Domicile (law)
In law and conflict of laws, domicile is relevant to an individual's "personal law", which includes the law that governs a person's status and their property. It is independent of a person's nationality. Although a domicile may change from time to time, a person has only one domicile at any point in their life, no matter what their circumstances. Domicile is distinct from habitual residence, where there is less focus on future intent.
As domicile is one of the connecting factors ordinarily used in common law legal systems, a person can never be left without a domicile and a domicile is acquired by everyone at birth. Generally domicile can be divided into domicile of origin, domicile of choice, and domicile by operation of law. When determining the domicile of an individual, a court applies its own law and understanding of what domicile is.
In some common-law countries, such as Australia and New Zealand, the concept of domicile has been subject to statutory reform. Further, under Canada's Divorce Act, domicile has been replaced as the basis for which a provincial court has jurisdiction to hear and determine a divorce proceeding. Instead, "A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding". Although domicile was traditionally known as the most appropriate connecting factor to establish an individual's personal law, its significance has declined over the years in common law systems.
Description
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 became adults 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.Domicile is governed by lex domicilii, as opposed to lex patriae which depends upon 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:
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 of laws and other private law matters.
General principles
Domicile of origin
Domicile of origin is established by law at birth to every individual. It refers to the domicile of the person's parent, and is hard for the person to lose. This means that it is not necessarily established based on where an individual was born or where their parents live. An example of domicile of origin was explained in Udny v ''Udny'', where Udny's domicile of origin at birth was that of Scotland, even though he was born and lived in Tuscany and his father lived in England. The court made this determination based on the fact that Udny's father's domicile of origin was that of Scotland. This means that even if a person leaves his or her country of origin with no intention to return to it, the person will still be domiciled there until they obtain a new domicile of choice.However, a child without parents will have a domicile of the place of which they were found. Further, a minor's domicile of origin will be based on the particular common-law country and its rules.
Domicile of choice
When a person is legally allowed to change their domicile of origin, they can acquire a domicile of choice. However, until an individual obtains a new domicile of choice, their domicile of origin remains. Domicile of choice can be achieved by intention and residence. This means that if an individual is living in a country and leaves it with the intention to return, then they will not have a domicile in the country they went to; instead, their domicile of origin will remain. As stated in the Foote v Foote case, a domicile of choice can be lost or abandoned if certain factors are met.Domicile of dependency (also known as domicile by operation of law)
Minors
At common law, the domicile attributed to a child at birth depends on the domicile of the relevant parent. In Canada, the domicile of children generally depends and changes with the domicile of the parent with whom the child habitually resides. There are certain Acts within Canadian provinces for example to help determine what the domicile of a minor is, for example, section 67 of the Family Law Act of Ontario."Domicile of Minor
67 The domicile of a person who is a minor is,
if the minor habitually resides with both parents and the parents have a common domicile, that domicile;
if the minor habitually resides with one parent only, that parent's domicile;
if the minor resides with another person who has lawful custody of him or her, that person's domicile; or
if the minor's domicile cannot be determined under clause, or, the jurisdiction with which the minor has the closest connection."
However, depending on the country, the common-law approach might remain in place. For example, in England, the domicile of origin of a child is determined at birth by the domicile of the father if the child is legitimate or by the domicile of the mother if the child is illegitimate.
Married women
At common law, a married woman suffered a legal incapacity to acquire her own domicile and thus retained the domicile of her husband. In Canada, some provinces, such as Ontario, Manitoba, and Prince Edward Island, British Columbia, domicile of dependency has been abolished.An example of Prince Edward Island's Family Law Act is reproduced below:
"59 For all purposes of the law of Prince Edward Island, a married person has a legal personality that is independent, separate and distinct from that of his or her spouse"
Even in the absence of statute, it is unlikely that Canadian courts would now refuse to recognize the capacity of married women to establish their own domicile. In other common-law countries, such as Ireland, the Supreme Court has held that this concept is inconsistent with the country's Constitution. Further, the United Kingdom, New Zealand, and Australia have abolished this concept.
Mentally incapable
It is generally accepted that a person who becomes mentally incapacitated in adult life is no longer capable of forming the intent to acquire a domicile of choice and retains whichever domicile they held prior to becoming incapable. If an individual is born mentally incapable at birth or becomes so before reaching the age of majority, their domicile of dependency may continue to depend on the change with their parents, even after they reach the age of majority. There is also a "recommendation of the English and Scottish Law Commissions under which an adult who lacks mental capacity to acquire a domicile would be considered domiciled in the country with which he or she is for the time being most closely connected."Application
A person's domicile can have important personal consequences:There is tension between "domicile of origin" and "domicile of choice" which arises out of the fact that the latter can only be acquired through fulfilling both:
The ability to settle permanently has been held to arise only when one can become a permanent resident of the jurisdiction for immigration purposes. For example, suppose that A came from England to Canada on a visa to work for an employer in Ontario. While there, their son B is born. A likes Canada enough to have their status changed to that of landed immigrant. When B comes of age, they decide to leave Ontario for good, but dies before settling permanently elsewhere. B's domicile of origin is England, because of A's initial inability to settle permanently in Ontario. When A obtains permission to land, Ontario becomes their domicile of choice, and B automatically acquires it as a domicile of dependency. When B attains the age of majority, Ontario becomes their domicile of choice until they decide to leave for good, at which time it reverts to the domicile of origin. Their new domicile of choice would only occur once they had been able to settle permanently in a new jurisdiction.
However, it is more difficult to abandon a domicile of choice than to acquire it. In the case of abandonment, both the above conditions must be fulfilled simultaneously as they are interrelated, whereas they are discrete in the latter case of acquisition.
The lack of intention to remain permanently can lead to unexpected results:
In extraterritorial jurisdiction
Certain anomalous jurisprudence occurred where persons lived abroad in cases relating to extraterritorial jurisdiction. The East India Company was declared to be equivalent to a foreign government, and persons engaged in service to it for an indefinite period were deemed to have acquired Anglo-Indian domicile. Persons in the service of the Crown, as well as independent traders, could not acquire this status. As a consequence of the Indian Mutiny, the Company ceased to function as a government upon the passage of the Government of India Act 1858, and such domicile was not capable of being acquired thereafter.Unsuccessful attempts were made to adapt that case law to other circumstances. In 1844, Stephen Lushington of the Consistory Court observed in dicta that, in the case of the Ottoman Empire, "every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the dominions of the Porte." Similar statements were expressed by the Court of Chancery in 1883 in rejecting the concept of an Anglo-Chinese domicile, where Chitty J of the Court of Chancery stated that "There is no authority that I am aware of in English law that an individual can become domiciled as a member of a community which is not the community possessing the supreme or sovereign territorial power." This was later endorsed by Judicial Committee of the Privy Council in 1888, in holding that "residence in a foreign country, without subjection to its municipal laws and customs, is therefore ineffectual to create a new domicile."
The reasoning behind such decisions was never satisfactorily explained, and the House of Lords later held in 1918 that these rulings built on dicta were wrongly decided and were thus swept aside. In holding that domicile in a foreign State could be properly acquired in such circumstances, Lord Finlay LC declared: