.3.
Tie-breaking rules were considered, but rejected as an alternative in paras. 4.7-4.9.
MAR.19861 REPORTS OF COMMITTEES 229
An alternative suggestion
Children should have a domicile independent of their parents. This
would avoid the problems that arise where parents have different
domiciles. To make sure that a child is domiciled in a country with
which he has a real connection it should be provided that he is
domiciled in the country where he has his home. This does not
mean that parents would have no say in their child’s domicile. The
parents will fix where a child has his home and will therefore
indirectly determine his domicile.
Using the home as the criterion avoids discriminating between
legitimate and illegitimate children and the complexity of the
existing law. The Law Commission’s proposals require the home of
a child to be a s ~ e r t a i n e din~ ~order to see whether he has a home
with a parent, so that using the home as the basis of the child’s
domicile would create no extra uncertainty. Reference to the home
would actually simplify the law even more because only two brief
rules would be needed. One rule, under which the child is
domiciled in the country where he has his home, would cover the
situation where the child has a home with both parents (regardless
of their domiciles) or with one parent. It would also cover the
situation where a child has a home with someone else under a
private arrangement, e.g. he lives with his grandmother. A second
rule would be that where a child has no home or more than one
home he is domiciled in the country with which he is most closely
connected.

The Domicile of Adults

The question here is when should a new domicile be acquired by
an adult? The Law Commission criticised the current rules on
acquisition for leading to artificiality, because of the tenacity of an
established domicile, and uncertainty in determining where a
person is domiciled.26 They saw the tenacity of an established
domicile as stemming partly from unduly exacting legal require-
ments, the standard of proof required for a change of domicile is
unusually high and an intention to reside permanently is particularly
hard to show, and partly from the factual difficulty in ever proving
a subjective state of mind. The latter in its turn leads to uncertainty
of outcome in domicile cases.

The proposals
The obvious solution where defects are caused by unduly onerous
legal requirements is to alter the rules. The Law Commission has
25 No substantial definitional problems are anticipated, see para. 4.17. Note also that
under para. 4.6. it is said that a child should take his domicile from his mother where the
parents have separate domiciles because he is likely to have his home with her.
26 Paras. 5.1-5.8.
230 THE MODERN LAW REVIEW [Vol. 49
proposed that the standard of proof in acquisition cases should be
the normal civil standard.” An intention to make a home
indefinitely in a country should suffice to acquire a new domicile.=
An example was given: if a man makes his home in a country and
has no present intention of moving elsewhere, he should be
regarded as being domiciled in the country of his residence. The
problem of the inherent difficulty in ascertaining a person’s intent
is tackled by having a presumption that a person intends to make
his home indefinitely in a country in which he has been habitually
resident for a continuous period of seven years since reaching the
age of 16.29

Do the proposals cure the defects in the law?

