DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW
A Project submitted in the partial fulfillment of B.A. LLB. (Hons.) (VII-
Semester) Course in the Conflict of Laws on Topic;

Domicile and Residence and Conceptual Analysis

SUBMITTED BY;
Shilpi Rana
ROLL NO. 119
B.A.LL.B (Hons.)VIII- Semester

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 ACKNOWLEDGEMENT

I would like to take this opportunity to express my sincere thanks to Mr.

Pandey, Faculty in Law, Dr. Ram Manohar Lohia National Law University,
who gave me an opportunity to write on this topic and also gave his valuable
suggestions to complete this project and without him this project would not
have reached this shape.

I would also like to thank my family, without their love and support this
project would not have completed. Last but not the least; I would like to thank
my friends who were very helpful throughout the completion of the project.

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TABLE OF CONTENTS

TOPIC PAGE NO.

Table of Cases4

1. Introduction.. 5

2. Concept of domicile. 6

Types of domicile

Test of domicile.

3. Concept of residence 12

Types of residence

Test of residence

4. Where is the differentiating line exists. 15

5. Report of Law Commission of India 17

6. Conclusion. 18

7. BIBLIOGRAPHY.19

3
 TABLE OF CASES

1. Bell v Kennedy [1868].

2. C v. S (1947) 2 All ER 677

3. Drevonv Drevon [1864] 34 L J Ch 129, 133.

4. Fox v. Stirk (1970) 2 Q.B. 468

5. IRC v Duchess of Portland [1982] Ch 314, 318-319

6. Irwin v. Irwin (2001) 1 F.L.R178, 189

7. Leon v. Leon, [1966] 3 All E R 820

8. Matalon v. Matalon(1952), p. 233

9. Mitchell v. U.S 88 U.S. 350, 352 (1874)

10. Re M [1993] 1 FLR 495.

11. SumathiAmmal v. D. Paul, AIR 1936 Madras 324 (FB)

12. T. J. Poonen v. Rathi Varghese AIR 1967 Kerala 1 (FB)

13. Udnyv Udny[1869] LR 1 Sc&Div 441, 458

14. Whicker v Hume [1858] 7 HLC 124, 160

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 1. INTRODUCTION

Domicile (the lexdomicilii) 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 cannot be defined with precision Whicker v Hume1defined

domicile as permanent home. However, you will find many reported cases where a person

has lived in a place for 30 or 40 years and has not been held to have acquired a domicile

there. After reading the cases listed above you may conclude that the persons in question

(such a person is often called the propositus) had permanent homes in England, but in none

of the four cases was a domicile acquired in England.

In most systems of the conflict of laws the notion of belonging to a country in some

string sense is of great importance: it identifies an individuals personal laws which

governs the questions concerning personal and proprietarily relationship between the

family. Place of birth is an adequate criterion by which to identify personal law. In England

and other common law countries it is the law of domicile.

Domicile is easier to illustrate than to define. By domicile, we mean permanent home. The

notion of home, or of permanent home takes colour from different facts. An Englishwoman

aged 70 years, a widow after living all her life in Somerset goes to new Zealand to live with

her married daughter, although that move may be, impractical terms, irreversible, is she not

likely to regard England as her homeland? In fact, domicile cannot be equated with home,

because as we shall see a person may be domiciled in a country which is not or never has

been his home; a person may have homes in different countries but can have a domicile

1
[1858] 7 HLC 124, 160

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only one at a time; he may be homeless, but he may have domicile. 2 Indeed there is a wide

gulf between the popular conception of permanent home and the legal concept of domicile.

This paper tries to analyse the concept of Domicile and Residence and the author endeavors

to discuss the conflating concept of Habitual residence and Domicile.

The most basic link between an individual and a country is mere physical presence, even if

it be for a very short period of span. Residence is actually and basically a question of

fact; in some contexts it means very little than the physical presence. But it does not mean

something more, for a person passing through a country as a traveler in not resident there. 3

If someone becomes resident in the country, the link may remain during the brief periods of

absence. It is difficult to be more specific, for a great deal depends upon the context in

which the term residence is used. In a case, held, that university student was resident in

their university town for electoral registration purposes.4In simple words it can be said that

the term residence means different things for different legal purposes. It may be that a

person will relatively easily be held resident in a country if the issue is one of that

jurisdiction of that countrys court, but less if the context is one of the residence during the

fiscal year.

2. CONCEPT OF DOMICILE

Domicile connects a person with the law of a country5. The object of determining a

persons domicile is to connect that person with some legal system for some legal purposes.

