INTRODUCTION

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).
LORD CHELMFORD in WAICKER V HUME[1] in defining domicile said,

That place is properly the domicile of a person in which he has voluntarily fixed the habitation of
himself and his family, not for a mere special or temporary purpose but with a present intention of
making it his permanent home...

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.

Chapter II

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

Domicile of choice

An adult can acquire a domicile of choice only by a combination and coincidence of:

(a) residence in a country; and

(b) an intention to make his home in that country permanently or indefinitely.

Every independent person can acquire a domicile of choice by the jurisdiction of residence and intention

of permanent or indefinite residence but not otherwise. According to the DOMICILE AND

MATRIMONIAL PROCEEDINGS ACT, every person in the world who is over the age of sixteen and is not

mentally incapable is able to acquire a domicile of choice by residing in one country with the present

intention of making it his permanent home. Thus there are two important requirements, namely; fact

and intention. They are normally referred to as factum and animus. Factum is fact or residence, while

animus is intention. A person can therefore abandon a domicile of choice in a jurisdiction by ceasing to

reside there (fact) and by ceasing to reside there either permanently or indefinitely (intention). That is to

say leaving animus non revertendi

Residence for the purpose of domicile has a very wide meaning and its function is to a great extent

evidential in character thus, no particular length of residence is required. But long residence in a country

will a raise the inference that a person intended to remain there and this may be so strong as to be

impossible to rebut. However, long period of absence does not necessarily destroy a domicile of choice

and may not do so even if there is indecision about a possible return. Thus in RE LLOYDS EVANS[5], a

Belgian domiciliary who had fled to England died before he had decided to return to Belgium or

emigrate to Australia. He was held to be domiciled in Belgium.

The requirement of intent is more exacting and important in domicile. In WINANS V ATTORNEY

GENERAL[6], Winans had lived a remarkable life in the manner of the heroes of the Victorian age. Born

in Baltimore, he spent much of his life in Europe and lived in England for the last 37 years of his life. He

built railways in Russia and helped that country against England in the Crimean war by making gunboats.

He had an obsession to develop his Baltimore property into a seaport, equip it with ships of his own
special design and capture the worlds carrying trade for the United States at the same time putting an

end to the Rule Brittanica. His hatred of Britain eventually convinced the House of Lords that despite his

long residence there, he lacked the intention to acquire a domicile in England. A similar decision was

held in the case of RAMSAY V LIVERPOOL ROYAL INFIRMARY[7].

However it has been submitted that the two cases are extremely unsatisfactory as they put too much

emphasis on the desires, however unrealistic, of the person in question rather than what he proposed

to do.

In contrast to the case above, the case of WHITE V TENANT[8], where a family were moving house and

this involved crossing a state line. Having put their belongings in the new house the family returned to

their old state to spend the night with family as the new house was not yet ready to inhabit. When the

father died during the night the court decided that he died domiciled in his new state not the old one.

Thus, once it can be established that the intention to make the country of residence the permanent

home exists, the fact that the residence was not freely chosen and could be ended by compulsory

relation is irrelevant.

DOMICILE OF DEPENDENCE

This is also known as domicile by operation of law. This type of domicile concerns dependent persons.

The domicile of a dependent person is the same as and changes (if at all) with the domicile of the person
on whom he is, as regards his domicile, legally dependent. Until he reaches the age of maturity (which

maybe the age of sixteen[9]), a legitimate childs domicile depends on and changes with the domicile

unless, both parents being alive, the child has his home with his mother and no home with his father. An

illegitimate child or a legitimate child whose parents are both living but who lives wholly with his mother

has a dependent domicile coincident to that of his mothers current domicile. A child whose father is

dead takes his domicile of dependence from his mother however, unless he has a home with her, his

domicile of dependence does not automatically change with hers. A child whose parents are dead

should be domiciled where the person on whom he is dependent is domiciled (however there is no

authority for this[10]). At birth, a child receives two domiciles, origin and dependence, which are

initially, in the vast majority of cases, the same. The domicile of origin will be overlaid by the domicile of

dependence. While the domicile of origin remains constant throughout life, the domicile of dependency

changes with the domicile of the person on whom the child is domiciliary dependent. The idea is that, as

far as possible, there should be unity of domicile between the child and its parents.

Married Women

Until 1 January 1974, there were three categories of dependent persons; children, married women and

mentally disordered persons. Married women ceased to be dependent persons on 1 January 1974 by

virtue of section 1(1) of Domicile and Matrimonial proceedings act 1973. This act however, did not

change the position of women married before this date because the act was not retroactive.
CONCLUSION

Domicile is the most significant connecting factor in conflict of laws. It has a dominating role in family

and matrimonial property law and a role in other areas such as capacity of persons to make contracts. It

plays a part also in the law of taxation.

