Domicile is considered to be a connecting factor which links a person with a particular legal system. This legal system includes his personal law which determines the legal capacity of that person as for example whether that person has the legal capacity to marry or how the property of a deceased person is to be distributed. For instance a married man domiciled in England is under the jurisdiction of England for purposes of dissolving or annulling his marriage.
The concept of domicile is not just confined to conflict of laws but also extends to tax law and in fact many leading judgments defining domicile are tax cases.
1.1 Definition of Domicile:
The general meaning of domicile is 'permanent home'. But Lord Cranworth V-C in Whicker v Hume has defined domicile as,
"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 languages will very much help you to it. I think the best I have heard is one which describes the home as the place (I believe there is one definition in which the 'lares' are alluded to), the place 'unde non sit discessurus si nihal avocet; unde cum profectus est, peregrinari videtur.' I think that it is the best illustration, and I use that word rather than definition, to describe what I mean."
Therefore a person is said to have home in a country where he resides permanently without any intention of moving. On the other hand a person does not cease to have his permanent home in a country merely because he is temporarily residing elsewhere.
But the traditional concept of domicile has received criticism from reform agencies in England as well as in other countries which follow English common law. This disapprobation is based mainly on two grounds, which were also pointed out in 1954 (First Report of the Private International Law Committee, Cmnd 9068).
First point of contention relates to the extraordinary importance attached to the domicile of origin, particularly to the revival of domicile of origin when domicile of choice is abandoned without obtaining a new domicile of choice, and the fact that there is heavy burden of proof on the person who asserts the change in the domicile of origin which seems to be irrational and unjustified.
The second concerns with the difficulty attached in proving the intention required to acquire a domicile of choice. It also concerns with regard to the doubt about the standard of proof required to acquire a domicile of choice.
All this criticism was put forward because of the ambiguities created by the complex nature of the domicile law which not only results in time delay and money outlay but also leads to uncertain results.
This research paper will discuss these criticisms in detail, looking into its brief history and the law reform proposals recommended by the Private International Law Committee and the Bills which were presented to make amendments in these criticised concepts of the domicile of origin. These contentious aspects of domicile law will also be compared with corresponding facets of American Law where these flaws were removed by amending the law of domicile adequately.
1.2 Brief History of Domicile:
The concept of domicile in common law is derived from the Roman law and the usus modernus through the Canon law. According to a modern Canonist,
"The term domicilium is derived from domum colere, to foster or inhabit the home. Domicile is not any place of residence but a place of habitual residence."
At that time the ordinary man's Diocese had authority over him in the Consistory Court in England and a man's domicile in a Diocese was established by his habitual residence. The Bishop of the Diocese of the domicile had jurisdiction in religious causes and in England this included probate and matrimonial jurisdiction even before the Matrimonial Causes Act 1857 and the Court of Probate Act 1857. English statutes dealing with marriage characterise the place where a man dwells, of his dwelling place; and domicilium is a habitation or a dwelling.
Therefore domicile is a place of residence in a Diocese in Roman Canon law and in the English Canon law from which the English notion of domicile has evovled.
1.3 Importance of Domicile:
Domicile not only acts as a connecting factor but it also has an exclusively extended role. It can be used as a jurisdictional link which is a pre-requisite for assumption of jurisdiction by the forum or for recognition and assumption of a foreign court's jurisdiction. It also determines an individual's right to vote, his right to hold public office, his entitlement to support in respect of various needs such as ill-health or unemployment and his liability to various forms of taxation. Therefore there is no person without a domicile because it is necessary to connect a person with some legal system to regulate his legal relationships.
1.4 Principles Governing Law of Domicile:
There are five fundamental principles which govern the law of domicile.
First principle is that nobody shall be without a domicile. The law assigns a domicile of origin to every person at the time of his birth, i.e. to a legitimate child the domicile of the father, to an illegitimate child the domicile of the mother, and to a foundling the domicile of place where he is found. This domicile of origin continues until a new domicile i.e. domicile of choice is acquired.
Secondly, a person cannot have two domiciles at a time. Thirdly, domicile connects a person with a single system of territorial law but it does not necessarily signify a system that prescribes the same principles for all the classes of persons. As for instance in India different rules will apply to different categories of population according to their religion, race or caste.
