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Faculty of Law, Jamia Millia Islamia- New Delhi

Project Paper on
Concept of Domicile under Private International Law

Under the guidance of:

Prof. Kahkashan Y. Danyal JMI, New Delhi)

Submitted by:
Tasaduq Suhail Sheikh (LL.M. II Semester)
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Table of Contents

S. No. Content Title Page No.

1. Introduction………………………………. 3

2. General Rules of Domicile…………………. 5

3. Acquisition of Domicile of Choice…………….…. 5

4. The Burden of Proof……………………….. 7

5. Change of Domicile and Change of Nationality………. 8

6. Domicile and Nationality Contrasted……………. 8

7. Merits and Demerits of Domicile……..……… 8

8. Domicile of Origin and Domicile of Choice……… 9

9. Comparison between Domicile of Origin and Choice….. 12

10. Concept of Residence……………………. 13

11. Ordinary Residence……………….…… 13

12. Habitual Residence………………….…. 15

13. Domicile of Dependents…………………… 19

14. Married Women………………………… 19

15. The Abolition of Dependency in U.K……………. 24

16. Reforms and Conclusion…………………… 24

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Introduction

Domicile is the connecting factor traditionally used in common law systems. It has
typically been a tricky concept to define but domicile is generally regarded to be
the place where one has, or is deemed by law to have, his permanent home, thus
giving effect to a relationship between an individual and a single system of
territorial law. No person can be without a domicile, even if they lack a permanent
home. Similarly, a person who owns more than one home cannot have more than
one domicile at any given time. An existing domicile is presumed to continue until
a change is proven by the propositus on the balance of probabilities. There is no
uniform concept of domicile and so interpretation of its meaning is largely left
open to the lex fori;1 however, a definition of domicile is given statutory effect in
the Civil Jurisdiction and Judgements Act 1982 and 199 , the Inheritance Tax Act
1984 and the Brussels I Regulation.2 Habitual residence, on the other hand, is
becoming ever more popular as a connecting factor, both in allocating jurisdiction
and applicable law. This is principally due to the increasing use of habitual
residence in modern harmonisation instruments, particularly in the field of family
law but also in the commercial arena. Currently habitual residence lacks any
specific meaning and has been left open for judicial interpretation. The absence of
a definition from any of the legislating instruments it appears in is intentional in
order to move away from ‘technical rules which can produce rigidity and
inconsistencies as between different legal systems’3 such is associated with
concepts of domicile and nationality. Nonetheless, case law does provide some
guidance on how it works in practice. This openness of interpretation means that

1
The law of the country in which an action is brought.
2
(44/2001).
3
All Answers ltd, 'Domicile In Common Law Systems' (Lawteacher.net, April 2019)
<https://www.lawteacher.net/free-law-essays/commercial-law/domicile-in-common-law-systems-
commercial-law-essay.php?vref=1> accessed 8 April 2019.
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determination of its meaning may vary considerably from one territory to another
and may even cause friction within the hierarchy of legal system.4

It has been universally recognized that questions affecting the personal status of a
human being should be governed constantly by one and the same law, irrespective
of where the facts giving rise to the questions may have occurred. But unanimity
goes no further. In England it has been long settled that questions affecting status
are determined by the law of the domicile of the porosities and that, broadly
speaking, such questions are those affecting family relations and family property.
To be more precise, the following matters are to a greater or lesser extent governed
by the personal law; the essential validity of a marriage; the effect of marriage
on the proprietary rights of husband and wife. Jurisdiction in divorce and nullity of
marriage, though only to a limited degree, legitimacy, legitimating and adoption;
wills of movables and intestate succession to movables. The concept of Domicile
in Common Law and Civil Law are distinct and different from each other to a great
extent. In Common Law domicile means equivalent of a person's permanent
residence and in civil law it means habitual residence. Though the common law
variant may seem very simplistic, there are two variant of the Domicile Theory,
they are Domicile of Origin and Domicile of choice. Domicile of Origin is
communicated through operation of law to each person at birth, i.e., domicile of the
father or the mother, dependent on the legitimacy of the offspring. Domicile of
Choice is that domicile that any person of full age is free to possess instead of the
one he already possesses. The English rule is marred by rules that are very complex
and often leads to uncertainty in its outcome.

