When the court is faced with a range
of choices as to the appropriate law which should apply to the dispute which
involves foreign elements seeks guidance from connecting factors. Connecting factors
are essentials in assisting the court in the choice of law process. Connecting factors
include domicile,
nationality, and residence.
I recommend you to read this article
until the end so as you can fully understand its gist.
The focus here will be on domicile as a
connecting factor. I will give a general overview of what domicile is all about in private international law
realm, I will
discuss forms of domicile and how is obtained, I will explain factors that
are taken into account in establishing domicile of a person and I will state
the relationship between domicile and other connecting factors.
1. Meaning of Domicile
Domicile simply means a permanent home of a person.
Technically Domicile
maybe defined as the legal system within whose jurisdiction an individual
makes his or her home, intending to remain there permanently.
Domicile is a connecting factor
which links a person with a particular legal system, and the law of his
domicile is his personal law. That law determines, in principle, whether a man
or woman has the legal capacity to marry, and how the estate of a deceased person
is to be distributed.
If a married person is domiciled
in England, the English courts have jurisdiction to dissolve or annul his or
her marriage.
If a married person is domiciled
in, say, France, then a divorce decree granted by the French courts to or
against that person will be recognized in England.
Five important things on domicile which can be drawn from the above meaning.
- First domicile is a legal concept.
- Second domicile is connecting factors which connect a person to a legal system
- Third the law of domicile operates on a chronological basis.
- Forth a tentative definition is that domicile is a permanent home.
- Lastly, most people’s domicile is regarded as the place where has permanently resides.
1.1 General rules regarding domicile
These
general principles were first clearly enunciated by Lord Westbury in Udny v.
Udny in (1869) 1 LR Sc.
& Div. 441 HL.
1.1.1 Rule No. 1: No Person Can Be Without a Domicile
A
domicile is attributed to a person by law as his domicile of origin or of
dependence. He/she will keep such a domicile unless and until he attains
another by choice, and if he abandons a domicile of choice his domicile of origin
will revive and be his domicile unless and until he acquires another domicile
of choice. This inability of anyone to be without a domicile makes domicile
preferable as a connecting factor for determining the personal law to any other,
since a person can be without a residence, a home or a nationality but not in
case of domicile.
In
Mark
v Mark [2005] UKHL 42 at 37
it was illustrated that a person may at least
have a domicile of origin at his birth, if he is a legitimate child, the
domicile of his father, if he is an illegitimate child, the domicile of his mother,
if he is foundling, the place where he is found, this domicile prevails until a
new domicile has been acquired. If a person leaves the country of his origin
with an undoubted intention of never returning to it again, nevertheless his
domicile of origin adheres to him until he actually settles with the requisite intention in some other country.
1.1.2 Rule No. 2: A
Person Cannot Have Two Domiciles
Justification for this rule can be
found in Mark’s case as cited above. The aim of the law is to have a definite legal system which can apply to a person, therefore, is impracticable
to allow a person to possess more than on domicile.
1.1.3 Rule No. 3: Domicile Connote Connection
Domicile
connote connection with a single system of territorial law does not necessarily
connote a system that prescribes identical rules for all classes of persons it
may have different rules applying for different classes of persons within one
territorial law.
1.1.4 Rule No. 4: Continuance
of an Existing Domicile
There
is a presumption in favor of the continuance of an existing domicile. Therefore
the burden of proving a change lies in all cases on those who allege that a
change has occurred. The standard of proof is that which is used in civil actions-on
balance of probabilities.
1.1.5 Rule No. 5:
Domicile of A Person Will Be Determined According To Local Law
The
domicile of a person will be determined according to local law and not foreign
concept of domicile. This was insisted in the case of Lawrence vs. Lawrence (1985) that subject to the statutory exceptions, the
domicile of a person is to be determined according to the local law and not the
foreign concept of domicile.
2. Forms/Type of Domicile and How it is Establish
There
are three forms or type of domicile, which include domicile of choice, origin
and domicile of domicile.
2.1 Domicile of Origin
This
is a form of domicile which is acquired by birth. In most cases, a child acquires
a domicile of his father. Domicile of origin depends on the domicile of one parent
at the time of birth, and not where a person is born nor where parents were residing
at the time of birth. This attributed domicile is indelible and remains with the
person throughout his life, even if for much of the time or, indeed, always, it
is overlaid by another sort of domicile. It is very difficult for a person to lose
this kind of domicile.
