Domicile, Nationality and

Residence
 Introduction
• This is universal that- the question that affect the personal
status of the human being should be govern by one and the
same law, irrespective of where he may happened to be or
of where the facts giving rise to the question may have
occurred.
• There is disagreement on the two matter-
• What is the scope of this “personal Law”
• As it is called, and should its criterion be domicile or
nationality.
• The Rule of private international law of the said nation
decide the same.
 Domicile Concepts
• Domicile is a legal concept. It is a connecting factor which links
a person with a particular legal system.
• domicile is not only a connecting factor, but also a jurisdictional
factor.
• For instance, in the areas of divorce, adoption, guardianship
etc., domicile determines both the jurisdiction as well as the
choice of law. Consequently, the choice of law questions in
these spheres have been treated as primarily jurisdictional
questions. That is to say that, once the court determines that it
has the jurisdiction to hear the case, it automatically applied its
own laws. (J.H.C. Morris, The Conflict of Laws (1980) (p. 138)
 Domicile Definition and meaning
• The concept of domicile is not uniform through
our the word.
• To civil lawyer this means ‘Habitual Residence’ to
common law its is equivalent to the person’s
permanent home.
– By domicile we mean home, the permanent home,’
observed Lord Cranworth in Whicker v Hume. ‘And if
you do not understand your permanent home, I’m
afraid that no illustration drawn from foreign writers or
foreign languages will very much help you do it.’
 Domicile class
• There are three forms of domicile:
• (a) domicile of origin, which is the domicile
attributed at the time of birth;
• (b) domicile of choice, which is the domicile a
competent person may acquire during his
lifetime; and
• (c) a domicile of dependency, which means that
the domicile of the dependent person is
dependent on the conduct of another
 General rules related to domicile
• 1) no person can be without a domicile;
– Domicile of origin- to every person at her/his birth-
– ex- legitimate child- the domicile of father –
Illegitimate child domicile of mother-
– in case of no such relation- the foundling place
where the child is found.
– It prevail until a new domicile is acquired.
– In case of loss of domicile – the original domicile get
revived.
• udny v udny, 1869
• The father had been born in Scotland but had left Scotland and taken a lease
of a house in London. He had a castle in Scotland but that was not habitable.
He visited Scotland frequently but had no residence there. In 1844, he sold
the lease and his personal possessions and left London for France to avoid his
creditors. But he did not intend to reside permanently in France.
• His first wife died in 1846, and he formed a liaison with the respondent’s
mother who, in 1853, gave birth to the respondent in London. He married
her and went back to Scotland thinking that he would thereby legitimise the
respondent, avoid his creditors and bar the entail on his estates. He intended
to stay in Scotland because he thought he would be safe from his creditors.
• The father had lost his domicile of choice in England and that his domicile of
origin had revived.
• Legitimacy of the child
• 2) a person cannot at the same time have
more than one domicile (at least, no more
than one for the same purpose);-
– as the object of the law is to ensure that no
person will be with out an domicile for legal
certainty.
– What kind of certainty- to establish a connation
with a defined legal system. (doctrine of unity of
domicile)
• 3) an existing domicile is presumed to
continue until it is proved that a new domicile
has been acquired-
• Standard of proof to rebut the presumption
that adopted in the civil actions- that is the
“balance of probability”not “beyond
reasonable doubts”.
• 4) It does not connotes an identical rules
always, it symbolizes a territoriality. (Diverse
laws in different countries)
• 5) the question of where a person is domiciled
is determined solely in accordance with Forum
law ;
 THE DOMICILE OF CHOICE

General principles
• There are, thus, two requirements – the fact of residence(home)
(factum) and the intention to reside (animus).(habitual,
permanent)
• Long residence in a country will raise the inference that a person
intended to remain there and this inference may be so strong as
to be almost impossible to rebut.
• The abandonment of a domicile requires the same two elements,
the physical removal from the country and the intention not to
return to it – leaving animus non revertendi. There must
be a coincidence on non-residence and intention not to reside
The Acquisition of a domicile of choice
• There are two requisites
• Residence and intention
• It must be proved that the person in question has
established her/his residence in a certain country with the
intension of remaining there permanently. (such an
intention, however unequivocal it may be , does not per se
suffice)
• These two elements of residence and intention must
concur, but the unity of time is not essential. The intention
may either pecede or succeed the establishment of the
rsidence.
 THE DOMICILE OF CHOICE

• long residence by itself will not be sufficient to acquire a domicile of

choice. Long residence may go some way to demonstrating the factum
but it will still be necessary to show the animus.
• In examining the questions of animus, writers has argued that the case
law reveals four common evidentiary situations:
– (a) an intention to reside for a definite period, for example, a year and then leave;
– (b) an intention to reside in a territory until a definite purpose is achieved, for
example, to leave when a particular project is completed;
– (c) an intention to reside in a country for an indefinite period unless and until a
particular event happens, for example, relative dies; and
– (d) an intention to reside forever regardless of domestic or external events.
• It is quite clear that the first two forms are insufficient to acquire a
domicile of choice.
 Residence
• Residence and intention are separate but interrelated concepts.
• Residence in a country for the purpose of the law of domicile in
physical presence in that country as an inhabitant of it
• IRC v Duchess of Portland- a taxpayer who spent ten of twelve
weeks each year in Quebec for the purpose of maintaining her
link with province with a view ultimately to return to live. She
was held not to be a resident of Quebec during her presence as
since she was not there as an inhabitant.
• Residence and intention is interrelated- Residence is a fact –
intention is inferred
 Qualitative and Quantitative test for
residence
• There is shift in judicial trained related to the length of
time- older case it used to attract a supportive
presumption- although the time is an material
consideration but given less waight- whenever the court
consider the time factor that is the length of the residence
was in view that it is not the sole criteria of the domicile.
• Long residence does not constitute nor does brief
residence negative domicile.
• Everything depeneds on the attendant circumstances, for
they alone disclose the nature of the person’s presence in a
country
• Joppy v wood, 1865- John smith – from scotland-
lived for 20 years India- denained domicile as his
unltimate intetntion to retunred to scotalnd
• IRC v Bullock,
• A person from Nova Scotia, lived in England for
forty years, also served in Royal Air Force, but
denied the domicile in England. He intended to
leave for Nova Scotia if his wife predecease him.
Brevity of Residence- is not an obstacle
• Brevity of Residence – is not an obstacle to acquire an
domicile, in a person clearly intended to live in another
country permanently.
• White v Tennant,
• A man abandoned his home is State X and took his family
to a house in state Y, about half a mile from X, intending
to live there permanently. Having deposited his
belongings there, he and his family returned to X, in
order to spend the night with the relative. He felt ill and
died there. It was held that his domicile at death was in Y.
 The Requite Intention
• The nature of the intention – an intention to reside permanent.(wish is
opposite of temporary) – lasting or designed to last indefinitely without change
• In Udny v Udny, Lord Westbury – described the intention as being one to
reside “for an unlimited time”- or in modern view judges consider it as
“indefinitely”
• The conditional intention will not suffice-
• Cramer v Cramer, 1987
• a woman with a French domicile of origin who came to England intending to
remain here and marry an English man , who was already marries. Did not
acquired an English domicile of choice. Her intention to remain was conditional
on both herself and her proposed husband obtaining divorce and on their
relationship continuing. It would, no doubt, have been different if she had
intended to remain here come what may, but this was not her intention.
 Contingencies – and intention
• The two question, where the distinction must
be drawn- the question of whether a
contingency itself is clear and secondly
whether a contingency which is clear will
happen?
• The contingency is more than a vague
possibility-a clear foreseen and reasonable
anticipated contingency.
• Re Furse- The man- who has a Rhode Island Domicile of origin,
would leave England where he had lived for nearly half a
century, if he would no longer able to live an active physical life.-
• Held that he has acquired the domicile of choice that is England
• IRC v Bullock
• If a man intended to returned to held of his birth upon a clearly
foreseen and reasonably anticipated contingency , eg end of his
job- then the intention required by law is lacking in case of
domicile- but if he has in mind only a vague posibility, such a
making a fortune – winning a football pool- such a state of mind
is consistent.
 Evidence of Intention
• Naturalisation
• Retention of citizenship
• Purchase of a house
• A burial ground
• The expression of political right
 Voluntary Residency
• It is a commonplace that to constitute domicile a
residence must be voluntary- a matter of free
choice, not constraint. In several case, the
circumstances may raise a doubt whether such
freedom exist
• Prisoners- posses the domicile before confinement-
only exception is transportation or exiled for life.
• Refugees- possess the domicile before leave the
country
• Fugitives from Justice and Fugitive debtor-
• When someone leaves his domicile in order to
escape the consequences of crime or non
payment of debt.
• The natural inference in these case is he has left
forever,- pramanet
• no doubt his departure has indeed forced upon
him, yet this does not necessarily mean that he
intended it to be temporay.
• Moynihan v Moynihan- it was held that the porosuities who
had left U.K to avoid arrest on the serious fraud charges, had
at his death acquired a domicile of choice in Philippines,
where he had lived from 20 years. Built up a thriving
business, acquired properties, married and had children.
• Loustalan v Loustalan – the disagreement between Lindley
LJ and Rigby LJ- in the words of Lindley when the offence
cease to be punishable after certain number of years,
resident in another country unless fortified by other factor
does not affect the change of domicile. But as per Rigby LJ,
it is irrational that, only possible in trifling case
• Re Martin- when the fugitive from justice, is
forced to returned for facing the justice
delivery system- with the operation of law.
• If they have not set up a home and ready to
move when detection or arrest is imminent-
then no change of domicile.
DOMICILE OF ORIGIN AND
DOMICILE OF CHOICE CONTRASTED
 Some points..
• in Re Fuld’s Estate (No 3) is worthy of consideration.
• (a) the domicile of origin adheres – unless displaced by satisfactory
evidence of the acquisition and continuance of the domicile of choice;
• (b) domicile of choice is acquired only if it be affirmatively shown that
the propositus is resident within a territory, subject to a distinctive
legal system, with the intention formed independently of external
pressures of residing there indefinitely; and
• (c) it follows that, though a man has left the territory of his domicile of
origin with the intention of never returning, though he be resident in
a new territory, yet if his mind be not made up or evidence be lacking
or unsatisfactory as to what is his state of mind, his domicile of origin
adheres.
 Tenacity of the domicile of origin
• There is a strongest possible presumption in
favour of the continuance of a domicile of
origin.
• Lord Macnaghten in the case Winans v A-G
• As contrasted with the domicile of choice
states that “its character is more enduring, its
hold stronger and less easily shaken off”
 The two types of intention