To establish such connection it is sufficient to prove the domicile of that country in the

sense of the conflict of laws e.g. England, Scotland, or New York. It is not necessary in

which part of the country he is domiciled. A person who emigrates e.g. to the UK with the

2
A. G. Gupte, Law of Marriage and Divorce, 1st edition, (2007), p. 1049
3
Matalon v. Matalon(1952), p. 233
4
Fox v. Stirk (1970) 2 Q.B. 468
5
Bell v Kennedy [1868].Domicile is an idea of law can be found in this case.

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intention of settling in England or Scotland, only acquires a new domicile by deciding in

which country to settle and by actually settling there.6

There are four fundamental principles to the law of domicile. The principles of

domicile are that:

No person can be without a domicile. This principle springs from the particular

necessity of connecting every person with some system of law by which a number

of legal relations may be regulated.

No person can at the same time for the same purposes have more than one domicile.

This rule springs from the same rule.

An existing domicile is presumed to continue until it is proved that a new domicile

has been acquired. Hence the burden of proving a change of domicile lies on those

who assert it. The change of a domicile of origin must be proved beyond reasonable

doubt: the change of a domicile of choice may be proved on a balance of

probabilities.

For the purpose of the rule of conflict of laws, domicile means domicile in the

English sense. the question as to where a person is domiciled in determined solely

in accordance with the English law

In Mitchell v. U.S., the Supreme Court appeared to struggle with the definition of domicile:

[Domicile is a] residence at a particular place accompanied with positive or presumptive

proof of an intention to remain there for an unlimited time . . . By the term domicile, in its

ordinary acceptation, is meant the place where a person lives and has his home. The place

where a person lives is taken to be his domicile until facts adduced establish the contrary.7

6
Ibid.
7
88 U.S. 350, 352 (1874)
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The Mitchell Courts need to define and then redefine domicile appears to be a sign of

discomfort with the concept. Each definition is cited to a source (mostly English cases), but

the Court does not expressly settle on a definition of domicile. It is too wide a formulation

to say that in an English court, domicile means domicile in the English sense.8

Types of Domicile:

1. Domicile of origin: it is more tenacious than a domicile of choice. It is more

difficult to prove it has been abandoned. If a person leaves the country of his domicile

of origin, intending never to return to it, he continues to be domiciled there until he

acquires a domicile of choice in another country. Every person acquires at birth a

domicile of origin. This is the domicile of his father at the time of his birth if he is

legitimate. It is the domicile of his mother if he is illegitimate or if his father dies before

he is born. Foundlings have a domicile of origin in the country in which they are found.

A domicile of origin may be changed as a result ofadoption, but not otherwise. A person

acquires a domicile of origin at birth. The domicile of a minor child is that of

1. the father if legitimate;

2. the mother if illegitimate;

3. the individual who has primary parental responsibility rights if not a parent; or

4. The country in which the child was found if a foundling. Under the law of

the United States, where a person's place of birth is unknown, their domicile of

origin is "the place to which a person can earliest be traced.9

8
Irwin v. Irwin (2001) 1 F.L.R178, 189, per Cazalet J.
9
First Restatement of Conflicts, 14(3)

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The domicile of origin is absolute and will be the base reference point throughout a

person's life. Thus, if a person acquires a domicile of choice but later abandons it, the

domicile of origin will automatically revive. During the minority, the child has domicile of

dependency, and it changes to match that of the relevant adult.

2. Domicile of choice:Every independent person can acquire a domicile of choice by

thecombination of residence and intention of permanent or indefinite residence. It can

be very easily changed by having the required intention and residence. A person who

has reached the age of majority, is free to choose a new domicile. This choice is effective

when an individual has both:

1. the factum, i.e. unequivocally abandons the old domicile, and

2. the animus semper manendi, i.e. enters a new state with the intent to make it their

permanent home.

The latter is very difficult to prove because most people retain affection for their

previous state and think that they may one day return. Even if a domicile of choice is

found to have arisen, it will be lost as soon as either the factum or the animus is lost.

At this point, the domicile of origin revives

Domicile of dependency: The domicile of a dependent person is the same as, and

changeswith, the domicile of the person on whom he or she is, as regards domicile, legally

dependent. Here in the project, the dependents covered are the married women and

children.

ChildrenThe domicile of a child less than 16 years in English law and 18 years in

Indian law, is quite complicated.