Example in a case of Winans v Attorney General, [1904] AC 287
in which William Winans who born in Baltimore USA in 1823 and live there and in
1859, he went to England and lived there all his life at various places until
his death in 1896, he lives in England for almost 37 years, He built railways
in Russia and helped that country in the Crimean War (1853–56) by constructing
gunboats. He retained plans for his properties in Baltimore. He disliked
England and appeared to be without friends. The evidence indicated that his sole remaining ambition was to enable the USA to acquire world maritime
supremacy at the expense of England. On his death in 1896, the question arose
as to his place of domicile, in judgment Lord
Macnaghten emphasized that domicile of origin is more enduring than
domicile of choice.
Domicile of origin as a tendency of
revival in a case where one loss other types of domicile the domicile of choice
or dependency, it never totally lost, if one acquires new domicile, we may say
it performs a gap-filling function if a person appears to be without a domicile
then domicile of origin revives, this was clearly indicated by Lord Westbury word
in Udny v Udny where he said that;
“as
the domicile of origin is the creature of law, and independent of the will of
the party, it would be inconsistent with the principles, of which it is by law
created and ascribed, to suppose that it is capable of being by the act of the
party entirely obliterated and extinguished”
In the same case, it was indicated
that the domicile of origin of a child born under wedlock (legitimate) is
depend with a domicile of his father, and the domicile of the mother if
illegitimate.
From the discussion
above it follows that the factor used to determine the domicile of origin is
depend with the domicile of his parent, father if the person is illegitimate
child and mother if the person is an illegitimate child. The domiciles of
parent or guardian is one who takes into consideration in determining the
domicile of origin.
But this domicile may be abandon
or
lost by the acquisition of a domicile of choice, as what Colonel Udny do to his origin domicile of Scotland
after abandoning it and acquire England Domicile.
2.2 Domicile of choice
This is form or type of domicile in which a person after
attain the age of majority will have the right to acquire new domicile in
substitution for that which he has at present possessed. For instance, If S is a
domicile of Malawi and later on has an intention to live in Zambia and then
later on, have a residence in Zambia without the intention of returning back to
Malawi, then S will acquire the domicile of Zambia as her domicile of choice.
2.2.1 Factors Considered In Establishing Domicile of Choice
There are two requisites for the acquisition
of a fresh domicile(domicile of choice)thus residence (factum) and intention(animus)
it is of at most importance that the person in question established his
residence in a certain country with the intention of remaining there
permanently.
2.2.1.1.Residence (factum)
This
refers to physical presence in a certain country in which a person intends to be a
resident. Long residence and short does not prove or negates domicile. However
long residence may go some way to demonstrating the factum but it will still be
necessary to show the animus. As it was provided in the case of Ramsay v Liverpool Royal Infirmary where the court declared that, the deceased had not acquired domicile even after living
Liverpool for thirty-six years. Also the same was stated in several other cases
such as Winans v AG and Jopp v Wood where parties in both cases
had stayed in their places for a long time but failed to acquire domicile.
2.2.1.2 An intention
(animus)
An
intention to reside (animus) to continue living there permanently or for an
unlimited period of time, to decide if a person has the intention to take a place
as his/her domicile, the conduct of the person and the surrounding
circumstances are taken into consideration. The intention of the person must
not be subject to ant conditions such as an intention to reside for a definite
period, for example, a six months and then leave or an intention to reside in a
territory until a definite purpose is achieved, for example, to leave when a particular
project is completed such as termination of his/her employment.
Such
conditional animus is not sufficient to establish domicile as it was provided
in the case of Cramer v Cramer, where
a woman with a French domicile of origin went to England intending to remain
there and marry an Englishman who at that time was married. Her intention to
remain was conditional on both herself and her proposed husband obtaining
divorces and on their relationship continuing but since such did not happen she
failed to acquire domicile.
These
factors have to operate together in order to establish domicile, as such was
stated in the case of Winans v AG, where it was provided that though the deceased
had stayed in Britain all his life the court had established that he had not
acquired domicile of Britain since it was proved that he lacked intention due
to his hatred of Britain and after examination in detail of his life. Also in
the case of Jopp v Wood, where it was
held that the deceased had not acquired a domicile of India even after living
therefor twenty-five years since he had the intention of one day to return to
his land of birth. Hence the duration of the residence will not be an essential
factor in establishing domicile rather should be supported by the intention of the
propositus.
Hence
in most cases emphasis is upon the animus rather than the duration of
residence. Thus even a short period can be sufficient if there exists an
intention to reside. The fact that a brief residence may be sufficient to
establish a new domicile is important if domicile has to be established shortly
after an individual has arrived in a new country in which he intends to live
permanently.