U n ~ e r t a i n t y It
~ ~is: questionable whether these proposals will get
rid of the uncertainty in this area. First, the basic problem of
ascertaining a person’s intent remains. The courts have always
been suspicious of declarations as to intent coming from the person
whose domicile is in question. Instead, they have preferred to use
the well known technique of inferring a person’s state of mind
from his conduct. Unfortunately, conduct may be inconsistent or so
limited in nature that it may be impossible to draw any inference
from it. Does a presumption as to intention deal with this problem?
It will, of course, not apply where a person has been habitually
resident in a country less than seven years. The presumption can
also be rebutted; in any contentious matter the possibility of doing
so is likely to be raised, and with it the question of the person’s
intent. Does the task of proving intent become easier because the
requisite intention is that of making a home in a country
indefinitely? Admittedly, this is a less stringent test than that of an
intention to permanently reside. However, it does not help in
situations where it is particularly difficult to prove intent. The Law
Commission31 envisages the acquisition of a domicile of choice in a
case like Ramsay v. Liverpool Royal Infirmary.32 But can it really
be said that a person who never thought about his home, and has
never done anything from which inferences can be drawn, has an
intention to make a home somewhere, albeit only indefinitely?
Surely, any intention still requires a positive state of mind.
Secondly, both the new test for acquisition and the presumption
are riddled with uncertainty.
(i) the test for acquisition: The Law Commission saw the
intention to make a home in a country indefinitely as a more
27 Para. 5.9 and 5.17.
Para. 5.10.
29 Para. 5.11. For an example of where the presumption would be rebutted, see para.
5.15.
On the undesirability of this see para. 5.8.
3’ Para. 5.10.
32 [1930] A.C. 588.
MAR.19861 REPORTS OF COMMITTEES 231
liberal test than the intention to reside permanently and cited In
the Estate of Fuld ( N o 3) as authority for this approach.33But this
case does not help in interpreting the new formula. It is typical of
many where reference has been made to an intention to reside
permanently, to an intention to reside for an unlimited time and to
an intention to reside indefinitely, yet no attempt has been made to
distinguish between these different tests.34This does not cause any
problem under the present law since the emphasis has been on the
facts of the case not on the legal test. However, under these
proposals, which would be enshrined in a statute, the test for
acquisition is likely to be closely examined.
What is required for an intent to make a home in a country?
More perplexing, the intention must be to make a home in a
country indefinitely. This is concerned with evidence against
acquisition. When is such evidence fatal? The Oxford English
Dictionary defines indefinite as “undefined,” “unlimited,” “vague,”
“of indetermined extent.’’ What of the person who is definitely
going to leave in the future, but has not fixed a time or an event
upon which this will happen? The extent of the stay is not
determined. On the other hand, there is nothing vague about the
intention to leave, it is a definite intention. Also what will happen
where a person has definite plans to leave but departure is
contingent on some external event, e.g. his wife predeceasing him?
The Working Paper does not say whether you can turn to the
existing law on unlikely c~ntingencies.~~
(ii) the presumption: It is not always going to be easy to
ascertain a person’s habitual residence. The Law Commission
preferred to base the presumption on this rather than on the
home, because they thought there might be problems in ascertaining
the home, particularly with regard to intent, and habitual
residence would build upon well established foundations in private
international law.36But habitual residence is a term of art and one
which does not yet have a clear meaning. The presumption is
designed to avoid having to ascertain a person’s intent but often,
when ascertaining habitual residence, you cannot escape from this,
e.g. where there is a period of absence from a country during the
alleged seven years habitual residence.37 There is also uncertainty
over when the presumption can be rebutted. This will depend on
33 [1968] P.675, and see paras. 5.6 and 5.10. Both New Zealand (Domicile Act 1976
s.9) and Australia (Domicile Act 1982 s.10) use the term “indefinitely” in respect of the
re uisite intention.
9( Compare the judgment of Scarman J. at pp.682, 684 and 685. See also Udny v.
Udny (1869) L.R.1 Sc. and Div. 441, 458; Henderson v. Henderson [1967] P.77, 80.
35 See In the Estate of Fuld (No. 3) [1968] P.675; I.R.C. v. Bullock [1976] 3 All E.R.
353. Re Furse [1980] 3 All E.R. 838 deals with where it is uncertain what the contingency
itself is.
Paras. 5.12-5.13.
3’ See old cases on “ordinary resident,” Sfransky v. Stransky (19541 P.428, and
Hopkins v. Hopkins [1951] P.116. See generally on habitual residence paras. 2.2-2.5 and
Law Com. No. 48 on Jurisdiction in Matrimonial Causes, para. 4.2.
232 THE MODERN LAW REVIEW [Vol. 49
how an intention to make a home in a country indefinitely is
interpreted, e.g. if this is narrowly construed it will be relatively
easy to show that a person does not so intend and thereby rebut
the presumption.
Tenacity of an established domicile: The Law Commission intend
that their proposals should effect a change of domicile in the most
extreme example of tenacity, the Ramsay case. But since the
person in question had no thoughts one way or the other as to his
home, it is arguable that he did not intend to make his home
anywhere. The presumption would not help either; although the
person lived in England for seven years he would probably not be
habitually resident because as a man without thoughts on the
matter he did not have the necessary intent to reside.38 The Winans
case39 is also commonly regarded as a classic example of the
tenacity of the existing domicile. There, the presumption would
operate because of the long residence in England, coupled with the
intention to reside, but it might be rebutted by the evidence that
the eccentric millionaire intended to go back to the United States
at some future time.40

Should the proposals go further?

The intention of the Law Commission is to provide the minimum
necessary to get rid of the worst excesses of the present law rather
than a radical reform designed to achieve a free and easy change
of domicile. The requirement of seven years habitual residence
under the presumption will effectively exclude most businessmen
and others on tours of duty abroad, and means that there are not
going to be large numbers of people whose domiciles will be
altered under these proposals. Underlying this is a desire to protect
English expatriates who go to work abroad from having to rebut
the presumptiain. It is said that they would expect their private life
to still be governed by the law of their homeland, and there may
also be a reluctance to subject them to foreign laws, particularly of
countries which are culturally and politically alien.41
This view ignores the political and economic changes which have
taken place since the days of the British Empire.42 Now that the
United Kingdom is a Member State of the EEC the typical
expatriate is rnuch more likely to be working in Brussels than
Tehran. The whole notion of the homeland has a greatly reduced
significance if you consider the United Kingdom as part of a larger
European unit. Alongside this has come the growth of multinationals
38 See Cruse v. Chiffurn[I9741 2 All E.R. 940, 942-943.
39 ri9041 A.C. 287.
it has been argued ante that a person could be said to intend to make a home
indefinitely in a country in such a case.
4' See paras. 5.9 and 5.14. There is the telling example in para. 4.3, referred to ante.
'* On support in the Working Paper for the continued relevance of a homeland see
paras. 2.5 and 5.18.
MAR. 19861 REPORTS OF COMMI’ITEES 233