Fourthly, there is presumption in favour of the continuance of an existing domicile. And the fifth and final rule is that the domicile of a person is to be determined according to the English and not in accordance with the foreign concept of domicile, subject to certain statutory exceptions.
2.1 Development of Domicile of Origin:
As mentioned earlier, domicile of origin is a domicile ascribed to a person when he is born. Lord Westbury remarked in Udny v Udny:
"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."
If a child is born after the death of the father or if an illegitimate child is later legitimated, in both cases, the domicile of origin will remain same as that of the mother. An adopted child probably acquires the domicile of origin of the adoptive parents as such a child is treated as if born in lawful wedlock. The domicile of origin is conferred on the basis of origin. There are exceptional cases like Re McKenzie, where domicile of origin of a child is determined on the basis of the place where he was found and not on the basis of his parents' domicile. In the mentioned above case the domicile of an illegitimate child was determined on the basis of the place where he was found because the domicile of his mother was unknown.
The children under 16 and mentally disable person acquire a domicile of dependence which changes with the change of their guardian. In later life, the child can acquire a domicile of choice after becoming independent and can also abandon it without acquiring a new one. At that stage the domicile of origin will revive.
The rules on the law of domicile had been laid down by the judges of the Victorian time and the law of the domicile of origin has gained strength with time despite being criticised. Domicile of origin is such a powerful concept that even if a person leaves his country of origin with an intention not to return back, he is still considered to be domiciled there until he obtains a new domicile of choice in another country. Therefore a person who has never even visited a particular country can have the domicile of origin of that place. In Grant v Grant a child was born in India but his domicile of origin was held to be English following his father's domicile of origin. It illustrates that domicile of origin is the hardest to lose among all the three types of domiciles.
Although the principle of domicile of origin was finally established in Udny v Udny, but it has come a long way since then and has carried on proving its strength and significance since then.
2.2) Tenacity and Revival of Domicile of Origin under English Law:
The concept of domicile of origin is well entrenched by the Victorian judges and it is argued that its rules have been quite satisfactory as reflecting social factors. One acquires it at the time of his birth and because of its strong tenacity it is hard to lose and it automatically revives once domicile of choice is lost without acquiring a new domicile of choice.
2.2.1 Tenacity of Domicile of Origin:
One of the very distinctive features of the domicile of origin is its tenacity and persistence. It is hard to lose as compared to other two kinds of domiciles which is obvious from the fact that it requires strong evidence to prove its loss where as it is less onerous to prove change of other types of domiciles.
It has proven to be more tenacious in a way that even if a person leaves his country of origin with an intention never to return back, his domicile of origin survives until he has acquired a domicile of choice.
In Bell v Kennedy, Bell had a Jamaican domicile of origin but after leaving Jamaica, he was uncertain whether to settle on Scotland or England. Therefore the House of Lords held that he had not lost his Jamaican domicile of origin.
The tenacity and persistence of domicile of origin implies that it returns as 'boomerang' during a person's lifetime and even after his death, for instance in succession matters. One of the remarkable cases in this regard is Poingdestre v Sherman, Re O'Keefe (Dec'd), where Mary O'Keefe was born in India, kept her British citizenship all her life, spent forty seven years of her life in Italy where she died. But the court held that she had an Irish domicile of origin at the time of her death although, the only connection between Mary and Ireland was her three weeks visit in Ireland and the fact that her father was born in Ennis, Co Clare. Despite the fact that her father had acquired a new domicile of choice but due to her failure to acquire a new domicile she was deemed to be domiciled in the place where her father was domiciled at the time of her birth. This case indicates that a person can retain the domicile of his origin even when he has no connection with the country of his origin.
a) Case Law:
The English courts have stressed on the tenacious character of domicile of origin since centuries which can be seen from the following cases.
There are many leading cases which illustrate the tenacity and continuance of domicile of origin. In Winans v Attorney-General, the House of Lords held that a man of American domicile of origin who spent his last thirty eight years of his life in England has not acquired a domicile of choice of England. He has retained his domicile of origin as he had hope to go back to America. He intended to return to Baltimore where he was setting up a business and also dreamed of acquiring a large house in order to live and work there for the whole scheme.