For example,
in the case of White v Tennant, where
a family was moving home. The man abandoned his home in State A and moved
about half a mile to his new home in State B. Having put their belongings in
the new house, the family returned to their old State as the new house was not
ready to inhabit. When the man died during the night the court decided that he
died domiciled in State B and not in State A since residence and intention were
proven unequivocally.
Hence
an individual’s presence in the state and intention to make a home suffices to
establish a domicile even if no particular locality is chosen by him/her for
home, it may be a rented house or a hotel all will be sufficient to establish
domicile. It is necessary to produce unequivocal evidence of both the facts of
residence and the intention to permanently reside.
2.3 Domicile of Dependency
This
is another form or type of domicile, under this domicile a person domicile will
be depend on a person to whom he depends, this domicile conferred a domicile to
the legal dependant, this is usually done by the operation of law. It covers
those people who are incapable of forming a requisite intention to acquire
domicile of choice like young children and mentally incapacity, before the
Domicile and Matrimonial Proceedings Act 1973 in England marriage women were
also form a part of dependant person, the domicile of married women was depend
on the domicile of his husband but after the said Act come into force a
marriage woman domicile was not depended on her husband, section one of the said Act provides that;
the
domicile of a married woman as at any time after the coming into force of this
section [1 January 1974] shall, instead of being the same as her husband’s by
virtue only of marriage, be ascertained by reference to the same factors as in
the case of any other individual capable of having an independent domicile.
Young
children, it's generally established that a person acquires a domicile of origin at
birth based on parentage and this domicile is never lost completely as already
discussed, as a domicile of a child depend on his parent it can be termed that
his domicile is dependency one, and as already indicated from the case of Udny v Udny the domicile of legitimate
child depends on his father while of the illegitimate child based on the mother.
In his book Conflict of laws, John
O`Brien summarizes particular cases concerning children and the domicile of
dependency, he said that; After the mother of an illegitimate child has died, or both parents have, in the case of a legitimate child, the child will continue with the domicile of dependence until he is capable of acquiring
an independent domicile. A child is capable of acquiring an independent
domicile when reaching the age of 16 or if he marries under that age.
Cases of a legitimate child whose parents are living apart and where the child has a home with the mother, then
the child will acquire the domicile of the mother and, in such a circumstance,
if he lives with the father he will acquire the domicile of the father
Situations where the father dies, the
domicile of the child will normally follow that of the mother, save in those
situations where the mother leaves the child with a relative when moving to a
new country.
In the case of an adopted child, such a child will be treated as if he were the natural
child of his adopted parents. Thus, from the date of adoption, if not earlier,
he will have the domicile of his parents.
Mentally incapable persons, general a
mental incapability person cannot acquire a domicile of choice and as a general, the rule retains the domicile which he has when became mentally incapable, since
such a person cannot exercise any will he or she can either acquire or lose
domicile and nor can the domicile changed by a person taking charge of or caring
for a mentally disordered person.
For instance, D who is domiciled in India,
becomes insane and is sent to England, he retains his India domicile so long as
he remains insane. Also in a case of Crumpton`s Judicial Factor v Finch Noyes,
D was born with the domicile of origin of Barbados, his father died later on and
shortly after his mother resumed her domicile of origin and take D with her, D
continue o reside in Scotland till he became insane and was placed on Scotland institution, he died later on without recovering his sanity, D was regarded as a person domiciled in Scotland.
From the above discussion, we may draw
that factors that are taken into account in establishing domicile of
dependency is the domicile of a person to whom the dependent person depend on.
2.4 Voluntary Residence: (Domicile of a particular case)
As a general rule to constitute domiciles
residence of any person or propositus must be voluntary a matter of free choice
and not of constraints but there are some exceptions where some situation where
it’s not voluntarily, such situation may apply to various classes of people as
follows;
Prisoners; Imprisonment in a foreign
country raises doubt if such a prisoner freely accepts to resides in a place
where he might be transported or exile, it brings doubt as to whether he can
retain the domicile that he possessed before his confinement
Invalids; These are people who settle in a foreign country for the
sake of his health and not merely for the purpose of convalescence. Such a
person must have an alternative either to stay or to go. Unfortunately, such a choice is already made due to the concern of his health no matter what he would
definitely decide to go to such a country so as to be cured whether he likes it
or not.
Fugitive debtors; Freedom of choice
is also affected where a man finds it desirable to flee the country to avoid
his creditors.