which, when it comes to moving their executives, barely recognise

traditional state boundaries. The rules on domicile should reflect
these changes and should go some way towards the free and easy
change of domicile found in federal systems.43There are however
limits as to how far you can go along this road. The easier change
of domicile becomes the more opposition is likely to arise from
foreign businessmen working in England, who are worried about
being subject to English taxes. The ill fated recommendations of
the Private International Law Committee show how effective a
lobby interested parties can mount against radical changes in the
law of domicile.*

Achieving the right objectives

Under the present law a court may well find that a person is
domiciled in a particular country in order to achieve the right
result, e.g. validation of a will.45 One way of arriving at the right
result is to find ambiguities in the meaning of the legal test which
states the requisite intent for acquisition. If certainty in the law is a
prime requisite the drafting of the proposals has to be made
tighter.
More certainty can be injected into the concept of an intention
to make a home in a country indefinitely by incorporating the
present law on unlikely contingencies into the proposals. The
problem of deciding whether a person has an intention to make a
home in a country could be lessened by providing that the
presumption can only be rebutted in the relatively rare case where
the person has decided to leave the country where he is residing at
some future time and has settled when this will be. It would not
suffice to show merely that the person is indecisive in his intentions,
or hasn’t even thought about whether he wishes to remain or stay,
or where evidence as to intention is unclear. This would also
achieve more certainty as to when the presumption can be rebutted.
When it comes to raising the presumpton, it would be better to
base this on having a home in a country. Habitual residence
undoubtedly involves unsolved definitional problems. Establishing
a home could be kept as a question of fact, in answering which
intent might be relevant but not vital, and is likely to be easier to
ascertain.& This proposal is not as radical as that of the Private
International Committee in their First Report since a person would
43 For the U . S . A . see Restatement, 2nd, Conflict of Laws, s.18 and Comment. For
Canada see Gunn v. Gunn (1956) 2 D.L.R. (2d) 351. For English awareness of changing
conditions, see Brown v. Brown (1982) 3 F.L.R. 212.
See paras. 1.6-1.7 and 5.11. The Private International Law Committee’s First
Report (1954) Cmd. 9068, para. 15 and Appendix A , Article 2 contained a presumption
based solely on showing a home in a country.
45 See generally, Fawcett, “Result Section in Domicile Cases” (1985) 5 Oxford Journal
of Legal Studies, 318.
46 Compare para. 5.12.
234 THE MODERN LAW REVIEW [Vol. 49
have to have a home in a country for a number of years before the
presumption would be raised.
The strict test for rebutting the presumption which is advocated
above would get rid of the worst examples of tenacity of an
established domicile such as Ramsuy and Winans. But, to go
further than this and make it significantly easier to change a
domicile it must be made easier to raise the presumption in the
first place. Using the concept of the home would help, since it is
likely to be easier to establish a home in another country than an
habitual residence, as would reducing the requisite period from
seven years to four. This would strike the right balance between,
on the one hand, catering for the need to make domicile a realistic
connection in terms of the context in which the rules on acquisition
must operate and, on the other hand, meeting the objections of
the English expatriate who is working abroad and the fears of the
foreign businessman working in England.

Conclusion
The proposals in the Working Paper undoubtedly achieve their aim
of simplifying the rules on domicile. The proposal to abolish the
domicile of origin is very much concerned with lessening the
complexity of the present rules and here the Working Paper is at
its most impressive. When it comes to proposing new rules for
children and adults other objectives come into play and the
proposals are less convincing. With children the proposals are
simple but retention in most cases of the traditional idea that a
child is dependent on his parents means that artificiality will
remain. With adults the proposals are flawed by unanswered
definitional problems, which could lead to uncertainty of outcome
and no lessening of artificiality. At the same time, the proposals on
acquisition should go further and allow an easier change of domicile
to reflect the political and economic context in which the rules on
acquisition must operate. With both children and adults the rules
would be improved by making increased use of the concept of the
home.
J. J. FAWCETFt
t Ph.D., Lecturer in Law, University of Bristol.