According to Lord Macnaghten:
"When he came to this country he was a sojourner and a stranger, and he was I think a sojourner and a stranger in it when he died."
Similarly in Ramsay v Liverpool Royal Infirmary, the House of Lords unanimously held that a man of Scottish origin who spent thirty six years of his life in Liverpool had not acquired the domicile of choice of England and retained his Scottish domicile of origin despite the fact that he was proud to be called as a Glasgow man, who refused to return to Scotland on several occasions, even on the death of his mother and also arranged his burial in Liverpool. The House of Lords denied the fact that his prolonged residence showed his intention to reside in England permanently. The length of residence of the propositus in Liverpool was considered to be extremely colourless by Lord Thankerton.
Likewise in IRC v Bullock, a man with a domicile of origin of Canada who lived in England for forty years and also married an English woman, had not acquired an English domicile of choice. The Court of Appeal held that his domicile of origin still sustained because he had the intention to go back to Nova Soctia if his wife predeceased him.
In a more recent case of Cyganik v Agulian, it was held by the Court of Appeal that a man who lived and worked in England for forty three years did not lose his domicile of origin of Cyprus. The court held that the standard of proof required to establish the abolition of domicile of origin is a heavy one and can not be inferred lightly which was lacking in this case.
It is obvious from all these cases starting from Udny v Udny until now that courts have attached great significance to the persistence of domicile of origin. The judges have always emphasised on the fact that domicile of origin is hard to lose.
b) Standard of Proof:
The courts had changing attitude towards the standard of proof required to establish the change in the domicile of origin. The presupposition against the recognition of a change of domicile in Winans v Attorney-General, Ramsay v Liverpool Royal Infirmary and IRC v Bullock is a strong one and a very high standard of proof has been demanded to establish such change. The burden of proof is remarkably heavy whenever a change of domicile of origin is alleged. But recently, the courts have changed their attitude towards the harshness of the proof and numerous judges have indicated that the burden of proof is not that heavy as it was used to be in the past.
In Henderson v Henderson and Cramer v Cramer it was said that a higher standard of proof was required to establish the change in domicile of origin. In Henderson v Henderson, Sir Jocelyn P has even gone beyond that and suggested that when change in domicile of origin is alleged, "the standard of proof goes beyond a mere balance of probabilities." But Scarman J in Re Fuld(No.3) agreed with the Court of Appeal in Buswell v IRC, rejecting the standard required in criminal cases.These few cases in the past illustrate that domicile of origin is not that tedious to lose and it is not that difficult to prove that change in one's domicile of origin.
2.2.2 Doctrine of Revival of Domicile of Origin:
Domicile of origin has a special characteristic that although it can be replaced by domicile of choice or dependence but it is never lost permanently rather it becomes dormant. Where domicile of choice is abandoned without acquisition of new domicile of choice, domicile of origin is revived. The concept of domicile is very vital because of this revival rule.
Domicile of origin remains in the background held in abeyance ever ready to come into action once a person has lost his domicile of choice. The reason is that in many cases the domicile of choice is difficult to ascertain because of complexity in proving the acquisition of domicile of choice which requires not only the intention to reside for indefinite period of time but also the physical presence. Thus if requirements essential to establish the domicile of choice are lacking, the domicile of origin revives.
The doctrine of revival of domicile of origin dates from the middle of the nineteenth century. The rule of revival of domicile of origin on abandonment of domicile of choice was illustrated in Udny v Udny by House of Lords in 1869.
Later in Tee v Tee the rule of revival was followed, where a man of English domicile of origin acquired a domicile of choice in United States of America.
Afterwards he went to work in Germany but did not acquire new domicile of choice there since at first his intention was to go back to States but then he decided to settle in England permanently. He commenced divorce proceedings in English courts while he was still in Germany. It was held by the court of law that he lost his American domicile while he was still in Germany and did not acquire a new one in Germany as he decided not to return back to America. Therefore his English domicile of origin revived automatically once he decided to in settle in England permanently.
