Legal Classification of Domicile

By: Justine Joyce D. Chua

4D L-130328

1. Domicile of origin
2. Domicile by operation of law / Constructive domicile
3. Domicile of choice

1. Domicile of Origin
It is also known as domicilium originis. It is the domicile of a persons
parents at the time of his birth.

If father is dead or if a child is illegitimate, the domicile of mother will

govern. A legitimated child takes the mothers domicile at the time of birth,
but upon legitimation, his constructive domicile becomes that of the father.
In case of a foundling, the domicile is the country where he is found. An
adopted child has his domicile of origin in that of his natural parents, but
upon adoption takes the domicile of the adopting parents which becomes the
constructive domicile of the child.

2. Domicile by operation of law or Constructive domicile

It is also known as domicilium necesarium. Domicile established by law
after the birth in the case of persons under legal disability, regardless of their
intention or voluntary act.

Distinctions between constructive domicile and domicile of

origin

CONSTRUCTIVE DOMICILE DOMICILE OF ORIGIN

Assigned after birth Established at the moment of

birth
Assigned to persons under Assigned only to infants
legal disabilities
Changed from one place to One place
another

a. Minors
Philippine Law Family Code
Article 211 provides that both parents exercise joint authority over
the children, except where there is disagreement between them, in which
case the fathers authority prevails.
 The domicile of the child follows that of both parents. Change of
domicile during minority of the child, that of the child also changes by
operation of law.

American Conflict of Law

If the parents are separated, the domicile of the child is the
domicile of the parent with whom the child properly resides.

English Law
The childs domicile of origin follows that of the father and until
he reaches the age of 16, he is powerless to alter his domicile.

Primary rule
The domicile of the legitimate child automatically changes with any
change in that occurs in the domicile of the father.
As between a living father and a legitimate child, there is necessary
unity of domicile, even though they may reside in different countries.

Under Article 321 of the Civil Code, should the child, with the
parents consent, live independently from them, he shall be considered
as emancipated for all purposes relative to said property, and shall have
over it dominion, usufruct and administration.

If either parent of legitimate minor child dies, child follows the

domicile of surviving parent. Remarriage of the surviving parent does not
affect the parental authority over the child. In case of separated parents,
the child follows the domicile of the parent designated by the court. If the
child is illegitimate, domicile of mother will govern. However, if the child
is acknowledged and lives with the father, the child has the domicile of
the father.

Family Code
Article 69 - The husband and wife shall fix the family domicile. In case
of disagreement, the court shall decide.

Article 68 - The husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support.

A married woman may, for cause, leave her husband and establish a
domicile elsewhere.1 As a general rule, the domicile of the husband is the
domicile of the wife. The exceptions are the following:
1. There is a divorce proceeding and the husband has given cause for
divorce
2. when there is a separation of the parties by agreement

1 Williamson v. Osenton
 3. Cruel treatment
4. Other similar conduct on the part of the husband has produced a
permanent separation.2

Either spouse may acquire separate domicile whenever that person in

fact makes a home apart from the other spouse, regardless of motive or
propriety of conduct.

French Law
The wife in case of judicial separation, ceases to have as her legal
domicile the domicile of her husband.

Italian Law
Allows the wife a separate domicile if the spouses are judicially
separated, or the husband is placed under guardianship or transfers his
domicile to a foreign country.

German Law
It gives the wife the right to establish separate domicile in a foreign
country at a place to which the wife who is entitled to live separately may
have a domicile of her own, even if she has not yet applied for a judicial
separation.

3. Domicile of choice
It is the place voluntarily chosen by a person sui juris as his home and
to which, whenever he is absent, he has the intention of returning. It arises
when an existing domicile, whether or origin or not, is abandoned and
replaced by a new one.

Article 50 of the Civil Code provides that For the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons is the
place of their habitual residence.

Four essential requisites

1. Capacity
2. Freedom of choice
3. Residence or sometimes mere physical presence in the place where
domicile is alleged to have been acquired
4. Intention to make that place the home.