• Negative intention- the intention to no more

live in the country of existing domicile
• Positive intention- the intention to live in the
country of intended domicile of choice for
ever.
 Abandonment of an Existing Domicile
• Two dimension, in case of domicile of origin and in case of
domicile of choice.
• In case of domicile of choice :- since the domicile of choice is
voluntarily acquired if there is requisite intention and
residence, so it is extinguishable in the same manner, i.e
merely by a removal from the country with an intention not
to return and even without acquiring a fresh domicile.
• Case Udny v Udny
• In the case of a dual or multiple residence, what is necessary
is that the country ceases to be the chief residence.
• The domicile of origin- which in its inspection is not a matter of free will
but it communicated to a person by operation of law, it not extinguished by
mere removal with an intention not to return. It can not be lost by mere
abandonment. It endured until supplanted by a fresh domicile of choice.
• Bell v Kennedy-
• The domicile of the origin of the Bell was Jamaica. His parents were from
Scotland but posses the domicile of Jamaica. He was educated in Scotland
and returned to Jamaica on his majority. 14 years latter on 1837 he left
Jamaica with an intention not to return ever and reside with his mother in
law in Scotland. He was looking for an estate. He was not successful to get
an estate- while his wile died in 1838- after that he bought an estate.
• Main question was what is his domicile at the time of his wife death? It
was held that Jamaica.
 Revival of the Domicile of Origin
• If the domicile of origin is displaced as a result
of domicile of choice. What law construed out
of this?- that means- the domicile of origin of
merely placed in abeyance for the time being.
• That means, the domicile of origin always
remains at the background and its ever ready
to get revive and to fasten upon the propositus
immediately he abandons his domicile of
choice.
• Bowie (or Ramsay) v Liverpool Royal Infirmary-
• George Bowie is from scotland- married after his arrival in
England- had a Son- (lets call hims X)- what will be his
domicile of origin? And when? Scotland and till majority
• At the age of 22- he left U.K. with an intention not to come
back gain- what is his domicile of choice then and now?
• He acquires the domicil of choice in Peru- bit after few
year of this her left Peru for hoping doing good in life- and
started living in New york- but he was undecided whether
to settled in Virginia or California.
DOMICIL OF DEPENDENT PERSONS
AND DOMICIL OF MARRIED WOMEN
• There are two classes of dependent persons
• Children and mentally disorder persons.
 Children
• A child’s domicile of origin
• A child acquired a domicile of origin by
operation of Law at the time of birth.
• If legitimate and born at his father’s lifetime-
The domicile of father
• If illegitimate or born after his father’s death-
the domicile of mother
 Domicile of Dependency

Children

• Lord Westbury drew attention to the particular nature of the domicile of

origin, observing: It is a settled principle of law that no man shall be
without a domicile, and to secure this result the law attributes to every
individual, as soon as he is born, the domicile of his father if he be
legitimate ... this has been called the domicile of origin and is involuntary.