The English courts have considered it to be an important concept as evident from the cases narrated supra. It can be inferred that automatic revival rule plays a vital role in filling the gap between the deliberate abandonment of one domicile of choice and the acquirment a new domicile of choice.
It can also clear that domicile of origin can not be abandoned completely. Even if it is replaced by a domicile of choice, it is not lost completely. In Harrison v Harrison, Harrison had a domicile of origin of England. When he was eighteen, his parents moved to South Australia leaving him in England. According to the rules of that time he acquired the domicile of dependence of South Australia. At the age of twenty he moved to New Zealand, got married there and decided to settle there permanently but shortly after he came back to England, where he turned twenty one. His wife initiated the divorce proceedings in England and it was held that English courts had jurisdiction to try the case because when Harrison turned twenty one, he had lost his domicile of dependence of South Australia. As he did not acquire any domicile of choice therefore his domicile of origin revived automatically.
It shows that domicile of origin not only manages to revive after the abandonment of domicile of choice but also when domicile of dependence finishes or where a domicile of choice is lacking, as it was illustrated in Harrison v Harrison.
Not only Harrison v Harrison, Tee v Tee or Udny v Udny, but also the earlier mentioned cases referring to the tenacity of the domicile of origin such as Ramsay v Liverpool Royal Infirmary, Winans v Attorney-General, IRC v Bullock and Cyganik v Agulian are also instances for the revival of domicile of origin. Neither the absence of Colonel Udny from Scotland,nor the travels of Mr Winans,were sufficient to displace the domicile of origin. Similarly, the disinterest of Mr Bowie and the indecisiveness of Mr Bell both led to same result. All these cases depict that domicile of origin had not been replaced by domicile of choice and it was still intact.
3.1 Reform Proposals of the Law of Domicile and Criticism:
In this chapter, Law reforms will be discussed which were proposed to amend the law of domicile. As mentioned earlier, the law of domicile is frequently criticised for its two aspects i.e. tenacity of domicile of origin and its principle of revival.
Among all the three types of domiciles, this is only the domicile of origin which has been subject to numerous law reform proposals since 1950's. In 1950 Lord Chancellor asked the Private International Committee for the desirable amendments in the law of domicile. The Committee published its report in 1954 in which it criticised domicile of origin for its undue importance attached to its rule of automatic revival on abandoning the domicile of choice without the acquisition of new one. These proposals were not only made in 1950's but were also taken twice to the parliament in the form of Domicile Bills of 1958 and 1959.
The Committee recommended that principle of revival of domicile of origin should be discarded. The recommendation was presented in the form of a Bill before the House of Lords in 1958. In the House of Lords, Lord Meston introduced a Bill regarding recommendations for discarding the revival principle of domicile of origin. Some debatable issues concerning taxation matters were raised at the Third Reading. Later the Bill was sent to the House of Commons but unfortunately it lapsed due to the end of parliamentary session. Another Bill was presented before the House of Lords in 1959. But it failed to become the law because if it was legislated then many American businessmen living in United Kingdom would have become prone to double taxation. This would have discouraged the foreign businessmen to invest in England and would affect the economy of the country.
Proposals for the reform of law of domicile and in particular the abandonment of the revival rule of the domicile of origin continued till the mid 1980's. Law Commission Working Paper 88 examined the desirability of substituting domicile with a different connecting factor. It proposed the possibility of replacing domicile by the concept of habitual residence or nationality. Nevertheless, it was concluded that domicile should continued to be used as a connecting factor.
The most significant proposal of the Law Commission was abolishing the doctrine of revival of domicile of origin, replacing it with the continuance of domicile of choice until a new one is acquired which is a much simpler rule as followed by many other states including United States of America. The overall result of this proposal was to make the domicile of origin redundant so that the tenacity given to the domicile of origin and its revival should not survive. But again these proposals faced failure in the parliament and did not become a part of legislation. The Law Commission also had to come to a decision concerning the issue whether the domicile of children should have domicile of dependence with respect to their parents or it should be depending on their habitual residence or the country with which they are most closely connected. It was proposed that a child should have a 'Dependent Domicile' of their parents but where the tie with the parents was weakened, he would have an independent domicile.
