Domicile in Private International Law

APRIL 25, 2016Ankush Chattopadhyay (13LLB011)

3rd Year, School of Law, The North Cap University

C ontents

1. Acknowledgement………………………………………………………2

2. Introduction……………………………………………………………..3

3. Definition of Domicile………………..…………………………………..4

4. Ascertainment of Domicile…….………….…….……………………….9

5. Domicile and Nationality……………………………………………….10

6. Rules and Kinds of Domicile…………………………………………...12

7. Conclusion………………………………………………………………15

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Acknowledgement

This research was supported by the esteemed teachers of our institution as well as all the

students who are a part of the team. I am thankful to our colleagues who provided expertise

that greatly assisted the research, although they may not agree with all of the interpretations

provided in this paper.

I am also grateful to Prof. Neha Saini for her immeasurable assistance in teaching the subjects

and in clarifying all the doubts and questions we posed.

I have to express our appreciation to the Law Faculty of The North Cap University for

sharing their pearls of wisdom with us and for making and forging us not only into better

human beings but also into knowledgeable professionals.

I am also immensely grateful to all my peers and friends for their comments and their

continuous support without which it would have been a lot harder and nigh impossible to

finish this manuscript.

Although there were numerous people and entities helping and assisting us through our journey, any

errors that have been committed are my own and should not tarnish the reputations of these

esteemed professionals.

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Introduction

Differences which exist between two or more legal systems, provide the theoretical

foundation for the subject known as conflict of laws. Every legal systems has rules which

tends to distinguish it from others. With particular regards to matters considered as bothering

on an individual’s civil status different legal system have established rules as to the law,

which ought to govern in those cases. These matters usually involve those aspects of the

individual’s interests for which resort can be had to a single system of law, in making a

decision as to an appropriate law that ought to govern.

In order to identify the specific system of law that should govern these issues with regards to

a particular or individual the laws of different countries have established diverse criteria.

While in England domicile is the rule, in Italy and some other European countries it is

nationality. Some other systems tends to combine both criteria1. As part of our received

English law, domicile is the criterion recognized in the Nigerian law

In this project, the various definitions of domicile shall be examined, the English conception

of domicile, domicile and nationality, how domicile can ascertained and the forms and types

of domicile.

1 Agbede. I. O: Themes on conflicts of laws, Ibadan. Shaneson , 1989. P 49

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Definition of Domicile

It is not an easy task to define the concept of domicile because, the concept is not uniform

throughout the world therefore it is subject to diverse meanings. According to Sir George

Jessel;

“The term domicile is incapable of definition2”

Morris also has asserted that

“Domicile is easier to illustrate than it is to define3”

This is probably due to the fact that traditional definition has become rather obsolete as a

result of judicial modification, which has attended the concept overtime. The Oxford

Advance and Learners Dictionary define domicile as

“The place where somebody lives, especially when it is stated for official or legal

purpose4”

The Black Law Dictionary defines the concept of the domicile as

“A person’s legal home. That place where a man has his true, fixed and permanent

home and principal establishment, and to which whenever he is absent he has the

intention of returning5”

Lord Cranworth attempted a definition sometimes ago in Whicker v Hume6 to the effect that;

“By domicile we mean home, the permanent home, and if you do not understand

your permanent home I am afraid that no illustration drawn from foreign writers

or foreign language will very much help you to it”

2 Doucat v Geoghegeon (1878) L. R. 9 Ch. D at 2563 Morris, Conflict of laws, 4th ed by J. C McLean, Sweet and Maxwell, 1993, p.126th edition4 6 th edition by Sally Wehmeier (2000)5 Bryan A. Garner: 8th edition Thompson West 20046 (1958) H L C 124 at 160

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This definition by Lord Cranworth is obviously simplistic from the subsequent judicial

developments on these issues. In fact there is an opinion that the definition by Lord

Cranworth is, far too simplistic and indeed somewhat misleading7

Lord Cranworth’s definition errs on the side of simplicity because there are circumstances in

which a person may not be residence in his place of domicile. The fact that one has lived in a

particular place for several years is irrelevant where there is intention to remain there8.

Morris also objects to this definition on the ground that a person’s domicile may not always

be the permanent home. In fact according to him;

“A person may be domiciled in a country which is not and never has been his

home; a person may have two homes but he can only have one domicile.”