If legitimate, it is that of his father

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 if he is illegitimate or his father is dead it is that of his mother

If he has no parents, his domicile probably cannot be changed if he is adopted, his

domicile is determined as if he were the legitimate child of the adoptive parent or

parents.

Married women

Until 1 January 1974 a married woman (even if a minor) was dependent for the purposes of

the law of domicile upon her husband. So it was the same as, and changed with, the

domicile of her husband. This applied even where they were living apart and had done so

for many years. The domicile of a married woman is now ascertained by reference to the

same factors as in the case of any other individual capable of having an independent

domicile10

Test of Domicile

Intention is intention to reside permanently or indefinitely in a country, that is not for a

limited period or a particular purpose. If the person will leave upon the occurrence of a

contingency, this possibility will be ignored if the contingency is vague and indefinite (e.g.

winning the lottery), but if it is clearly foreseen and reasonably anticipated (e.g. coming to

the end of employment), it may prevent the acquisition of a domicile of choice.

Naturalisation is relevant, but it is not decisive as a matter of law. It is a circumstance and

any circumstance which is evidence of a persons residence, or his intention to reside

permanently or indefinitely, must be considered in determining whether he has acquired a

domicile of choice in that country. Most disputes as to domicile turn on the question of

whether the necessary intention accompanied the residence. A court has said: There is no

act, no circumstance in a mans life, however trivial it may be in itself, which ought to be

10
Domicile and Matrimonial Proceedings Act 1973 s.1 (1)).

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left out of consideration in trying the question whether there was an intention to change the

domicile. A trivial act might possibly be of more weight with regard to determining this

question than an act which was of more importance to a man in his lifetime11

Cheshire and North12 (p.143) say:Nothing must be neglected that can possibly indicate the

bent of the residents mind. His aspirations, whims, amours, prejudices, health, religion,

financial expectations

A person whose domicile is in question may testify as to his intention, but courts view the

evidence of an interested party with suspicion. Declarations of intention made out of court

may be given in evidence by way of exception to the hearsay rule. It has been said that to

acquire a domicile of choice there must be: a residence freely chosen, and not prescribed or

dictated by any external necessity, such as the duties of office, the demands of creditors or

the relief from illness13. This can be seen by examining certain categories of persons.

Domicile of choice is a question of fact, not of law, requiring the combination and

coincidence of residence in a country and a bona fide intention to make a home in that

country permanently or indefinitely. A person can be resident in a place where she has no

right to be, and could form an intention to remain in a place despite considerable

uncertainty as to whether this could be possible. There is no reason in principle why a

person whose presence is unlawful could not acquire a domicile of choice.

11
Drevonv Drevon[1864] 34 L J Ch 129, 133.
12
Cheshire and Norths Private International Law, 13th edition, (1999), p.152
13
Udnyv Udny[1869] LR 1 Sc&Div 441, 458

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 3. CONCEPT OF RESIDENCE

Residence means the place where one actually lives, as distinguished from a domicile.

Residence must be bona fide residence.14 Residence means physical presence as an

inhabitant (IRC v Duchess of Portland15) It is not necessary that residence should be of

long duration but there had been decisions where it was held that even a part of a day was

enough. An immigrant can acquire a domicile immediately on arrival if he or she intends to

settle.

The term residence is often found in the Hague Conventions and often makes its way into

English law through this route. The Hague Conventions do not define habitual residence.

The Court of Appeal has said that it is primarily a question of fact to be decided by

reference to the circumstances of each particular case16

Types of Residence:

Habitual residence- to acquire a habitual residence, a person must take up lawful residence

in the country and therefore a period which shows that the residence has become habitual.

The length of the period is not fixed.A place of settled dwelling which constitutes a person's

ordinary residence. In C v S, the British Court said:

"If he or she leaves ... with a settled intention not to return ... but to take up residence in

country B instead, such a person cannot, however, become habitually resident in a single

day. An appreciable period of time and a settled intention will be necessary to enable him or

her to become so."17

14
SumathiAmmal v. D. Paul, AIR 1936 Madras 324 (FB)
15
[1982] Ch 314, 318-319.
16
Re M [1993] 1 FLR 495.
17
(1947) 2 All ER 677

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In other words, it may take time to establish a habitual residence, but terminating only takes

a departure with intent to relocate permanently. In some cases, a new habitual residence

could be established in as little as one month. The term is a pivotal part of the Hague

Convention on International Child Abduction which, at Article 4, uses the term but does not

define it, as follows: "The Convention shall apply to any child who was habitually

resident in a Contracting State immediately before any breach of custody or access rights.

