Domicile of origin v Domicile of choice seminar

Good morning, everyone, in today’s class we will be examining domicile of

origin and domicile of choice and how they differ from each other. Okay, so
before looking into the finer details, let us first examine some closely related
basic concepts. So, over the course of this semester, while attending Rini
ma’am’s classes, there was one word that I heard quite often, that the word
domicile. Now what exactly does domicile mean? So as stated in the case of
Whicker v Hume, domicile means the place where a person has his permanent
home. It is essentially a jural concept used to establish the connection between a
person and the law of the country with which he is most intimately connected.
Domicile is essentially intertwined with the principle of individual liberty. It is
separate from nationality and many scholars have often said that a person
maybe stateless but he cannot be without domicile.
Okay, so now that we have gathered some understanding on what domicile is,
let us move on to the different types of domicile. In the case of the Union of
India v Dudh Nath Prasad, it was stated that domicile carries many colours, it
may be domicile of origin, domicile of choice or domicile of dependance. Of
course, in today’s class, we will be focusing primarily on domicile of origin and
domicile of choice.
So let us start out by examining domicile of origin. It is widely accepted that no
person can be without a domicile. What this essentially means is that the law
confers a domicile on every person at birth, this is the domicile of origin. Now,
DOO is based either on paternity or maternity. What this means is that a
legitimate child is given the domicile of his father at the time of birth while a
child born after the father’s death is given the domicile of his mother this is
similarly the case with illegitimate children as well. So, what we can essentially
gather from all of this is that in most cases the domicile of origin is completely
dependent on the domicile of the father or the mother. There is however one
exception to this in the case of ‘foundlings. Wherein the domicile will be the
country where the child is found.
Next, we have domicile of choice, DOC is basically the domicile that a person
voluntarily acquires as a result of his actions. For the acquisition of domicile of
choice, the following two conditions must be satisfied.
1. Residence in country of domicile of choice
2. Intention to live in country of domicile of choice permanently
Also, before the coming into force of the domicile and matrimonial proceedings
act 1973, in England a minor, lunatic and a married woman had no capacity to
acquire a domicile of choice. Meanwhile, in India a married woman can acquire
a domicile only under certain circumstances.
Okay so now that we have got a basic idea of the two different types of
domicile, let us look at how they differ and stand in contrast to one another.
1. So, as I stated earlier, DOO comes into existence by operation of law, that
is every person gets it at birth. On the other hand, domicile of choice is
acquired through the free will of a person in question. This means, for its
acquisition, Animo et facto or intention is necessary.
2. Also, there is a very strong presumption in favour of continuance of
domicile of origin in comparison to domicile of choice. An extreme
example of this was the case of Ramsay v Liverpool Royal Infirmary,
which we will be discussing in later segments.
3. Also, domicile of origin cannot be abandoned easily, since it is a creature
of law and not of free will. Essentially, until a domicile of choice is
acquired, the domicile of origin continues. The case of Bell v Kennedy is
a good example of this.
4. Another outstanding feature of domicile of origin is that it is never
actually lost. When a domicile of choice is acquired, it is simply in
abeyance. As soon as the domicile of choice is abandoned or lost, it
immediately revives, even if all contacts with the country of domicile of
origin is lost. On the other hand, there is no question of revival of
domicile of choice, once it is abandoned or lost, Although it may be
acquired once again by Animo et facto.
Okay, now that we have gained an understanding on the difference between
domicile of origin and domicile of choice. Let us examine some importance
syllabus cases in relation to the topic.
Firstly, we have the case of Winans v AG, here one Winans was born in the
USA, he later left the US to live in several other countries till he died in
England. In 1859, he established a winter residence in Brighton, England.
For a period, he alternated residences between Germany and Brighton before
living exclusively in England, till his death. When questions over his
domicile arose, the court concluded that he died domiciled in The US as he
devoted his whole life to serving the USA.
Next, we have the case of Udny v Udny, where the person’s domicile of
origin was Scotland. He lived in London for 32 years and then France for 9
years, without acquiring a fresh domicile of choice. The question here was
what was the persons domicile during his tenure in France, having left
London with no intention of returning. Here the domicile of choice is lost
and by virtue of the doctrine of revival, the domicile of origin was revived
and during his time in France, his domiciled was that of Scotland.
Next, we have the case of Bell v Kennedy, where a person’s domicile of
origin was Jamaica. He later moved to Scotland; however, he had not
conclusively made up his mind to settle there. During his time in Scotland,
his wife passed away. Following this he had no intention to remain in
Scotland, but before he could return to Jamaica he passed away. Here the
court held that his domicile of origin was not lost and hence he continued to
possess Jamaican domicile.
Another case of great importance was that of Ramsay v Liverpool Royal
Infirmary. In this case a person died leaving behind a will which was
formally valid under Scottish law, but not so under English law. The testator
was born in Scotland and had a Scottish domicile of origin. For a period of
37 years till his death, he lived in England, without ever going to Scotland.
The only proof of his attachment to Scotland was that he often said he was a
proud Glasgow man. He however did not even return to Scotland for his
mother’s funeral and he even arranged for his own funeral to be held in
Liverpool. All of this proved that he had chosen Liverpool as his home and
hence he was domiciled there.
Now, having covered all the key segments of the topic, I would like to
conclude. Thank you very much.