Fugitive from justice; It’s also an
example of involuntary residence in a new country. If a man leaves his domicile
of origin so as to escape the consequences of a crime, the natural inference is
that he has left forever hence it favors the acquisition of a fresh domicile in
the country of refuge. Example in the case Moynihan
v. Moynihan whereby a propositus, who had left the UK to avoid arrest on
serious fraud charges had at his death on acquired a domicile of choice in The Philippines.
Refugees: People who moved/ran away
of their domicile of origin due to various reasons such as political problems
tend to acquire new domicile which mostly they news intended/counted to but due
to such problems they one left with no alternative Example refugees from Rwanda
a who were hosted by Tanzania haven referred to as the new domicile most of them find
themselves forced to stay here.
3. The relationship between domicile and other connecting factors
As
pointed out above connecting factors include domicile, nationality and
residence. Here I will explore the
connection and relationship that exists between domicile and the other two
connecting factors, which are nationality and residence.
3.1 Relationship between domicile and residence
Since
domicile means a permanent home of a person, it follows that one cannot be said
to have a permanent home without an actual or physical presence in the place in
question. And for the purpose of law residence means physical presence in a
particular country. Cooton LJ in Re Marret observed that;
The
law as I understand it is this, that the domicile of origin clings to a man
unless he has acquired a domicile of choice by residence in another place with
an intention of making it his permanent place of residence.
One
cannot be said to be domiciled in a particular country without establishing
whether he is a resident of that given country. A long residence is a fact that
may raise the inference that a person intends to reside in a given country and
hence constitute domicile.
On
top of that both domicile and residence are connecting factors used to
determine the personal law in private international law; it is mostly applied
by countries following the civil legal system.
Also
in case of abandonment of domicile, the same element has to be proved, which is
the physical removal from a country with the intention not to return to. That is a coincidence of non-residence and
intention not to reside.
In
the case of Bell v Kennedy the court
was of the view that, for a person to acquire a domicile of choice it is
necessary to produce unequivocal evidence of both fact of residence and an
intention to permanently reside. Therefore there is a clear connection between
domicile and residence as a connecting factor as indicated above.
3.2 Relationship between Domicile and Nationality
Nationality
and domicile are both connecting factors; this is because the latter indicates
connection with a state while the former indicates a connection with the law. The
relation available is that both nationality and domicile have been advocated by
writers to be methods to determine the personal law, that is to say, nationality
can be used as an alternative to domicile when it comes to determining the
personal in case of conflict of law. It was firstly introduced in France in 1803
as a consequence of the code Napoleon.
Now it is adopted most continental European countries, South American states
and Japan uses nationality to determine personal law instead of domicile.
4.0 Conclusion
The discussion has scrutinized and explored the concept of domicile as a connecting
factor, furthermore it has explained the factor that is taken into consideration
by the court to determine the domicile of a person so as to be able to pin
point the legal system to which a person is connected to. No one can live
without domicile and normally no one can have more than one that is a unique feature which makes the court to prefer domicile over nationality and
residence.
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References
CASES
Bell v Kennedy1868
LR 1 Sc & Div 307;6 Macq 69
Cramer v Cramer
1987] 1 FLR 116
Crumpton`s Judicial
Factor v Finch Noyes 1918 S.C. 378
Hepburn V
Skirving 1861 9 W.R.
764
Jopp v Wood(1865)
4 De GJ & Sm 616
Lawrence v Lawrence
1985
Mark v Mark [2005] UKHL 42
Moynihan v.
Moynihan [1997] 1 FLR 59
Ramsay v Liverpool Royal Infirmary
[1930] AC 588
Re
Martin [1900]
Re
Marrett (1887)
36 Ch D 400, CA.
Udny v.
Udny (1869) 1 LR Sc. & Div. 441 HL
Whicker v Hume (1858) 7 HL Cas 124
White v Tennant
(1888) 31 W Va 790.
Winans v Attorney General
[1904] AC 287
BOOKS
Collie, J. Conflict of Laws 3rd ed,
Cambridge; Cambridge University Press, (2004).
Collins,
L, Ed. Dicey, Morris and Collins, The Conflict of Laws Vol
1, 14th
ed, London; Sweet
&Maxwell. (2006).
David,
MacClean and another, Morris, the
conflict of laws 6th ed, London; sweet &
Maxwell. (2005)
North, P &J. Fawcett, Eds. Cheshire and North`s Private International 13th ed; New Delhi;
Oxford University
Press. (2006).
O`Brien, J. Conflict of Laws 2nd ed.
London; Cavendish Publishing Limited, (1999).
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