• Domicile of a legitimate child is the domicile, of whatever sort, his father

had at the time of the child’s birth. An illegitimate child or a posthumous
child takes its domicile of origin from its mother’s domicile at the time of
its birth but this is somewhat artificial, as the issue of legitimate status
may itself depend on domicile.
 Domicile of Dependency Children

As a dependent domicile, this would change with that of

the parent,
• (a) after the mother of an illegitimate child has died, or
both parents have, in the case of a legitimate child, the
child will continue with the domicile of dependence until
he is capable of acquiring an independent domicile;
• (b) a child is capable of acquiring an independent
domicile when reaching the age of 16 or if he marries
under that age;(can be changed as per laws of different
country, the test is, capacity)
 Domicile of Dependency Children

• (c) in cases of a legitimate child whose the parents are living

apart and where the child has a home with the mother, then
the child will acquire the domicile of the mother and, in such a
circumstance, if he lives with the father he will acquire the
domicile of the father;
• (d) in situations where the father dies, the domicile of the child
will normally follow that of the mother, save in those situations
where the mother leaves the child with a relative when moving
to a new country;
• (e) in the case of an adopted child, such a child will treated as if
he were the natural child of his adopted parents.
 Mental Disorder
• The domicil of a mentally diordered person can not be
chnaged either by himself since he is incapable of forming an
intention, or by a person by whom care has been entrusted.
• Accordance with the general principle will be applied.
• Thigs are not cleare when the person attain the majority.
• Two issue- continue with the mental issue after majority as
well- genegal principle applied her
• When he become mentally disorded after her/his mejority-
two possible solution – paramount consideration the person’s
concern interest – court of protection can change- secondly
the country which has closest connection.
 Domicile of Married women
• the rule was that a married woman acquired the
domicile of her husband and her domicile would
change with that of her husband. The rule was
based on the common law principle of the unity of
husband and wife; the rule was supported by clear
authority in the highest courts. (Lord Advocate v
Jaffrey),
• This has changed in contemporary world- wife no
more follow husband and free to chose her own
independent domicile.
 Domicile of Corporations