According to WW Cook5, the “single conception theory” English law takes the
view that any test that determines place of a person's domicile must remain
constant no matter what the nature of the issue may be before the court.
4
Ibid.
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General Rules of Domicile

There are five general rules that apply to the concept of Domicile. They are:

1. No person shall be without domicile. To bring into effect this rule the law
assigns to every person a domicile of origin to every person at birth, namely to a
legitimate child. The domicile of the mother to an illegitimate child and to
foundling place where the child is found.
2. A person can never have two domicile. This is to ensure that several factors and
domiciles don’t hurt his life. Therefore for practical reasons it is necessary that a
person shouldn't possess more than domicile. This is also called the law of the
“Law district”.
3. The fact that a domicile might signify a connection with a single system of
law, but the same law might not apply uniformly to all the classes of that people of
that particular domicile.
4. There is always a presumption that a domicile is ever continuing, the burden
of proof lies on the porosities to prove that it has changed. This factor may have a
decisive effect on his case, as the law applied will change drastically.
5. Subject to other statutory exceptions the concept of domicile shall always be
decided according to the English concept notwithstanding any other foreign
concept of law.
Acquisition of Domicile of Choice
The two requisites for acquiring a domicile of choice are 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. Such an intention
however unequivocal it maybe per se does not suffice. These two elements
of residence and intention must concur, but this is not to say there need be unity of
time in their concurrence. The intention may either precede or succeed

5
Logical and Legal Bases of Conflict of Laws, Harvard University press, 1942.
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the establishment of the residence. The emigrant forms his intention before he
leaves England for Australia; an emigrant who flees persecution may not form it
until years later. Acquisition can be done through the following means:
A) Residence
In IRC V. Duchess of Portland6, it was held that Residence in a country for the
purposes of the law of domicile is physical presence in that country as an inhabitant
of it. Whatever weight is given to the length of residence it is undeniable that time
is not the sole criterion of domicile. Both long residence and short residence does
not constitute negative domicile everything depends on the attendant
circumstances, for they alone disclose the nature of the person’s presence in a
country. In short, the residence must answer “a qualitative as well as a quantitative
test”. Thus in Joppa V. Wood 7it was held that a residence of twenty- five years in
India did not suffice to give a certain John Smith an Indian domicile because of his
alleged intention ultimately to return to Scotland, the land of his birth.
B) The Requisite Intention
a) The nature of intention to reside permanently or for an unlimited time in
a particular country is required for the acquisition of domicile of choice. This may
however not pose any difficulty as the word “permanently” is used in its ordinary
meaning as signifying the opposite of temporary. The word; “permanent”
according to the Shorter Oxford English Dictionary means “lasting or designed to
last indefinitely without change” and this indeed is the definition that most of the
judges have recognized when require to consider the nature of intention
necessary for a change of domicile. In Udny V. Udny,8 for instance, Lord Westbury
described the intention as being one to reside “for an unlimited time”. A more
modern statement to the same effect is that of Scarman J, who referred to an
intention to reside “indefinitely”.

6
[1982] STC 149
7
[1967] ARZ 606
8
1869) 1 LR Sc and Div 441, (1869) LR 1 HL 441
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b) Evidence of Intention:
Most disputes as to domicile turn on the question whether the necessary intention is
accompanied with residence, and this question often involves very complex and
intricate issues of fact. This is because “there is no act, no circumstance in a man’s
life, however trivial it may be in itself, which ought to be left out of consideration
in trying the question whether there was an intention to change the domicile. A
trivial act might possibly be weightier with regard to determining this question than
an act which was of more importance to a man in his lifetime. Therefore to assess
whether there is an intention to acquire a particular domicile, there should be an
evidence of intention that should be looked for.
c) Voluntary Residence:
There may be several circumstances where there maybe doubt about the
willingness of the person to acquire a particular domicile. There are certain
categories of persons who fall suspect in this category:
1) Prisoners: A prisoner retains the domicile of the country which he left before he
was imprisoned.
2) Refugees: In the case of Refugees it becomes difficult, as the factors that forced
to them to flee their domicile, and take residence at a new place, might make
become a matter of choice later on. Although there is a presumption against the
loss of domicile.
3) Fugitives from Justice: If a man leaves his domicile to escape the consequences
of a crime, the presumption is that he has left the place permanently and that there
is a fresh acquisition of a fresh domicile.

The Burden of Proof

An alien living in England under a certificate of registration is liable to deportation
does not prevent him from acquiring an English Domicile of his choice, or
deprive him of a domicile already acquired. Therefore a person of foreign
origin living in a country for a time which qualifies him for a domicile of that
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county may acquire the domicile of that country even though he is still. The burden of proof
that lies on those who allege a change of domicile varies with the circumstances. In this
connection there are two observations that may be made. First, English Judges have taken the
view that it requires far stronger evidence to establish the abandonment of a
domicile of origin in favor of fresh domicile than to establish the abandonment of a
domicile of origin in favor of a fresh domicile than to establish a change from domicile to
another. And by way of contrast, there is authority for the view that a change of domicile from
one country to another under the same sovereign. It is not to be lightly inferred that
a man intends to settle permanently in a country where he will possess the status of an
alien, with all the difficulties and conflict of duties that such a status involves.
Change of Domicile and Change of Nationality
It is important to emphasize that nationality and domicile are two different
conceptions and that a man may change the latter without divesting himself of his
nationality. The mere fact that holds the citizenship of that foreign country.
Domicile and Nationality Contrasted
Nationality represents a person‟s political status, by virtue of which he owes
allegiance to some particular country; domicile indicates his civil status and it
provides the law by which his personal rights and obligations are determined.
Nationality depends apart from naturalization, on the place of birth or on
parentage; domicile is constituted by residence in a particular country with the
intention of residing there permanently. It follows that
a person may be a national of one country but domiciled in another. At present man
y countries in Europe andSouth America adopt nationality as the criterion of
personal laws, whilst the common law jurisdictions of the commonwealth and the
USA, among others, still stand by test of domicile.
Merits and Demerits of Domicile
The English preference for domicile is based on two grounds. First domicile means
the country in which a person has established his permanent home and secondly
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domicile furnishes the only practicable test in case of