He concluded that there is often a wide difference between the English concept of domicile

and population of a home.

Judicial authorities have equally shown that to acquire domicile according to the received

English law, it is necessary to establish residence in a place and an intention to reside there

permanently. The English courts have with complete justification established the principle of

definition of domicile for the purpose of English rule conflict of laws according to the

concept in English law Nevertheless it is clear from decided cases that to acquire domicile in

territory, according to the received English law, it is necessary to establish residence and an

intention to remain there permanently (or indefinitely). A domicile can only be acquired by

the concurrence of these two factors. However, an intention of indefinite residence is not

equivalent to permanent residence if it is contingent upon uncertain event.

Thus in Moorhouse v Lord9 it was held that:

“The present intention of making a place a person’s permanent home exists only

where he has no other idea than to continue there without looking forward to any

event, certain or uncertain which might induce him to change his residence. If he

has in his contemplation some event upon the happening of which his residence

will cease it is not rather a present intention of making it a temporary home, though

for a period indefinite and contingent.”

7 Collier J. G: Conflict of laws, 2nd edition, Cambridge, C. U. P 1994. P 40.8 White v Tenant (1880) W L R 790 and IRC v Bullock (1976) W L R 1178 249 (1863) 10 H L Cas 272 at 285-286

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This rule of domicile might have worked well during its formative (mid-Victorian England)

era of comparative certainty, simplicity and legalism but in the contemporary world of

tension and increased mobility, few things for human affairs can be certain least of all is

one’s intention.

As stated by Cheshire10 :-

“Singular indeed would be the man who could unreservedly warrant that whatever

good or evil might befall him he would never return whence he came”

In Graveson’s11 view, this definition no longer fits the complexity movement and

sophistication of modern life in which many of our best intentions become temporary though

frustrating circumstances. Rather curiously, this unsatisfactory definition of the English

concept of domicile has been in Fonseca V Passman12, Thomas. J. held that:

“To establish a domicile in Nigeria the mere factum of residence here is not

sufficient…. There must be unequivocal evidence of animus manendi or intention

to remain permanently”

More curiously, however is the failure of the Nigerian judged to distinguish between inter-

state and international situation. For instance, in Udom v Udom13, Coker. J. who was

concerned with an inter-state conflict problem said:

“The subject must not only change his residence to that of a new domicile, but also

must have settled or resided in the new territory cum animo manendi The residence

in the new territory must be with the intention of remaining there permanently to

reside, the factum is the actual residence.”

This dictum appears to ignore the warning of Beale14 that the circumstances of life in a

country must have weight with the judge in determining the meaning of domicile.

“In USA there is a habit of moving from place to place; in England the habit is to

remain indefinitely in one place. The rule of English law will have many

Americans without a domicile of choice.”

10 Cheshire: Private International Law (7th ed) at 14511 Graveson: Conflict of laws (1969) p. 20712 (1958) WRNLR 41 at 4213 (1962)LLR.112 at 11714 Beale, J.HA. :Treatise on the conflict of law (1935),P.106

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American judges are equally conscious of the inconvenience that will result from adopting

the English rigid definition of domicile. Thus, Parker. J. held in Putman v Johnson15 In this

new and enterprising country it is doubtful whether one half of the young men, at the time of

their emancipation, fix themselves in any town with an intention of always staying there.

They settle in a place by way of experiment to see whether it would suit their view of

business and advancement in life, and with an intention of removing to some more

advantageous position, if they should be disappointed. Nevertheless they have their home in

their chosen abode while they remain.

Where in accordance with Coker. J’s. dictum shall we locate the domicile of the nomadic

cattle Fulani’s? it is common knowledge that an Ibo man, for example, who was born in a

northern state, who has been living in the in North all his life and who has no fixed intention

as when he would leave there, would nonetheless entertain a hope, however remote, of

returning to the East “dead or alive”. It may be appropriate to recall, at this junction, the

decision in a post reception English case, where it was held that a person who intended to

reside in a country indefinitely might be domiciled there although he envisaged the

possibility of returning one day to his domicile of origin.

In Graveson’s16 view, we must not deny local domicile to a man who has settled in a place

without intending to remain there as long as circumstances allow him to do so. In view of the

limited function of domicile in matters of inter-state conflict problems in Nigeria. It is

suggested that habitual residence in any constituent state should be sufficient to found a

domicile in such a state.