Domicile
• While the residence of a company will be
determined by where its central control exists,
the domicile of a company will normally be the
place of its incorporation.
• The law of domicile was designed to apply to
individuals and was fully developed before the
concept of the separate legal personality of a
company was established in Law
 Problem with Domicile
threefold, criticisms
• (a) that it is difficult to determine where an individual is domiciled;
• (b) that any litigation depends on a long chronological survey and
involves inferences drawn from a life that may be uncertain; and
• (c) that either an individual is assigned a domicile with which he
has little connection or the domicile of origin is deemed to have
revived.
• it totally neglects that group of people who have been living in a
country for some time but whose future intentions are unclear or
are to move elsewhere when the present marriage is dissolved
 Problem With Domicile
• doctrine of revival
• Udny v Udny . The case involved a certain colonel whose domicile of
origin was Scotland but who lived in England for some 30 years.
Having gotten into financial difficulties, he sold off his property in
England and moved over to France where he remained for 9 years.
The question arose as to his domicile at that point of time and the
House of Lords held that even if he had had an English domicile of
choice, he had abandoned it when he left for France. But, as there
was no evidence that he intended to acquire a French domicile, his
domicile of origin revived. So the good Colonel Udny found himself
with a Scottish domicile even though he had not been anywhere
near Scotland for over 40 years and had no intention of doing so
either.
 Nationality
• Nationality is now used to determine the
personal law in a number of European
jurisdictions.
• Partly, this is a legacy of the rise of nationalism
in 19th century Europe and, partly, it is a
consequence of the Code Napoleon.
• Nationality was attractive to emerging States
anxious or insecure about their own national
identity.
 Nationality and Domicile
• Nationality is a person’s political status- by virtue of which she owes allegiance to
some particular country- and domicile is a civil stauts- it provides by which a
person rights and obligation are determined.
• Nationality dependes on the connection of identity with a nation- Domicile only
need a residence and intention to live there permanetly.
• Hence a person can be national of one country but domiciled in another country.
• But the history has a different mark- from the past two centuries- it has been
noticed that the ascertainment of the personal law, which ought to be governed
by legal and practical consideration, has in fact been influenced by varying
political and economic factors- history and rise in nationalism has lot to play in
this context. This has become in a perticular georgraphy too- mainly in Europe
and south America
• The common law jurisdiction – the commonwealth and the USA still stand by
domicile.
• Nationality - easy and clear in comparison of the
domicile- easy to understad and ascertainable.
• But do have the following difficulties too
• When the person does not have enough prolong
connection
• Nationality – a more fallible criteria- dual
citizenship or a stateless person?
• The unclear law of a geo-political unit- The UK
law??(is really there)
Ordinary Residence- Habitual Residence
• What is the meaning? For a log time it was believed that the adjective does not
add anything to the noun.
• Lord Scarman- in the case of house of lord- Shah v Barnet London Borough- said
that – there are two important feature –
• Voluntary adoption of the residence- can include the purpose of education and
others too. The ordinary residence must be given the natural meaning not an
artificial legal construction. Unless it can be shown that the statutory framework
requires a difficult meaning.
• Ordinary residence does not conote continuous physical presence , but physical
presence with some degree of continuity and intention to reside not alone
sufficient- (lawfull)
• Court of Appeal- while repeatedly following – the judgement of Lord SCARMAN-
and held in multiple time that there is no difference between the traditional
concept of ordinary residency and the more contemporary and fashionable
concept of the Habitual Residence.
 Habitual Residence
The concept of ‘habitual residence’ is a particular favorite of the
Hague Conference on Private International Law. The expression
appears in a number of international conventions and, not
surprisingly, has been adopted in implementing legislation.
• Difficulties have arisen as to its precise meaning; clearly there
is distinction between ‘residence’ and ‘habitual residence’,
• but it is by no means clear that there is a distinction between
‘habitual residence’ and ‘ordinary residence’. It would seem
that the word ‘habitual’ refers to the quality and not the
duration of residence.
 Habitual Residence
• "Habitual Residence" indicated "a quality of
residence rather than a period of residence.
Since the use of the word "habitual“ qualified
the word "residence", the residency must be
of a more permanent or enduring nature. It
has to be something more than a "physical
presence" or residence of temporary or a
secondary nature' 's or even "ordinary"
residence.
Acquisition of a new habitual residence

• Residence – temporary withdrawal is allowed-

and unlawful presence is not alllowed
• An appreciate minimum period – attainment
of degree of continuity-
• A settled intention- less than domicile- future
• Valuntary nature
 Merits of Habitual Residence
• habitual residence has the advantages of the
concept of domicile, its crowning glory lies in
the fact that it does not suffer from the
maladies that afflict the latter as the
requirement of future is not required.
• there is no such thing as a "dependent
habitual residence"
 Demerits of Habitual residence
• How long should the residence endure in the
minimum? The Draft Convention at the Hague
Conference suggested a year; but not without
stating that there had been a substantial volume of
disagreement among all those whom they had
consulted on that point.
• The second disadvantage is that habitual residence
tends to affect expatriates negatively
• Thirdly, the concept of habitual residence is only of
limited assistance to married women.
 Multiple residence
• The propositus in Plummer v IRC had an English domicile of origin but sought to
establish, for tax reasons, that she had during the tax years 1983-4 and 1984-5 a
domicile of choice in Guernsey. In 1980 the propositus' mother and sister had
moved to a house in Guernsey. During the two years in question the propositus
had been a student in London, spending most of each term in England but
staying with her family in Guernsey for some (but not all) weekends and
vacations. In 1983-4 the propositus spent 245 days in England and 106 days in
Guernsey: in 1984-5 the propositus spent 247 days in England and only 87 days
in Guernsey. The commissioners held that a domicile of choice in Guernsey had
not been established. The commissioners did not find it necessary to consider
the intention of the propositus, but founded their determination solely upon the
question of residence; and held that the facts did not show that the propositus
• • . . had ceased to have her chief residence in England and had become . . . an
inhabitant of Guernsey.