political units as U.K., Canada, Australia where the same nationality emb-
races a number of diverse legal systems. The expression national law is
meaningless when applied to a British national because it is one system in England
another in Scotland same is the case for a Canadian. The law related to domicile
has certain vices. It will not infrequently happen that the legal domicile of a person
is out of touch with reality, for exaggerated importance attributed domicile of
origin, coupled with technical doctrine of revival, may well ascribe to
a person a domicile in the which by no stretch of the imagination can be called his home. Also
country equally irrational results may ensure from the view, sometimes inspired by the
English Courts that long residence is not equivalent to domicile if accompanied by
the contemplation of some uncertain event the occurrence of which will cause a
termination of residence. Thirdly, the ascertainment of a person’s domicile to such
an extent on proof of his intention, the most elusive of all factors, that only too
often it will be impossible to identify it with certainty without recourse to courts.
Domicile of Origin and Domicile of Choice
Domicile of Origin:
It is a well-known principle that no person can be without a domicile. For the
practicality in applying this rule the law confers a domicile on every person on
birth. This is known as the domicile of origin. It continues to exist as long as the
concerned person does not acquire another domicile. Even if a person with a view
to acquire another domicile gives up his domicile of origin, it will continue to exist
as long as he does not acquire a new domicile. The moment a person gives up his
domicile of choice, his domicile of origin revives. Since domicile of origin is
attributed to every person at birth by operation of law, the basis of domicile of
origin is paternity or maternity. According to English private international law
legitimate child born during the lifetime of father has his domicile in the country in
which his father was domiciled. A legitimate child born after the death of the father
has domicile in the country in which the mother was domiciled at the time of his
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birth. An illegitimate child has the domicile in the country in which his mother was
domiciled at the time of his birth. This is also the position in Indian law except that
the legitimate child born after the death of his father has his domicile in the country
in which the father was domiciled at the time of his death. Thus the domicile of
origin is not dependent upon the place where a child is born, or on the place where
a child is born, but on the domicile of the father or mother, as the case may be.
There is only one exception to his rule, viz; domicile of founding is the domicile
of the country in which he is found. Domicile of origin is a creature of law and no
person can give it up totally. Every person must have a domicile and the domicile
of origin continues to exist till a person acquires a new domicile. For the revival of
the domicile of origin it is necessary that the domicile of choice should be
abandoned voluntarily. Another important aspect of the domicile of origin is that it
automatically revives by operation of law on the abandonment of the domicile of
choice, whatever time might have elapsed after its abandonment. This rule results
in arbitrariness and injustice. The Indian Succession Act, Section 13 provides:
“A new domicile continues until former domicile is has been resumed or another
has been acquired. Thus under Indian law of domicile of choice continues until a
new domicile is acquired or the domicile of origin is resumed amino et facto.
In the United States also the rule is different; the previous domicile, whether of
origin or choice, is retained till a new one is acquired.
Domicile of Choice:
Any independent person may acquire a domicile of choice. Whether a person has
capacity to acquire a domicile of choice is determined by the law of his existing
domicile. Under English law, before coming into force of the Domicile and
Matrimonial Proceedings Act, 1973, a minor, lunatic and married woman had no
capacity to acquire a domicile of choice, while under the Indian law a married
woman can acquire a domicile of choice under certain circumstances. For the
acquisition of domicile of choice the following two conditions must be satisfied
1) Residence in the country of domicile of choice, and;
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2) Intention to live in the country of domicile of choice permanently. The Indian