The Convention shall cease to apply where the child attains the age of sixteen years."

Ordinary residence- It refers to a persons abode in a particular place or country which he

has adopted voluntarily and for the settled purposes, as part of the regular order of his life

for the time being, whether of long or short duration. Its established meaning is that the

claimant is Ordinarily residing in the United Kingdom ( UK) (apart from temporary or

occasional absences) And Their residence here has been adopted voluntarily for settled

purposes as part of the regular order of their life for the time being.

To decide whether the claimant has their settled home in the UK, you must consider all the

relevant facts. Refer to People coming to the UK and People leaving the UK below18.

A claimant can be ordinarily resident in more than one country. If a claimant stated they

have a home in another country this does not mean they cannot be ordinarily resident in the

UK.A claimant who lives in the UK year after year should be treated as being ordinarily

resident here.

Test of Residence:

So, the test to be applied in this context will again be that of the persons abode in

particular purposes as part of the regular order of the life for the time being. In Breuning v.

18
Dicey and Morris: Private International Law, Sweet and Maxwell, New York

13
Beuning, it was held that the continued presence in England of someone who had no choice

but to remain in England for the medical purposes did not constitute habitual residence.

A Full Bench of the Kerala High Court in T. J. Poonen v. Rathi Varghese19 after

considering various decisions gave thefollowing propositions and laid down few test as to

ascertain the existence of residence.

(1) To constitute residence it is not necessary that the party orparties must have his or

their own house.

(2) To constitute residence the stay need not be permanent; itcan be temporary, so long as

there is animus manendioran intention to stay for an indefinite period.

(3) Residence will not take in a casual stay in, or flying visit toa particular place; a mere

casual residence in a place for atemporary purpose, with no intention of remaining, is

notcovered by the word reside.

(4) Residence connotes something more than stay; it impliessome intention to remain at a

place, and not merely to payit a casual visit.

(5) As emphasized by the Supreme Court, by staying in aparticular place, in order to

constitute residence, theintention must be to make it his or their abode or residence,either

permanent or temporary.

(6) The expression last resided also means the place where the person had his last abode

or residence, either permanent or temporary.

(7) Where there has been residence together of a more permanent character, and a casual or

brief residence together, Courts have taken the view that it is only the former that can be

considered as residence together for determining the jurisdiction.

19
AIR 1967 Kerala 1 (FB)

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(8) The question as to whether a particular person has chosen to make a particular place his

abode, is to be gathered from the particular circumstances of each case.

4. 224th REPORT OF LAW COMMISSION OF INDIA20

Domicile of a person is his permanent home. No person can be without a domicile and no

person may have more than one operative domicile. National boundaries do not constitute a

hindrance in ones choice of domicile. This implies that a person may be national of one

country, but his domicile may be another country. Domicile denotes the connection of a

person with a territorial system of law. The importance of domicile lies in the fact that a

persons family matters, like marriage and divorce, are generally determined by the law of

the place of his domicile, besides his religion. The domicile of a married woman is the

same as her husbands by virtue of marriage.

There are two main classes of domicile: domicile of origin and domicile of choice.

Domicile of origin is communicated by operation of law to each person at birth. Domicile

of choice is acquired by a person of full age in substitution for that which he at present

possesses. There are two requisites for acquisition of a fresh domicile: residence and

intention. It must be proved that the person in question established his residence in a

certain country with the intention of remaining there permanently. These two elements of

residence and intention must concur, but this is not to say that there need be unity of time in

their concurrence. The intention may either precede or succeed the establishment of the

residence.

20
Amendment of Section 2 of Divorce Act 1869 Enabling Non-domiciled Estranged Christian Wives to seek
Divorce, June 2009.

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Domicile generally constitutes the basis of jurisdiction of courts for entertaining petitions

for divorce. Although the matrimonial law in India differs from community to community,

the jurisdictional rules differ only slightly.21 The time at which domicile is to be determined

is the time when proceedings are commenced22 In England, the Domicile and Matrimonial

Proceedings Act 1973 changed the position of the jurisdictional rule in regard to petitions

for divorce and now the English courts have jurisdiction to entertain a petition for divorce

if either of the parties to the marriage is domiciled in England on the date when

proceedings are commenced, as now after 1st January 1974 a married woman can have her

own separate domicile.

The said Act not only provides for abolition of wifes dependent domicile, but also adopts

habitual residence as the second basis of jurisdiction: if either party to the marriage was

habitually resident in England throughout the period of one year ending on the date when

the proceedings are commenced, the English courts have jurisdiction to entertain a petition

for divorce.

