Domicile (law)


Domicile (law)

In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently.

Traditionally many common law jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws and would, for example, only recognize a divorce conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted.

Contents

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 nation 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 ( not based on the immigration status,but based on the social & moral status ), 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]

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.

U.S. law

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 individual parties (that is, natural persons) to invoke the diversity jurisdiction of a United States district court (a federal trial court), all the plaintiffs must have a different state of domicile from all the defendants (so-called "complete diversity").[5]

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 and Wales (governed by the Domicile and Matrimonial Proceedings Act 1973) and Scotland (governed by Section 22 Family Law (Scotland) Act 2006). [6]

See also

References

  1. ^ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-025.
  2. ^ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-033.
  3. ^ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-033 and 6R-074.
  4. ^ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-078.
  5. ^ Sun Printing & Publishing Association v. Edwards, 194 U.S. 377 (1904).
  6. ^ Taxation of Non-Residents and Foreign Domiciliaries 10th ed 2011, James Kessler QC (for UK law).

External links

  1. Taxation of Non-Residents and Foreign Domiciliaries in UK law
  2. - HM Revenue and Customs (Official Website)

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Look at other dictionaries:

  • domicile — do·mi·cile 1 / dä mə ˌsīl, dō / n [Latin domicilium dwelling place, home] 1: the place where an individual has a fixed and permanent home for legal purposes – called also legal residence; 2: the place where an organization (as a corporation) is… …   Law dictionary

  • Domicile — In architecture, a general term for a place of residence or permanent residence in legal terms Domicile (astrology), the zodiac sign over which a planet has rulership Domicile (law), the status or attribution of being a permanent resident in a… …   Wikipedia

  • Domicile — • The canon law has no independent and original theory of domicile; both the canon law and all modern civil codes borrowed this theory from the Roman law; the canon law, however, extended and perfected the Roman theory by adding thereto that of… …   Catholic encyclopedia

  • domicile of choice — UK US noun [C or U] (plural domiciles of choice) LAW ► the country in which someone decides to live rather than the country in which they were born: »A domicile of choice is lost once an individual ceases to be present in the host country and the …   Financial and business terms

  • domicile of origin — UK US noun [C or U] (plural domiciles of origin) LAW ► the country in which someone was born: »Individuals acquire a domicile of origin at birth. → Compare DOMICILE OF CHOICE(Cf. ↑domicile of choice) …   Financial and business terms

  • domicile — [däm′ə sīl΄, däm′əsil; ] also [, dō′mə īl, dō′məsil] n. [ME domicelle < OFr domicile < L domicilium, a dwelling, home < domus: see DOME] 1. a customary dwelling place; home; residence 2. Law one s fixed place of dwelling, where one… …   English World dictionary

  • domicile — ► NOUN formal or Law 1) the country in which a person has permanent residence. 2) chiefly N. Amer. a person s home. ► VERB (be domiciled) formal or Law 1) treat a specified country as a permanent home. 2) …   English terms dictionary

  • Domicile — Dom i*cile, n. [L. domicilium; domus house + (prob.) root of celare to conceal: cf. F. domicile. See {Dome}, and {Conceal}.] 1. An abode or mansion; a place of permanent residence, either of an individual or a family. [1913 Webster] 2. (Law) A… …   The Collaborative International Dictionary of English

  • domicile — /dom euh suyl , seuhl, doh meuh /, n., v., domiciled, domiciling. n. 1. a place of residence; abode; house or home. 2. Law. a permanent legal residence. v.t. 3. to establish in a domicile. Also, domicil. [1470 80; < MF < L domicilium, perh. equiv …   Universalium

  • DOMICILE — Definitions In contrast to residence, which is the place of physical abode, domicile is 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… …   Encyclopedia of Judaism


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