Three rules were suggested for ascertaining the domicile of children. Firstly, if the child lives with both parents, his domicile would be the same as that of the parents and it will change with the change of parents' domicile. But if domicile of both parents is not same then the child will take the domicile of the mother. Secondly, if the child is living with single parent, he will have the domicile of that parent and it will change accordingly. Thirdly, the child should be domiciled in a country with which he is more closely connected.
Again in 1987, the Law Commission compiled its report after receiving comments and views on 1985 report. This proposal was an important step towards the process of improving effectiveness and fairness of the English rules of the domicile of origin. If it was adopted, it would have abolished many difficulties which propositus has to face since it eradicates the tenacity and revival of domicile of origin and also it clear that the standard to prove the change of the domicile of origin is that of a civil standard.
3.2 Failure of Proposals:
Law Commission intended to make a change in the concept of tenacity of domicile of origin which was established in leading cases like Ramsay v Liverpool Royal Infirmary and Winans v Attorney-General. If these proposals were accepted, it would be completely against the views held in the cases mentioned above and other landmark cases establishing the persistence of domicile of origin.
The suspecting economic reasons were also play an important role in failure of these proposals. One of the instances of relevance of domicile in taxation law of England is the rule that emoluments received in England by a person not domiciled there from employment with a non resident are regarded as foreign emoluments. This rule struck sufficient terror into the hearts of foreign businessmen which forced them to oppose the Bills. But it was argued that by careful planning the problem of double taxation could be solved and foreign businessmen abroad can be assured of a tax-free existence in England.
Although these Law Reforms and Domicile Bills lapsed without achieving any of the desired result and did not gain much public support in United Kingdom but it influenced other countries like New Zealand and Australia which amended their laws in this area and abolished this rule of tenacity of domicile of origin replacing it with the continuance of domicile of choice until a new domicile is acquired under Domicile Act 1976, s11 (New Zealand) and the uniform Domicile Act of the Australian Jurisdiction, s6.
3.3 View of Lord Denning:
Lord Denning supported the rejection of the Reform Bills not on the basis of business interests from the outside world but he supported the judgments given in Winans v Attorney-Generaland Ramsay v Liverpool Royal Infirmary and expressed that these decisions were right and should not be changed.
4.1 Merits of the Concept of Tenacity and Revival of Domicile of Origin:
Domicile of origin is the reminder of the birth place of a person and always welcomes a man to his roots and ancestors. Although these rules have long been criticised and they are nowadays considered to be artificial and inadequate but unlike domicile of choice, the conditions of residence and intention are not attached with the domicile of origin.
a) Capability of dealing with absurd situations:
Although the concept of tenacity and revival seem to be inadequate by the critics but persistence of domicile of choice can also lead to absurd consequences. Revival rule of domicile of origin can deal with many odd situations. As for example, a family with English domicile of origin moves to Australia with an intention to settle there permanently, but after sometime they decided to shift from Australia to America for few years with an intention never to go back to Australia.
Therefore in such a situation family has not acquired a new domicile of choice of America unless they spend appreciable period of time there. In such circumstances, their English domicile of origin will revive which will fulfil its purpose in this case. But let's consider that domicile of choice will continued until they have acquired a new one then if any mishap happens with them on their way to America in the above example, the governing law will be that of Australia where they never wanted to set foot again. This seems to be a strange situation where legal system of a place will apply which a person has willingly abandoned. Here the concept of revival of domicile of origin seems to be more logical.
b) Thorough Concept:
Domicile of origin is a deep and thorough concept which helps the courts to establish a balanced and proper decision. It urges the court to see the whole life of propositus in order to determine if his domicile of origin has been displaced or not.
As for example, in Cyganik v Agulian, according to Mummery LJ:
"Positioned at the date of death...the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death."
c) Determination of Personal Law:
Domicile of origin provides personal law for resolving the legal issues of a person. As it remains constant and can never be abandoned completely, therefore its revival provides a personal law where domicile of choice or dependence is abolished. Harrison v Harrison and Bell v Kennedy are the valid examples discussed earlier where domicile of origin revived when domicile of dependence in the former case and domicile of choice in the latter case were abandoned.