Continental civil law Anglo- American Law

2 Torlonia v. Torlonia
 Capacity and habitual Apart from capacity and
residence are sufficient to physical presence, there
establish a domicile and no must be an intention to
intention of permanency is make a new home
necessary permanently or for an
unlimited time

It is the residence plus intention to remain permanently, animus

samper manendi, that constitute domicile.

Section 18 of Second Restatement

To acquire domicile of choice in a place, a person must intend to make that
place his home for the time at least.

Conclusions on domicile
1. To acquire a fresh domicile, residence and intention must concur;
2. To retain an existing domicile, either residence and intention to remain
must be present;
3. To abandon a domicile, residence in the new place and intention to
abandon the old place must concur.

Notes:
1. The law of the state in which the deceased acquired his domicile at
the time of his death will control the succession and distribution of his
personal estate under the Anglo-American Law.3
Two thing must concur:
1. Fact of residence
2. Intention to remain
2. Length of the residence and failure to select a definite city or town in
the state as the place of residence are immaterial provided that the
other elements are present.4
3. The primary intention required for the acquisition of a domicile of
choice is an intention to make a home rather than an intention to
acquire a domicile.
4. As a general rule, the motive or reason prompting a person to make a
given place his home is immaterial.
5. The fact that physical presence in a place is for an illegal or immoral
purpose should have no effect on the acquisition of domicile except as
the purpose of the presence may indicate that the required domiciliary
intention is not present.

3 White v. Tennant
4 Winans v. Winans
 What evidence is necessary to prove intention?
Every conceivable event and incident in a mans life is relevant and an
admissible indication of his state of mind; his aspirations, whims, amours,
prejudices, health, religion, and financial expectations.

Case Digests
PEDRO GALLEGO, petitioner, vs. VICENTE VERRA, respondent.
No. 48641. November 24, 1941
OZAETA, J.

FACTS:
Pedro Gallego is a native of Abuyog, Leyte. He was employed as a school teacher in
the municipality of Catarman, Samar, as well as in the nearby municipalities in the
province of Leyte, and also in Agusan. In 1937 he resigned as a school teacher of
Abuyog, Leyte, and presented his candidacy for municipal mayor of his home town,
but was defeated. After his defeat in that election, he went to Mindanao in search of
a job. He proceeded to the sitio of Kaato-an, municipality of Malaybalay, Bukidnon,
whereat he arrived on June 20, 1938, and immedately found employment as
nurseryman in the chinchona plantation of the Bureau of Forestry. He stayed in the
chinchona plantation until he resigned in September, 1940. But during the period of
his stay there, his wife and children remained in Abuyog, and he visited them in the
month of August of the years 1938, 1939, and 1940. Although the Government
offered him a free house in the chinchona plantation, he never took his family there.
Neither did he avail himself of the offer of the Government of a parcel of ten
hectares of land within the reservation of the chinchona plantation. He and his wife
own real property in Abuyog, part of which he acquired during his stay in
Malaybalay.

Nevertheless, on October 1, 1938 he registered himself as an elector in precinct No.

14 of Lantapan, municipality of Malaybalay, Bukidnon, and voted there in the
election for assemblymen held in December, 1938. In his voter's affidavit he did not
fill the blank space corresponding to the length of time he had resided in
Malaybalay. On January 20, 1940, he obtained and paid for his residence certificate
from the municipal treasurer of Malaybalay, in which certificate it was stated that he
had resided in said municipality for one year and a half.

Petitioner's election to the office of municipal mayor of Abuyog, Leyte, in the

general elections of December, 1940 was declared illegal and void on the ground
that he did not have the residence qualification, and ordered that he be ousted from
said office.

ISSUE:
Whether or not Pedro Gallego had been a resident of Abuyog for at least one year
prior to December 10, 1940.