Domicile is an idea of law

Domicile of origin cannot be lost as such. Everyone is born with a domicile of origin, which remains (if

only in abeyance). Even when a domicile of choice is acquired, the domicile of origin will remain as a

resource to fill up any gap when a domicile of choice is abandoned.

A domicile of choice can be abandoned by a person when he or she ceases to reside in a country and

ceases to intend to reside there permanently or indefinitely. When a domicile of choice is abandoned

either a new domicile of choice is acquired, or the domicile of origin revives by operation of law.

It should be noted that the most important factor in acquiring a domicile of choice is intention (animus).

The act of moving may occur but most times it does not necessarily mean that the person intends to

move.

CORPORATE DOMICILE.-Whether a fictitious body can have either residence or domicile is

questionable, for it requires considerable mental exertion to visualize so cloudy an entity

and'permanently locate it in one place.1 Admitting, however, that there are theoretical objections, it is

often important to do so inorder to fix the situs of its rights and liabilities.2 Being a mere creature of the

law, the corporation traces its domicile of origin to the jurisdiction which has given it birth,3 and a
different domicile cannot be afterwards acquired,since corporate existence is, by the terms of its

creation, limited to the territory of the creating sovereignty.4 The fact that the corpo- ration is thus

narrowly confined would seem in theory to prevent even its presence in any other jurisdiction, and the

acquisition of foreign residence would, therefore, be impossible. The courtesy of other juris- dictions,

however, permits the projection of the corporate entity beyond the bounds of its origin in order to

conduct operations in foreign States practically as an individual,5 but subject to any limitations which

the foreign jurisdiction may impose.6 It is only natural, then, for the courts to assume jurisdiction and

give the corporate entity a status analogous to residence.7 The location of this residence among the

sub-divisions of the State depends in the first instance on the will of the domestic sovereign, for there is

no reason why it could not re- quire the selection of one definite residence as a condition of the right to

do business in the State.8 If no such requirement is made, it would seem that a foreign corporation

should be governed by the rules applica- ble to a domestic corporation, which is usually considered

residentwherever it has an established office or place for the transaction of

business,9 although some cases limit its residence to the place where the principal office is located.10

In the absence of any stipulation imposed by the creating sover- eignty, the location of the domicile of a

domestic corporation is deter- mined by the considerations applicable to individuals. The corpora- tion

can choose any domicile which it desires,11 and can change it at any time by properly effecting its

purpose."2 The difficulty in every case is.to ascertain corporate intention and to determine which act

portrays this design. Various rules have been formulated, locating corporate domicile at.the place (1)

where its directors meet and its financial operations are conducted,'3 (2) where its principal office is

situated,14 (3) where its general management is conducted,15 or (4) where its business operations are

carried on.l' Any choice between these rules is at best arbitrary, but the most logical course is to

domicile the corporation at the place from which effective control is exercised. While its agents may

carry on operations elsewhere surely, the corporate entity is present represented in tangible form
bythe persons who control its affairs.l7 It is, however, entirely competent for the creating State to fix

local domicile as one of the terms of the right to exist.18 Whether it has in fact done so is often open to

inquiry. If the business to be con- ducted is of a purely local nature the legislative intention to assign

domicile to a certain locality is either expressed or clearly implied.'l Where on the other hand the

business is of a general character the legislative intention is not so easily discovered. An instance is pre-

sented by a recent case, Inter-Southern Life Ins. Co. v. Milliken (Ky. 1912) 149 S. W. 875. A corporation,

as required by the enabling act, in its charter designated an unincorporated village near Louis-

ville as its domicile. Directors' meetings were nominally held there, but the entire corporate business

was conducted in Louisville. The court admitted that the charter specification was conclusive if in good

faith,20 but held that inasmuch as it was used merely to evade taxation, it was the real intention of the

corporation to be domiciled at Louis- ville. In such a situation there are two possible interpretations of

the statute requiring the designation of domicile in the charter. First, if the legislature meant to make

corporate domicile certain and specific, it seems inevitable that the designation by the corporation is

conclu- sive even when used to evade taxation.2l Second, if the legislature were seeking a true and bona

fide designation of corporate domicile, the courts should go behind the charter and ascertain the real

domicile, disregarding a mere evasive statement in the charter.22 The second view, followed by the

principal case, is certainly more reasonable, and secures justice in every case while defeating an

inequitable use of the statute.