4.2 Demerits of Tenacity and Revival Principle of Domicile of Origin:
Domicile of origin has some demerits due to which this concept has been criticised.
a) Redundant Concept:
The principle of revival of domicile of origin seems to be redundant and is not necessary according to the proposals of the Law Commission in their 1987 Report. This report proposed that domicile of origin should be abolished and person's domicile at birth should be determined by the country with which he has most close connections or he would be considered to have the domicile of the parents with whom he is residing at that time.
Furthermore, the person will acquire a domicile of choice after the age of 16 and this domicile of choice will continue till the time a new domicile of choice is acquired, incase the previous domicile of choice is abandoned.
If these proposals had not been rejected, there would be no need of domicile of origin and domicile of choice and dependence would be sufficient to fulfil the functions and rationale of domicile of origin. In fact the main purpose of the revival rule of domicile of origin is to cover the gap when a domicile of choice is abandoned without acquiring a new one.
b) Unsatisfactory Principles:
According to the principles enunciated in Udny v Udny, a legitimate child will take the domicile of father, an illegitimate child and a posthumous child will take the domicile of the mother.
These rules are quite unsatisfactory in certain circumstances. Primarily, legitimacy of a child cannot be determined unless a domicile has been established while on the other hand, a domicile cannot be established unless legitimacy of a child is ascertained. Consequently it is difficult to resolve this two-way debate rationally. The only way to resolve it might be to consider the child as legitimate if he is regarded so by the law of either parent's domicile.
Secondly, after the enactment of Domicile and Matrimonial Proceedings Act 1973 there is no logical basis for the rule that a legitimate child follows the domicile of the father. The domicile of a married woman is no longer dependent on her husband. Therefore, it's not logical that if the parents are living apart, the child will first take the domicile of origin of father then domicile of dependence of the parent with whom he is living. This creates an extremely complex legal situation because the courts first have to determine the domicile of origin of the child and then his domicile of dependence. It makes more sense if the child has the domicile of dependence with whom he is living.
c) Leads to Uncertain Results:
The doctrine of revival of domicile of origin can lead to some bizarre results. As for instance in Grant v Grant, X, with an English domicile of origin, went to India where he had a legitimate son Y. Y, while living in India had a legitimate son, Z, who also had a legitimate son named W while residing in India. X, Y and Z intended to go back to England at the age of sixty-five for retirement but they all died in India before reaching that age. Despite the fact that W never visited England, it was held that W's domicile of origin was English.
It is obvious from the facts of the case that even the propositus is not physically present in his country of origin, even then he is deemed to be domiciled there, which is a strong drawback of domicile of origin.
d) Obsolete Principles:
The principles of domicile of origin appear to be out dated in this modern era. The revival rule of domicile of origin assumes that if ever a person ceases to have a permanent home in his life, the most appropriate personal law applicable to him is the law of his original native home. However in this century where world is considered to be a global village and the people move from one place to another, it is more appropriate to associate a person with a country with which it is most closely connected. A person may not have any link with his country of origin.
Therefore it is not logical to apply the law of a state where he has never set his foot. As for example a person with English domicile of origin acquires a French domicile of choice and never comes back to England. Afterwards he abandons his French domicile of choice and decided to move to Australia. On his way to Australia, he met with an accident and died. According to English courts his domicile of origin had revived again when he abandoned his domicile of choice and did not acquire a new domicile of choice. Therefore the law of England will apply. This rule appears to be irrational and it is a strong demerit of domicile of origin to apply the law of a country which a person has willingly abandoned.
4.3 Domicile of Origin as an English tradition:
Apart from its merits or demerits, the emphasis on the domicile of origin has been an integral part of the English legal institutions for more than a century now. It is submitted that this emphasis reflects the policy of respecting the identity of a person. In general, a person's domicile of origin indicates the country to which that person instinctively belongs. This might also be one of the reasons of failure of the law reforms of domicile of origin. That is why the judges never wanted to make any changes in its principles and concept.
Thus it can be said now that although proposals for the reform of domicile of origin were made in the 1950's and carried being made till the 1980's, during this time the Domicile Bills of 1958 and 1959 were also in consideration but still the domicile of origin continues, therefore there must be some merit and use of the domicile of origin that the England is finding it so difficult to abandon.