HELD:
YES. The term "residence" as used in the election law is synonymous with
"domicile," which imports not only intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention.
In order to acquire a domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. In other words, there must be an animus non rever-tendi
and an animus manendi
The Court believe that Pedro Gallego did not reside in Malaybalay with the intention
of remaining there indefinitely and of not returning to Abuyog. He is a native of
Abuyog. Notwithstanding his periodic absences from there previous to 1937, when
he was employed as teacher in Samar, Agusan, and other municipalities of Leyte,
he always returned there. In the year 1937 he resigned as a school teacher and
presented his candidacy for the office of mayor of said municipality. His departure
therefrom after his defeat in that election was temporary and only for the purpose
of looking for employment to make up for the financial drawback he had suffered as
a result of his defeat at the polls. After he had found employment in Malaybalay, he
did not take his wife and children thereto notwithstanding the offer of a free house
by the Government. He bought a piece of land in Abuyog and did not avail himself
of the offer of the Government of ten hectares of land within the chinchona
reservation in Malaybalay, where he worked as a nurseryman. During the short
period of about two years he stayed in Malaybalay as a government employee, he
visited his home town and his family no less than three times notwithstanding the
great distance between the two places.

Petitioner is a native of Abuyog, had run for the same office of municipal mayor of
said town in the election preceding the one in question, had only been absent
therefrom for about two years without losing contact with his townspeople and
without the intention of remaining and residing indefinitely in the place of his
employment; and he was elected with an overwhelming majority of nearly 800
votes in a third-class municipality. These considerations we cannot disregard
without doing violence to the will of the people of said town.
IN THE MATTER OF THE ADOPTION OF THE MINOR NORMA LEE CABER.
RICARDO R. CARABALLO, petitioner- appellee, vs. REPUBLIC OF THE
PHILIPPINES, opponent- appellant.
No. L-15080. April 25, 1962.
PADILLA, J.

FACTS:
Ricardo R. Caraballo, an American citizen enlisted in the United States Air Force as
staff sergeant detailed in Clark Field, Angeles, Pampanga. They want to adopt as his
child Norma Lee Caber, a five-day old natural daughter of Mercedes J. Caber
begotten by an unknown father, who gave her consent to the adoption in a sworn
statement. The Provincial and Assistant Provincial Fiscal of Pampanga moved for the
dismissal of the petition for adoption on the ground that it states no cause of action
and that the petitioner, being a non-resident alien, is not qualified to adopt.

ISSUE:
Whether under the law the petitioner is a person qualified to adopt.

HELD:
NO. A person is deemed a resident of a place in a country or state where he has his
abode and lives there permanently. It is a place chosen by him freely and
voluntarily, although he may later on change his mind and live elsewhere. A place in
a country or state where he lives and stays permanently and to which he intends to
return after a temporary absence, no matter how long, is his domicile. A foreigner
who has a business or interest therein or property located in a country or state and
goes and stays in that country or state to look after his business or property or to
check up the manner or way his business or property is being conducted or run by
his manager but does not intend to remain in the country indefinitely cannot be
deemed a resident of such country. Actual or physical presence or stay of a person
in a place, not of his free and voluntary choice and without intent to remain there
indefinitely, does not make him a resident of the place.

Ricardo R. Caraballo, the petitioner, an American citizen who now lives in Clark
Field, municipality of Angeles, province of Pampanga, Republic of the Philippines,
because of his assignment as staff sergeant in the United States Air Forcehis stay
in the Philippines then being temporaryis a non-resident alien who, pursuant to
clause 4 of the above quoted article of the Civil Code. is disqualified to adopt a child
in the Philippines. It cannot be gainsaid that an adopted minor may be removed
from the country by the adopter, who is not a resident of the Philippines, and placed
beyond the reach and protection of the country of his birth.

ANICETO G. SALUDO, JR., petitioner, vs. AMERICAN EXPRESS

INTERNATIONAL, INC., and/or IAN T. FISH and DOMINIC MASCRINAS,
respondents.
G.R. No. 159507. April 19, 2006.
CALLEJO, SR., J.