In India, although there has not been enacted any law for abolition of wifes dependent

domicile, the jurisdictional rule in regard to petitions for divorce (being linked with

domicile of the parties) has been relaxed in various ways in certain matrimonial

legislations. For example, under the Hindu Marriage Act 1955 and the Special Marriage

Act 1954, a petition for divorce may be filed by a wife at the place where she is residing on

the date of the presentation of the petition, videthe Marriage Laws (Amendment) Act 2003.

Sub-section (2) of section 31 of the Special Marriage Act 1954 even before the said 2003

Act provided that a petition for divorce by a wife could be filed here if she had been

21
ParasDiwan, Private International Law, 4th edition, Deep & Deep Publications, New Delhi (1998), p. 284
22
Leon v. Leon, [1966] 3 All E R 820

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ordinarily resident in India for a period of three years immediately preceding the

presentation of the petition irrespective of the husbands residence being outside.

The above amendment brought about by the Marriage Laws (Amendment) Act 2003 was

prompted by the recommendations of the Law Commission of India23 and the National

Commission for Women. The Law Commission had expressed the view that such an

amendment would give a wife, deserted or thrown out, the choice of court, including where

she is residing, to file a petition, relieving her of unbearable burden of expense and

inconvenience as well as advancing the cause of gender justice.

Thus, her residence may well constitute the basis of jurisdiction for a petition for divorce

by a wife irrespective of her domicile. Domicile generally constitutes the basis of

jurisdiction of courts for entertaining petitions for divorce. Although the matrimonial law in

India differs from community to community, the jurisdictional rules differ only slightly.

The time at which domicile is to be determined is the time when proceedings are

commenced.

The LCI has recommended that Section 2 of the Divorce Act 1869 should be suitably

amended in order that the Indian courts shall be entitled to entertain a petition for

dissolution of a Christian marriage where either of the parties to the marriage is domiciled

in India at the time when the petition is presented. However, this suggestion would also

need simultaneous change in the rule of Private International Law as to a wifes domicile,

that is, abolition of wifes dependent domicile, as done in England through the Domicile

and Matrimonial Proceedings Act 1973. In the alternative, following the Marriage Laws

(Amendment) Act 2003, the said provision may be amended to provide that a petition for

23
178th Report on Recommendations for amending Various Enactments, both Civil and Criminal (2001)

17
divorce may be filed by a Christian wife at the place where she is residing on the date of

the presentation of the petition.

5. CONCLUSION

Naturalisation is relevant, but it is not decisive as a matter of law. It is a circumstance and

any circumstance which is evidence of a persons residence, or his intention to reside

permanently or indefinitely, must be considered in determining whether he has acquired a

domicile of choice in that country. Domicile is the most significant connecting factor in

English conflict of laws. It is difficult to define, but easier to understand in practice. There

are important principles of domicile. Everyone is born with a domicile of origin, which

remains (if only in abeyance). Domicile of choice can be acquired by residence and an

intention to reside indefinitely.

There is no simple definition of the legal term "domicile". It is a concept which is distinct

from residence, ordinary residence, nationality and citizenship. In very simple terms, a

person is domiciled in the territory with which the law regards him as having his most

permanent connection. The law of domicile can, however,produce strange results. Where

the concept of domicile connects a person with a legal system, that legal system then

regulates a number of personal matters,for example succession to property on a person's

death and certain taxation implications. Residence indicates a degree of physical presence

in a territory, but a person may be domiciled in a territory in which he does not reside,

which he never visits, and to which he has never even been. Although a person may have

more than one nationality, or none at all,and may be treated as resident in more than one

place at any one time, he must have a place of domicile and can only have one such place

18
at any one time. Furthermore that place of domicile may be different from his place(s) of

nationality and/or residence.

BIBLIOGRAPHY

Books:

1. Dicey and Morris: Conflict of Laws; 14thedn, Sweet and Maxwell, London, 2007

2. A. G. Gupte, Law of Marriage and Divorce, 1st edition, Premier Publishing

Company, Allahabad (2007),

3. H. K. Saharay, Laws of Marriage and Divorce, 5th edition, Eastern Law House,

Kolkata (2007)

4. Cheshire and Norths Private International Law, 13th edition, Butterworths, London

(1999)

5. ParasDiwan, Private International Law, 4th edition, Deep & Deep Publications, New

Delhi (1998),

Reports:

1. 224th Report of Law Commission of India, June 2009

2. 15th Report of the Law Commission (1960)

19