Succession Act, 1925, Section 10 lay down, “A man acquires a new domicile by
taking up his fixed habitation in a country which is not that of his domicile of
origin”. Intention may precede the residence, but the coexistence of intention and
residence is essential for acquiring domicile of choice. The residence of a person is
a tangible fact, from which intention may be inferred, while intention is an
intangible fact which can be gathered from certain facts in which it is manifested.
“Residence” is an elastic term of which no exhaustive definition is possible. It is
differently construed in accordance with the purpose and the context in which it is
used. The meaning of the term and the sense in which it is used are controlled by
reference to the object. In Kumund V. Jotindranath9 the Calcutta High Court held
that residence means a place where a person eats, drinks and sleeps, or where his
family or servants eat, drink and sleep. Intention is an act of mind and like other
mental facts it can be gathered from all events and circumstances of the life of a
person. The intention must be fixed and not fickle and must be directed towards
one particular place or country. In the case of refugees they may go to another
force not voluntarily but due to pressure of circumstances and later they may
settle down there. “What is dictated in the first instance may become choice in next
instance”. In that case they may acquire domicile of the country of his refuge. In
the Indian case of Mandal V. Mandal10 two Austrian domiciled persons were
married in Vienna in 1936. In 1939, on the invasion of Austria by Nazi Germany
they fled to India. Since they lived in India and had no intention of returning to
Austria. A full bench of the Punjab High Court held that they had acquired a
domicile of choice in India. In case of fugitives there exist two categories. Those
who go to another country to escape from the consequences of their crime and
those who escape from their civil liabilities. In such cases there arises an inference
that they have acquired domicile of choice in the new country even though their

9
(1911) 38 Cal. 394
10
ILR (1956) Punj. 215
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departure was not voluntary but it can only be confirmed with the length of stay of
the fugitive. Similarly if there is no possibility of fugitive escaping punishment in
case here turns to his country, then it would be a natural inference that he intended
to acquire a new domicile of choice in the country which has given him refuge. In
the case of invalids those who permanently settle down in another country because
of suitability of climate naturally acquires domicile of choice but those who go to
another country for a temporary stay does not acquire domicile. In case of
public servants like Ambassadors, consuls the natural inference is that they do not
acquire domicile of choice in such countries but if a public servant continues to live
in that country even after his discharge from duties then he may acquire domicile
of choice in that country.

Comparison between Domicile of Origin and Choice

The domicile of origin comes into existence by operation of law; independently of
the volition of a person and every person gets it on birth. On the other hand, the
domicile of choice is a domicile which is acquired by the free volition of the person
concerned. For its acquisition the existence of animo et facto is necessary. There is
a very strong presumption in favour of the continuance of the domicile of origin. In
comparison with domicile of choice, domicile of origin, in the words of Lord
McNaughton “is more enduring, its hold is stronger and less easily shaken off”.
Domicile of origin cannot be abandoned easily. Since it is a creature of law and not
of free will, domicile of origin cannot be lost by mere abandonment. Until a
domicile of choice is acquired, the domicile of origin continues. In Bell
V. Kennedy11 Bell, who had his domicile of origin in Jamaica, with a view to
acquire a domicile of choice in Scotland left Jamaica. He reached Scotland and
lived there with his mother-in-law and was looking for an estate to purchase. Yet
he had not firmly made up his mind to settle in Scotland. Then his wife died. The
Court held that till then he had not lost his domicile of origin. On the other hand,
11
1868) L.R 1 Sc & Div. 307
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the domicile of choice is lost by the moment it is abandoned. If a new domicile of

choice is not acquired the domicile of origin revives. Another outstanding feature
of domicile of origin is that it is never lost; when a domicile of choice is acquired,
it remains in abeyance. As soon as the domicile of choice is abandoned or lost it
immediately revives, even if all contacts with the country of the domicile of origin
have been lost.
Concept of Residence
Dissatisfaction with nationality as a connecting factor has led to a realization of the
defects of domicile also. This has several consequences. One has been attempts in
England to reform the concept of domicile. The failure, over many years to reform
domicile has led, it its turn, to a tendency to reject it as a connecting factor in favor
of residence. One of the main forces in this direction has been the fact that the
Hague Conventions have relied on “habitual residence” as a connecting factor. The
Rome Convention on contract choice of law also utilizes this concept, but now in
the commercial sphere. The wheel has been turned full circle as purely domestic
legislation has also adopted “habitual residence” as a major connecting factor in
matrimonial jurisdiction. Nonetheless, although habitual residence is increasingly
being used as an alternative connecting factor, it would be wrong to induce a
general substitution of habitual residence for domicile. For the connection between
a person and a country provided by habitual residence is not sufficiently strong to
justify that persons affairs always being determined by the law of that country.

Ordinary Residence
“Ordinary Residence” has been known as a connecting factor in English law for
some time. It used to form a basis for service of a claim form out of the juris-
diction; it used to be a basis of jurisdiction in matrimonial causes in the case of a
petitioning wife; it used to be a criterion for obtaining security for costs; it is a
significant connecting factor for the purposes of immigration and social security
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law; it is an important connecting factor in taxation statutes; it has been the

