Domicile

Conflict of laws
Preliminiaries
Characterisation Incidental question Renvoi · Choice of law Conflict of laws in the United States Public policy Hague Conference
Definitional elements
State · Jurisdiction Procedure Forum non conveniens Lex causae Lex fori · Forum shopping Lis alibi pendens
Connecting factors
Domicile · Lex domicilii Habitual residence Nationality · Lex patriae Lex loci arbitri · Lex situs Lex loci contractus Lex loci delicti commissi Lex loci actus Lex loci solutionis Proper law Lex loci celebrationis Choice of law clause Dépeçage Forum selection clause
Substantive legal areas
Status · Capacity · Contract Tort · Marriage · Nullity Divorce (Get · Talaq) Property · Succession Trusts
Enforcement
Enforcement of foreign judgments Mareva injunctions Anti-suit injunctions
v • d • e

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In Conflict of Laws and for purposes of diversity jurisdiction, domicile (sometimes termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a person's status, capacity and rights. The international term for this as a connecting factor is the lex domicilii, i.e. the law of the domicile. Generally, a person is domiciled in the state or country where he has his permanent home and intends to reside.

In some jurisdictions, such as the United Kingdom, domicile is also important for tax purposes.

Outline of the concept

In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children become adult at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go. Hence, if according to the laws of their domicile a person has the right to marry multiple spouses, the marriages should not alternate between valid and invalid every time they cross a state boundary where the laws are different. If someone is an infant and therefore has reduced contractual capacity, that will tend to apply wherever they go. Furthermore, when a person dies, it is the law of their domicile that determines how their will is interpreted, or if the person has no valid will, how their property will pass by intestate succession.

Domicile should be distinguished from nationality which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two may be the same. However, where the country is federated into separate legal systems, nationality and domicile will be different. For example, one might have American nationality and a domicile in Texas, or British nationality and a domicile in Scotland. Further, one can have dual nationality but not more than one domicile at a time. A person may have a domicile in one state while maintaining nationality in another country. Unlike nationality, no person can be without a domicile even if stateless.

Domicile is distinct from habitual residence where there is much less focus on future intent. Domicile is being supplanted by habitual residence in international conventions dealing with Conflict and other private law matters.

“Domicile” has a somewhat technical legal meaning in common law jurisdictions and should not be confused with: (1) “Domicile” in civil law jurisdictions. (2) “Domicile” in EU regulations and international treaties (where a definition often overrides the common law sense of domicile). (3) “Domicile” in ordinary English usage.

The rules determining domicile in common law jurisdictions are based on case law in origin. Most jurisdictions have altered some aspects of the common law rules by statute, the details of which vary from one jurisdiction to another. The general framework of the common law rules has however survived in most jurisdictions and is in outline as follows:

Domicile of origin

Dicey states the common law rule thus:

Every person receives at birth a domicile of origin:

(a) A legitimate child born during the lifetime of his father has his domicile of origin in the country in which his father was domiciled at the time of his birth;

(b) A legitimate child not born during the lifetime of his father, or an illegitimate child, has his domicile of origin in the country in which his mother was domiciled at the time of his birth;

(c) A foundling has his domicile of origin in the country in which he was found.

(2) A domicile of origin may be changed as a result of adoption, but not otherwise.^[1]

In some jurisdictions the status of illegitimacy has been abolished, and slightly different rules apply where parents have differing domiciles.

Domicile of choice

Dicey states the common law rule thus:

Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise.^[2]

A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.

When a domicile of choice is abandoned, either

(i) a new domicile of choice is acquired; or

(ii) the domicile of origin revives.^[3]

Intention of permanent or indefinite residence is often difficult to prove because most people retain affection for their previous state and think that they may one day return.

The rule that the domicile of origin revives on abandonment of a domicile of choice has been altered in some jurisdictions.

Domicile of dependency

Dicey states the common law rule thus:

The domicile of a dependent person is, in general, the same as, and changes (if at all) with, the domicile of the person on whom he is, as regards his domicile, legally dependent.^[4]

In particular, during minority, a child's domicile of dependency changes to match that of the adult on whom the child is said to be dependent.

Domicile in the United States of America

Each State of the United States is considered a separate sovereign within the U.S. federal system, and each therefore has its own laws on questions of marriage, inheritance, and liability for tort and contract actions. Persons who reside in the U.S. must have a state domicile for various purposes. For example, an individual can always be sued in their state of domicile. Furthermore, in order for parties to invoke the diversity jurisdiction of a United States Federal Court, the plaintiffs must have a different state of domicile from at least one of the defendants.^[5]

Australian law

In Australia, the rules of domicile were originally part of common law rather than legislation. However, during the late 1970s and early 1980s, the Commonwealth and all the States passed Domicile Acts. The main purpose of these Acts was to remove discrimination against women. They also go a significant way towards codifying the common law rules of domicile; but they were not intended to be an all-encompassing codification of the common law.

The main purpose of the Domicile Act 1982 (Cth), was to abolish, insofar as it was part of the law of the Commonwealth or of the Territories, "the rule of law whereby a married woman has at all times the domicile of her husband" (s. 3(1)). In particular, section 6 provides that "The rule of law whereby a married woman has at all times the domicile of her husband is abolished."

The most important provisions of this Act are:

• "The rule of law whereby a married woman has at all times the domicile of her husband is abolished." (section 6)
• "The rule of law whereby the domicile of origin revives upon the abandonment of a domicile of choice without the acquisition of a new domicile of choice is abolished and the domicile a person has at any time continues until he acquires a different domicile." (section 7)
• A person has the capacity to have an independent domicile if, either, they have attained the age of eighteen years, or if they have ever been married, and if they have the mental capacity to possess an independent domicile, but not otherwise. (section 8)
• Section 9 makes rules concerning the domicile of children whose parents are separated or divorced (the domicile of the child is the domicile of the parent of custody), and children who are adopted (the domicile of the adopted child is the same as if they were the legitimate child of the adopted parents, or else if there is only one adoptive parent, the domicile of that parent)

Sections 10 and 11 deal with the domicile of choice in a particular country. The act defines "country" (in section 4) to include not just sovereign states, but also subnational entities such as states, provinces and territories. Section 10 provides that a person's domicile of choice is in a country if they intend that that country be their permanent home. Section 11 provides that, where several countries form a union (for example, the several states of Australia, or the several provinces of Canada), if a person is domiciled in that union, then, if no other rule applies in the case, they shall be domiciled in the country of that union with which they have the closest connection.

The Domicile Act 1982 (Cth) is almost word-to-word identical to the Domicile Act 1979 (NSW), Domicile Act 1981 (QLD), Domicile Act 1980 (SA), Domicile Act 1980 (TAS), Domicile Act 1978 (VIC), Domicile Act 1981 (WA). The main differences in the Commonwealth Act are additional provisions relating to the application of the law to the territories, etc.

United Kingdom Law

The rules are in short as set out above. The Domicile and Matrimonial Proceedings Act 1973 abolished the rule that a married woman had the domicile of her husband (with transitional rules for those married before 1 January 1974). The rules dealing with the domicile of minors differ slightly between England (governed by the Domicile and Matrimonial Proceedings Act 1973) and Scotland (governed by Section 22 Family Law (Scotland) Act 2006). ^[6]

See also

• Hauptwohnsitz - concept of main domicile in Austrian and German law
• UK Tax Domicile

References

External links

1. Taxation of Foreign Domiciliaries in UK law