This suggestion appears more practical and more consonant with the social conditions in

Nigeria than the dictum in Udom v Udom. In a union where inter-state 28 movements are

unrestricted, it will be difficult, if not impossible to find people who will wish to reside in a

particular state for better for worse.

Moreover, it is in best interest of Nigerian people to discourage ethnic cohesion and

minimizing its attendant evils. Such a social policy ought to influence judicial decisions, but

the decision in Udom v Udom domicile does not appear to take account of this policy.

As for the necessary requirements for establishing a domicile in Nigeria at the international

level, it would be better, one imagines, to impute an intention to be domiciled in Nigeria to

15 10 Mass 488,501(1813)16 Graveson,op,cit,Five Sheffield Jubilee Lectures at 97

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person’s who are habitually resident in Nigeria. This suggestion is designed to aid the courts

in ascertaining a person’s v. therefore, if there is evidence convincingly showing that a

propositus has no such intention, he should he should be denied a local domicile.

The object of determining a person’s domicile is to connect him with some legal system for

certain legal purposes. To establish this connection it is sufficient to fix his domicile in some

“country” in the sense of the conflict of laws .e.g. England or Scotland, California or New

York. It is not necessary to show in what part of such a country he is domiciled17, but it is

usually insufficient to show that he is domiciled in some composite state like the United

Kingdom, the United States, Australia or Canada with, each of which comprised several

“countries” in the conflict of laws sense. A person who emigrates, Scotland or to Canada with

the intention of settling either in England or British Columbia, does not change his domicile

until he has decided in which country he intends to settle and has actually settled there18.

Ascertainment of Domicile17 Re craignish(1892)3 Ch 180,19218 Att.Gen For Alberta v Cook (1926) AC 444

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The question as to whether a person has established factual residence in a particular country

raises little or no problem in practice. However, the thorough manner in which the English

courts attempt to discover the necessary intention has produced absurd results.

These courts have found it necessary to consider such difficult as a person’s taste, habits,

conducts, action, ambitions, health, hopes, projects and so on…there is no act, no

circumstances in a man’s life however trivial it may be in itself, which ought to be left out of

consideration…‟But these factors are, one imagines, hardly suitable for judicial enquiry.

What is rather absurd in the whole exercise is that circumstances which are treated as

decisive in one case may be disregarded in another or even relied upon in support of a

different conclusion. No circumstances of group of circumstances appear to furnish a definite

criterion of the existence of the necessary intention.

The latitude of discretion which the courts reserve to themselves makes their decisions appear

arbitrary and very often inconsistent. The result is that a person’s domicile may remain

uncertain throughout his life. Must our domicile asks Gravenson continue to be kept a legal

secret from us until we either invoke divorce jurisdiction or die?

A desirable approach for the Nigerian courts in this regards is to tackle this problems with the

presumption that a person intends to reside indefinitely in a country where he is habitually

resident.

This presumption which should be rebuttable will, it is hoped, obviate the very complicated

problems involved in discovering a person’s exact intention when he is absent from

jurisdiction or when (as is usually the case) he is already dead.

Domicile and Nationality

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The change from domicile to nationality on the continent of Europe started in France with the

promulgation of the code Napoleon in 1804. One of the principal objects of the codifiers was

to substitute a uniform law throughout the whole of France for the different coutumes of the

French provinces. In matters of personal status these coutumes applied to person’s domiciled

within the province, whenever they happened to be. It was natural that the new uniform law

should apply to Frenchmen everywhere, 31 Article 3 (1)19 of the civil code provided that the

laws governing the status and capacity of person’s govern Frenchmen even though they are

residing in foreign countries. No provision was expressly made for the converse case of

foreigners residing in France, but the French courts held that in matters of status and capacity

they too were governed by their national law. The provisions of the French code were

adopted in Belgium and Luxembourg and similar provisions were contained in the Austrian

code of 1811 and the Dutch code of 1829.

The change from domicile to nationality on the continent of Europe was accelerated by

Mancini’s famous lecture he advocated the principle of nationality on the ground that laws

are made more for an ascertained people than for an ascertained territory. A sovereign (he

said) in framing laws for his people should consider their habits and temperament, their

physical and moral qualities and even the climate, the temperature and fertility of the soil.