criterion used for determining eligibility for a mandatory student award from the
local authority; used as the basis for determining whether a student is a home or
overseas student for the purpose of payment of university fees, and for designating
the local authority to be responsible in a care order. There is some authority on the
meaning of “ordinary residence”, though its precise meaning has caused difficulty.
One judge went so far as to say that the adjective adds nothing to the noun. Lord
Scarman in giving the judgment of the House of Lords in Shah V. Barnet London
Borough12 said that this adjective brings out two important features of ordinary
residence, namely residence must be adopted voluntarily, i.e. not by virtue
of kidnapping or imprisonment, and for settled purposes, which can include for the
purposes of “education, business or profess-
ion, employment, health, family or merely love of the place”. The words “ordinaryr
esidence” should be given their natural and ordinary meaning, and not an artificial
legal construction, which will be the same regardless of context unless it can be
shown that the statutory framework requires a different meaning. Ordinary
residence does not connote continuous physical presence, but physical presence
with some degree of continuity, notwithstanding occasional temporary absences. It
is a question of construction of a statute whether the word “lawful” should be
implied so as to qualify the ordinary residence. Moreover, it can be argued that, as
a matter of general principle, a person should not benefit from his own unlawful
conduct. Each case must, of course, depend on its own peculiar facts but the
authorities show that even absence for a considerable time will not terminate a
person’s ordinary residence if it is due to some specific and unusual cause. Again,
the significance of a comparatively prolonged absence will be weakened if, during
the relevant period, the propositus has maintained a house or flat in England ready
for immediate occupation.

12
1983] 3 All ER 226
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Habitual Residence
The courts have repeatedly followed the judgment of Lord Scarman in R V. Barnet
London Borough Council, ex p Shah,13 holding that there is no difference in
principle between the traditional concept of ordinary residence and the more
fashionable concept of habitual residence and that they both refer to a person’s
abode in a particular place or country which he has adopted voluntarily and for
settled purposes as part of the regular order of his life for the time being, whether
of short or of long duration. Habitual residence is a concept without the various
legal artificialities of domicile, such as the doctrine of revival and analogies with
that concept are not appropriate.
Residence
Before a child or adult can be habitually resident in a country he must be resident
there. This does not necessarily require physical presence at all times. Temporary
absence, for example on holiday or for educational purposes or for an attempt to
effect reconciliation with an estranged spouse will not bring an end to habitual
residence. Indeed, it can continue despite considerable periods of absence. A
habitual residence in England has been held to continue despite a period of some
two years nine months residing in Hong Kong.
However, it is a question of statutory construction whether the world “lawfully”
should be implied into a statutory provision which uses the concept of habitual
residence. Indeed, it is only right that persons with longstanding links with England
should have their personal affairs dealt with in England and subject to English
Law.
A Period of Time
The formulation in Re J (A minor) (Abduction: custody rights)14 requiring
residence for a n appreciable period of time, has been followed in numerous cases.
However, more recently the House of Lords in Nessa V. Cheif
13
[1982] Q.B. 688
14
1990] 2 AC 562
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Adjudication Officer15 has adopted rather different wording. Lord Slynn said that,
as a matter of ordinary language, a person is not habitually resident in any country
unless that person has taken up residence and lived there for a period which shows
that the residence has become “habitual” and will or is likely to continue to be
habitual. It follows that there may be a gap between habitual residence in one state
and acquisition of habitual residence in another. A person may have no habitual
residence at all. However, it may be that for the purposes of making a particular
legislation effective, an example being the founding of jurisdiction, it may be
necessary that a person is habitually resident in some state. In other words, there
would not be a gap. It is a question of fact whether and when the requisite habitual
residence has been established. This depends very much on the circumstances of
the particular case. In V V. B (A minor) (Abduction)16 an habitual residence was
acquired after less than three months‟ residence in Australia, the parties according
to the plaintiff, having decided to settle there.
A settled intention
There must be a degree of settled intention or purpose. This is not concerned with
being settled in a country. There is no need to show a person intended to stay there
permanently or indefinitely. The settled intention can be for a limited
period, a period limited by the immediate purpose such as employment, even short-
termemployment of no more than six months. Thus a person can be habitually
residence in a country even though he intends at some future date to move to
another country. In Watson V. Jamieson there was a settled purpose where children
went to live with their father in Scotland for two years, the understanding between
the separated parents from the outset being that the children separated
would then go to live with their mother, who lived in New Zealand for two years.
The children were held to be habitually resident in Scotland. The longer the period
of residence, the easier it becomes. Thus in M V. M (Abduction: England
15
[1999] 1 WLR 1937
16
[1991] 1 FLR 266
17 | P a g e