FACTS:
Aniceto G. Saludo, Jr. filed a complaint for damages against the American Express
International, Inc. (AMEX) with the RTC of Maasin City, Southern Leyte. The
complaints cause of action stemmed from the alleged wrongful dishonor of
petitioner Saludos AMEX credit card and the supplementary card issued to his
daughter. In their answer, respondents specifically denied the allegations in the
complaint. Further, they raised the affirmative defenses of lack of cause of action
and improper venue because none of the parties was a resident of Leyte. Petitioner
Saludo was not allegedly a resident thereof as evidenced by the fact that his
community tax certificate, which was presented when he executed the complaints
verification and certification of non-forum shopping, was issued at Pasay City. To
buttress their contention, respondents pointed out that petitioner Saludos
complaint was prepared in Pasay City and signed by a lawyer of the said city.
Respondents prayed for the dismissal of the complaint a quo. Petitioner asserted
that any allegation refuting his residency in Southern Leyte was baseless and
unfounded considering that he was the congressman of the lone district thereof at
the time of the filing of his complaint. As a member of Congress, he possessed all
the qualifications prescribed by the Constitution including that of being a resident of
his district. He was also a member of the Integrated Bar of the Philippines-Southern
Leyte Chapter, and has been such ever since his admission to the Bar. His
community tax certificate was issued at Pasay City only because he has an office
thereat and the office messenger obtained the same in the said city. In any event,
the community tax certificate is not determinative of ones residence

ISSUE:
Whether or not petitioner Saludo, was a resident of Southern Leyte at the time of
filing of the complaint.

HELD:
YES. For purposes of election law, the term residence is synonymous with
domicile, It can be readily gleaned that the definition of residence for purposes
of election law is more stringent in that it is equated with the term domicile.
Hence, for the said purpose, the term residence imports not only an intention to
reside in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. The place where a party actually or
constructively has a permanent home, where he, no matter where he may be found
at any given time, eventually intends to return and remain, i.e., his domicile, is that
to which the Constitution refers when it speaks of residence for the purposes of
election law.

On the other hand, for purposes of venue, the less technical definition of
residence is adopted. Thus, it is understood to mean as the personal, actual or
physical habitation of a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat. In this popular sense, the term
means merely residence, that is, personal residence, not legal residence or
domicile. Residence simply requires bodily presence as an inhabitant in a given
place, while domicile requires bodily presence in that place and also an intention to
make it ones domicile.

A man may have a residence in one place and a domicile in another. Residence is
not domicile, but domicile is residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for one and the same purpose at
any time, but he may have numerous places of residence. His place of residence
generally is his place of domicile, but is not by any means, necessarily so since no
length of residence without intention of remaining will constitute domicile.

It is, likewise, undeniable that the term domicile is not exactly synonymous in legal
contemplation with the term residence, for it is an established principle in Conflict of
Laws that domicile refers to the relatively more permanent abode of a person while
residence applies to a temporary stay of a person in a given place. In fact, this
distinction is very well emphasized in those cases where the Domiciliary Theory
must necessarily supplant the Nationality Theory in cases involving stateless
persons.

Since petitioner Saludo, as congressman or the lone representative of the district of

Southern Leyte, had his residence (or domicile) therein as the term is construed in
relation to election laws, necessarily, he is also deemed to have had his residence
therein for purposes of venue for filing personal actions. Put in another manner,
Southern Leyte, as the domicile of petitioner Saludo, was also his residence, as the
term is understood in its popular sense. This is because residence is not domicile,
but domicile is residence coupled with the intention to remain for an unlimited
time.

The fact then that petitioner Saludos community tax certificate was issued at Pasay
City is of no moment because granting arguendo that he could be considered a
resident therein, the same does not preclude his having a residence in Southern
Leyte for purposes of venue. A man can have but one domicile for one and the
same purpose at any time, but he may have numerous places of residence.