This was heady wine for a people preparing to throw off a foreign yoke and unify all the

small state of Italy into a new nation. Under Mancini’s influence article 6 of the Italian civil

code (1865) provided that “the status and capacity of person’s and family relations are

governed by the laws of the nation to which they belong”. Mancini’s ideas proved extremely

influential outside Italy too, and in the second half of the nineteenth century the principle of

nationality replaced that of domicile in code after code in continental Europe, until today only

Norway and Denmark retain the principle of domicile. The result is that the nations of their

world have become divided in their definition of the personal law; and it is the fact more than

any other which impedes international agreement on uniform rules of the conflict of laws.

What then are the arguments in favour of nationality and domicile as the personal law?

The advocates of nationality claim that it is more stable than domicile because nationality

cannot be charged without the formal consent of the state of new nationality. However, as has

been well said, “the principle of nationality achieves stability, but by the sacrifice of a man’s

personal freedom to adopt the legal system of his own choice. The fundamental objection to

19 Code Napoleon 1804

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the concept of nationality is that it may require the application to a man, against his own

wishes and desires has perhaps risked his life”.

It is also claimed that nationality is easier to ascertain than domicile because it involves a

formal act of naturalization and does not depend on the subjective intentions of the

propositus. This is undoubtedly time, though there may be difficult cases of double

nationality or of statelessness20. But it does not follows that the most easily ascertained laws

is the most appropriate law. Many immigrants who have no intention of returning to their

country of origin do not trouble to apply for naturalization. It would have been ludicrous to

say that only the English courts, and not the courts of California, had jurisdiction to grant a

divorce to the film actor Charlie Chaplin- or, for that matter, that only the American courts

had jurisdiction to grant a divorce to Mr. Winans.

The decisive consideration for countries like the United Kingdom, the United State, Australia

and Canada is that, save in a very few respects, there is no such things as United Kingdom,

American, Australian, or Canadian law. Since the object of referring matters of status and

capacity to the personal law is to connect a man with someone with the legal system for many

legal purposes, nationality breaks down altogether if the state contains more than one country

in the sense of the conflict of laws. This is something which continental lawyers seem unable

to comprehend. They sometimes speak as though the United kingdom and the United States

are as legally backward today as France was before 1804 or Italy before 1865, simply

because there is a diversity of legal systems throughout the state.

Rules and Kinds of Domicile

There are five general rules or principles to be discussed

20 Beckett(then second legal adviser to the foreign office) 1939

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1. It is a settled principle that no person can be without a domicile21. The rule springs

with some system of law by which a number of his legal relationships may regulated.

“it is a settled principle said Lord Westbury in leading case22, 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 the child be legitimate, and the

domicile of the mother if illegitimate,. This has been called the domicile of origin, and

involuntary23”

Also to a foundling, the place where is found will be his domicile. This prevail until a

new domicile has been acquire24, so that if a person leaves the country of his origin

with an undoubted intention of never returning to it again, nevertheless, his domicile

of origin adheres to him until he actually settles with the requisite intention in some

other country.

2. A person cannot have two domiciles. Since the object of law in insisting that no

person shall be without a domicile is to establish a definite legal system by which

certain of his rights and obligations may be governed, and since the fact and events of

his life frequently impinge upon several countries, it is necessary on practical grounds

to hold that he cannot possess more than one domicile at the same time, at least for the

same purpose.

Domicile signifies connection with what has conveniently been called a “law

district”25 i.e. a territory subject to a single system of law. In the case of a federation,

where the legislation authority is distributed between the state and federal legislatures,

this law district is generally represented by the particular state in which the propositus

has established his home26. A resident in the USA, for instance is not normally

domiciled in the USA as such, but in one of its states. Nevertheless, the doctrine of

unity of domicile one man, one domicile- may be modified by federal legislation.

Thus the family law 1975, which has force throughout the commonwealth of

Australia, provides inter alia that proceedings for a decree of dissolution of marriage 21 Bell v Kennedy(1868) LR 1 Sc & Div 30722 Udny v Udny (1869) L.R. 1 Sc 441, 45823 Westlake :S 248; Dicey and Morris P.12624 IRc v Bullock(1976) 1 WLR 1178 at 118425 Dicey and Morris, pg 118- 11926 Odiase v Odiase (1965) NMLR 196

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is “domiciled in Australia”27. Thus, the effect within a limit field is to create an

Australian, as distinct from a state, domicile and, indeed, one that, because of

statutory amendments in this limited content, is different from domicile in a state for

other purpose, e.g. succession28

3. The fact that domicile signifies connection with a single system of territory law does

not necessarily connote a system that prescribes identical rule for all classes of

persons. It may well be that in a unit such as India different classes of the population

according to their religion, race or caste, but none the less it is the territorial law of

India that governs each person domiciled there, notwithstanding that Hindu law may

apply to one case, Muslim to another.