and Scotland)17 it was clearly important in finding this settled purpose that the
parties had actually been living in Scotland for as long a period as two years. In
these cases involving a period of short residence, the residence was for a temporary
purpose and this was fatal to the acquisition of a habitual residence. When it comes
to establishing an intention to settle, this was shown in one cases by the fact, inter
alia, that the family furniture was sent to that country.
Voluntarily
There is a further requirement in relation to adults that the residence must have
been voluntary. A service man who is stationed on a base abroad can be regarded
as voluntarily resident in that country (he could have left the armed forces if he did
not want to accept the posting) and, having made the family home there, he and his
family will take this country as their habitual residence.
Abandonment
A person can cease to be habitually resident in a country in a single day if he or she
leaves it with a settled intention not to return it but to take up long term residence
in another country instead. For example, in Moran V.Moran18 the parents, who
were habitually resident in California, agreed that the mother and child should
return to Scotland for a year, whilst the father remained in California to deal with
business problems. It was held that the Child’s habitual residence ceased as from
the date of departure from California. The abandonment of a habitual residence can
take place without acquisition of another habitual residence somewhere else, with
the inevitable result that a person has no habitual residence. Moreover, because an
habitual residence can be abandoned in one day but not acquired until there has
been residence for a period showing that residence has become habitual, this gap
when there is no habitual residence will correspondingly last for that period. It has
even been accepted that, exceptionally, for the purposes of making particular
legislation effective, it may be necessary to ensure that there is no gap.
17
[1997] 2 FLR 263
18
1997 SLT 541
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Children
The habitual residence of a child is not fixed but may change according to the
circumstance of the parent or other principal carer with whom the child lives and
who is lawfully exercising rights of custody. If the parents are living together and
the child is living with them it will take the parents habitual residence. There is a
problem if the child is born abroad whilst on holiday to parent’s habitual resident
in England. It has been said, obiter, that in these circumstances it is possible for the
child to take a habitual residence in England from Birth.
If both parents have joint parental responsibility, neither parent can unilaterally
change the child’s habitual residence by removing or retaining it wrongfully and in
breach of the other party’s rights. Both parents must consent to the change of
habitual residence. In the unusual situation where a married couple lived with the
children, and yet each parent had a different habitual residence, the habitual
residence of the children could only change if the parents had a common intention
to change their residence.
It follows that before a child can be habitually resident in a country it must be
resident there. Thus for a child’s habitual residence to change to that of another
country the child has to leave the country in which he is resident and reside in that
other country. If one parent has sole lawful custody for the child, his situation with
regard to habitual residence shall be the same as that of this parents. According to
the Court of Appeal, in Re M (Minors) (Residence Order: Jurisdiction)19 a lawful
custody refers to the child being in the physical care of that parent. If a child has
been made a ward of the court, a parent cannot then change its habitual residence
without leave of the court. It is not clear at what age a person ceases to be a child
for the purposes of habitual residence but it is likely that this is at 16. As with an
adult, a child may have no habitual residence.

19
[1993] 2 FLR 858
19 | P a g e

Domicile of Dependents
Minors, married women and mentally disordered persons, such as idiots and
lunatics, fall in the category of dependents. In respect of domicile the word
“Dependent” is applied to a person in general who is incapable of having a
domicile of his choice. The general rule is that a dependant person has the domicile
of the person he is dependent on. The domicile dependency, as it sometimes is
called, is an imposed domicile and it changes only when the person on whom the
dependent is dependent changes his domicile. A dependent person can’t abandon
his dependency. Thus, a wife who lives separately from her husband, a minor who
ran away from his parents and a lunatic who live s in another country cannot claim
a domicile of their own. It is only in one case that a dependent can get a new
domicile. This happens when a female minor marries. But then what she acquires is
the domicile of her husband. Where the person on whom they are dependent on
dies or if they have no one to depend on, then the dependent’s domicile cannot
change at all. These statements of law in respect of English law have to be read
subject to certain qualifications, since the Domicile and Matrimonial Proceedings
Act, 1973 had made some changes relating to married women and minor children.
Under English private international law, the capacity to acquire new domicile is
governed by English law and not by the law of the previous domicile or by law of
the intended new domicile.20 There are basically three classes of dependents, viz.,
minors, married women and mentally disordered persons.
Married Women
In Gray V. Formosa21 a rule was underlined that, domicile of a married woman is,
during covertures, the same as, and changes with the domicile of her husband‟, this
was the basic common law principle of unity of
the person of husband and wife. According to Blackstone, “By marriage, the
husband and wife are one person in law, i.e., the very being and legal existence of

20
Re Beaumont, (1893) 3 Ch 490
21
(1963), P. 259
20 | P a g e

woman is suspended during the marriage, or at least is incorporated and

consolidated into that of husband, under whose wing of protection and cover she
performs everything… Upon this principle of union of person in husband and wife,
depends almost all the legal rights, duties and disabilities that either of them
acquires by the marriage.” This rule is also expressed by saying that the husband’s
actual and the wife’s legal domicile are one, wherever the wife maybe residing. By
a valid marriage, the domicile of the wife becomes that of the husband, and the fact
that married couple is living apart under separate agreement, or a husband has
deserted the wife, does not render her free to choose a domicile apart from his. In
Lord Advocate V. Jaffery,22 one Mrs. Mackinson was married on June 26, 1876 to
one Robert Mackinson who was born in Campbell town, Aberdeen and at the time
of marriage was a Chief Quartermaster in the Navy. On retiring from the Navy in
1886 till 1893, he lived with his wife in Aberdeen. In 1893, owing to his drunken
and dissipated habits, it was arranged; at the instance of his wife that Mackinson
should leave Scotland for Australia and his passage out was paid by Mrs.
Mackinson’s mother. He reached Sydney and for some time remained in New
South Wales. Sometimes before, June 1902, he went to Queensland and resided in
Brisbane where he died on January 1, 1918. On June 2, 1902, he went through a
form of bigamous marriage with one Willhemina, with whom he lived
until his death, and from whom he had two children. After his
departure from Scotland no communication passed between him and
his wife. In 1915, Mrs. Mackinson, who continued to live in Aberdeen,
filed a petition for divorce on the ground of her husband’s desertion and adultery.
Two main questions before the court were:
a) Whether at the date of Mrs. Mackinson’s petition, Robert Mackinson had
acquired a domicile in Queensland,
b) If so, whether Mrs. Mackinson had acquired a derivative domicile in
Queensland by virtue of the marriage then subsisting between them. The trial court
22
(1921) 1 A.C. 146
21 | P a g e

was of the opinion that Robert Mackinson acquired a domicile in Queensland, but
that, in the special circumstances of the case, wife’s domicile remained Scottish;
on the latter point the first appellate court reversed the judgment. The House of
Lords affirmed the judgment of the first appellate court. Lord
Dunedin, pronouncing the opinion of House of Lords, quoted the
following passage from the opinion of Sir Cresswell in Yelverton V. Yelverton23
“The domicile of the husband is the domicile of the wife; and even supposing
him to have been guilty of such misconduct as would furnish her with a defense
to a suit by him for restitution of conjugal rights, she could not on that ground
acquire another domicile for herself.” If the marriage is void, the wife does not
acquire the domicile of her husband24.
But if she goes to another country and lives with a putative husband, she may
acquire a domicile of choice there. But if the marriage is void on the ground that
she was already a wife of someone, she cannot acquire a new domicile. Then
her domicile will remain that of her lawful husband.25

The rule that the wife’s domicile is tagged with that of her husband has been
severely criticized. It is evident that in our contemporary world this is socially most
undesirable. Attempts to round of its sharpest corners have been statutory.
The Domicile and Matrimonial Proceedings Act, 1973 has now repealed the old
provisions, and a wife is now allowed her own separate domicile. New
jurisdictional rules have been laid down. Thus the English law had gone much
ahead of the suggestion of the Private International Law Committee that a wife was
living separately under a decree of judicial separation should be allowed to acquire
an independent domicile. The Domicile and Matrimonial Proceedings Act, 1973
makes fundamental changes in the domicile of the wife. The rule of unity of

23
(1859) 1 S.W. & Tr. 574.
24
White V. White, (1937), P. 111; Mehta V Mehta, (1945) 2 All. E.R. 690; De Reneville v De Reneville, (1948),
P.100 (C.A)
25
Von Lorang V. Adm. Of Austrian Property, (1927) A.C. 641
22 | P a g e

domicile of husband and wife stands abolished. The act lays down that the wife
does not acquire the domicile of her husband merely by virtue of her marriage.
Now her domicile is to be ascertained the same way as the domicile of an
independent person is ascertained. Section 1(1) lays down: “… the domicile of a
married woman as at any time after the coming into force of the section shall,
instead of being same as her husband’s by virtue of only if marriage, be ascertained
by reference to the same factors as in the case of any other individual capable of
having an independent domicile.” The Act came into force on Jan 1 1974. A
woman already married on Jan 1, 1974, retains her husband’s domicile of
dependency (but she retains it, not as a dependent’s domicile but as of choice or
origin), till she acquires another domicile. Sub section (2) provides, “Where
immediately before this section came into force, a woman was married and then
had her husband’s domicile by dependence, she is to be treated as retaining the
domicile in (as a domicile of choice, if it is not also her domicile of origin.) Unless
and until it is changed by acquisition or revival of another domicile either on
or after the coming into force of this section.”26

In the U.S.A, the rule of unity of domicile of husband and wife is not taken to the
logical end to which it was taken in English law. There, a wife living separate from
her husband, separation not amounting to desertion, can acquire her own
independent domicile; separation maybe by agreement or by a decree of court.27
In Indian statutory law also does not follow English law. The Indian Succession
Act 1925, Section 15 and Section 16 incorporate the general rule: on marriage the
wife acquires the domicile of her husband and during covertures her domicile is the
domicile of her husband. Then it is laid down that wife can acquire her own
domicile in the following cases:
1. If the wife lives separate under a decree of the court.