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

has been acquire. Hence, the burden of proving a change of domicile lies on those

who assert it. Conflicting views have been expressed as to the standard proof require

to rebut the presumption. According to Scarman. J., the standard is that adopted in

civil proceeding, proof on a balance probability not that adopted proof beyond

reasonable doubt in the criminal proceedings.29 On the other hand, according to Sir.

Jocelyn Simon P., “the standard of proof goes beyond a mere balance of

probabilities30”. This observation no doubt stems from such cases as Winans v A.G31

which appear to regard the intention in favouring of retaining the domicile of origin as

an almost irrefutable presumption Scarman. J., however, added that, two things are

clear-first, change, the domicile of origin persists; and secondly, that the acquisition

of a domicile of choice is serious matter not to be lightly inferred from slight

indications or casual words”.

The presumption of continuance of domicile varies in strength according to the kind

of domicile which is alleged to. It is weakest when that domicile is one of

dependency32 and strongest when domicile is one of origin, for “its character is more

enduring, its hold stronger, and easily shaken off.27 Family Law Act 1975, s 39(3) (b)28 Lloyd v Lloyd (1961) 2 FLR 34929 Re Fynn (No 1 ) (1968) 1 WLR 10330 Henderson v Henderson ( 1969) p. 77 at 8031 (1904) AC 28732 Harrison v Harrison (1953) 1 WLR 865

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The law commission’s proposals for the reform of the law of domicile would leave

unchanged the rule the burden of proving the acquisition of a new domicile falls on

the person alleging it. However, the normal civil standard of proof on a balance of

probabilities would apply in all disputes about domicile and no higher on different

quality of intention would be required when the alleged change of domicile was from

one acquired at birth than when it was from any other domicile.

5. For the purpose of a rule of conflict of laws, domicile means domicile in the English

sense. The question where a person in domiciled is determined soled in accordance

with English law. Thus, persons domiciled in England often acquired a domicile of

choice in France without complying with the formalities formerly required by French

law for the acquisition of a French domicile33. Conversely, a person domiciled in e.g.

France may acquire an English domicile of choice regardless of whether French law

would regard him as domiciled in England. There is one statutory exception to this

rule. Section46(5) of the family law Act 1986 refers to domicile in a country in the

sense of that country’s law.

It is too wide a formulation to say that an English court, domicile means domicile in

the English sense. Under the renvoi doctrine, English courts sometimes refers to the

whole law of a foreign country, including its rules of the conflict of laws, and accept a

reference back to English law either because the foreign conflict rule referrers to the

law of the nationality, and the propositus is a British citizen; or because the foreign

conflict rule refers to the law of the domicile, and the foreign court regards the

propositus as domiciled in England. In the latter case, it is not true that domicile in

English court always means domicile in the English sense; but it is still true that it

means domicile in the English sense for the purpose of an English rule of the conflict

of laws.

There are different kind of domicile and they are;

1. Domicile of origin

2. Domicile of choice

33 Collier v Rivas (1841)2 Curt 855

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3. Domicile of dependent person e.g. domicile of children, married women, persons of

unsound mind and so on.

Conclusion

In conclusion of this project, domicile is regarded as a relative term which varies in meaning

according to different situation (for example taxation divorce interstate succession) to which

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it is applicable. A judge must however inevitably focus his attention on the concrete problem

before him, otherwise he will neglect the social and economic requirements of the situation.

Also it is hard to believe that judges in this country have not been influenced by an awareness

of the consequences of the finding as to domicile in the particular case before them. There is

evidence that the courts wish to achieve a number of policy objectives in particular, to

validate wills and to tale jurisdiction to grant a divorce whenever possible.

It is easy for courts to achieve the right result by manipulating the process of ascertaining the

domicile, and is a likely explanation of many cases which are otherwise hard to reconcile on

their fact.

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