26
IRC V. Duchess of Portland, (1982) 2 W.L.R. 367
27
William V. Osenton, 232 U.S. 619.
23 | P a g e

2. If the husband is undergoing a life sentence.28

Indian courts have been called upon to dwell in the matter in the several different
situations like in the case of Prem Pratap V. Jagat Pratap 29.Here it was held that
the wife’s domicile remains that of the husband even if he deserts her. Then was
the case of Rani Saeeda Khautan V. State of Bihar30 in the wake of partition. The
wife of one Capt. Kumar Singh domiciled in India, left with her mother to
Pakistan. On 14th May 1950 she visited India on a permit issued by the Indian
Commission in Pakistan. On 23rd July 1950 she was served with a notice of the
Government of India to quit India. In a petition for a writ of mandamus it was
argued on behalf of the wife that she, being the wife of Indian domiciled person,
was domiciled in India and thus, cannot be asked to quit India, since by going to
another country or by any other act of her she could not, during her marriage’s
subsistence acquire any domicile of her own. Her plea was accepted by the Patna
High court. Substantially the Allahabad High court also accepted the plea of the
wife. Justice Mallick, referring to Section 16, Indian Succession Act, 1925said that
during the subsistence of covertures in the domicile of the wife is the domicile of
her husband.31
It is quite unfortunate to observe that the courts in India tend to blindly follow
their English counter-parts, it is like the persuasive decisions are getting more
importance. Even though English precedents are being quietly followed, American
decisions aren’t given much importance. Our courts should have at least extended
the principle of separate domicile to those cases where husband and wife are living separate, or the
husband has deserted the wife.

28
R. Dolphin V. Robins, (1859) 7 H.L.C. 390
29
1944 All 97
30
951 Pat 454
31
Smt. Allabandi V. Union of India, 1954 All. 45
24 | P a g e

The Abolition of Dependency in U.K

Until 1974 the rule was that the domicile of a husband was communicated to his
wife immediately on marriage and it was necessarily and inevitably retained by her
for the duration of marriage. This rule was much criticized as the last barbarous
relic of a wife’s servitude and was abolished under Section 1 of the Domicile and
Matrimonial Proceedings Act 1973. The domicile of a married woman at any time
on or after 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. This
means that a married woman is to be treated as capable of acquiring a separate
domicile; though in vast majority of cases she and her husband will, independently
acquire the same domicile. It is, however quite possible for happily married
spouses to have separate domiciles as where, for example, a student at an English
university who is domiciled in New York marries a fellow student domiciled in
England, both intending at the end of their studies to go and live in New York. The
1973 act also deals with transitional problems of the domicile of dependence of a
wife acquired before 1974. A woman married before 1974 who therefore acquired
her husband’s domicile on marriage is to be treated as retaining that domicile as a
domicile of choice if it was not the wife’s own domicile of origin, until its changed
by acquisition of a new domicile of choice or revival of the domicile of origin on or
after 1st January 1974. This meant that after that date, the wife’s domicile is not to
be treated as dependent on her husband but as her own domicile of origin, or of
choice until she acquires a new domicile of choice or until her domicile of origin
revives.
Reforms and Conclusion

Attempts in the 1950s and 1960s at the wholesale reform of the law of domicile
were unsuccessful because they were thought to be too radical. More recently, the
English and Scottish Law Commissions put forward in a join Report a set of
25 | P a g e

proposals for reform of the major rules which, at least as regards the ease of change
of domicile were more conservative. The Law Commission started off on the basis
that it should be a little easier to acquire a new domicile. To achieve this, it was
proposed that the standard of proof in all acquisition cases should be the normal
civil standard, and that it should be sufficient to show that a person intended to
settle in the country in question for an indefinite period. When it comes to domicile
issues other than that of ease of change of domicile, a bolder line was taken which
would have led to major improvements in the law. The domiciles of origin, choice
and dependency would have been abolished, to be replaced by a domicile
for children and a domicile for adults. This would have greatly simplified the law.
No special tenacity would have been given to the domicile received at birth and the
doctrine of revival would have been replaced by a rule that an adult’s domicile
would continue until another domicile was obtained. All in law, the Law
Commissions’ proposals represented “a further important step in the process of
improving the structure, effectiveness and fairness of the rules of domicile”, and
were supported by the judges of the Family Division. In Scotland, the law in
relation to the domicile of persons under 16 has been reformed. Influenced, at least
in part, by the Law Commissions’ proposals, Scots law provides that were the
parents are domiciled in the same country and the child has a home with a parent or
with both of them, the child is domiciled in the same country as its parents.
26 | P a g e

Bibliography

# ANTON A E, Private International Law: A treatise from the standpoint of Scots

law, 2nd ed. (Edinburgh: W. Green, 1990).

# CHESHIRE, NORTH & FAWCETT, Private International Law, edited by JJ

Fawcett and JM Caruthers, 14th ed. (Oxford: Oxford University Press, 2008).

# CRAWFORD E B AND CARRUTHERS J M, International Private Law: A

Scots Perspective, 3rd ed. (London: W. Green, 2010).

# DICEY, MORRIS & COLLINS, The Conflict of Laws, edited by L Collins, 14th
edition (London: Sweet & Maxwell, 2006).

# HAYTON D J (ed.), European Succession Laws, (Jordan Publishing Ltd, 2002).

# MICHAEL PARKINSON (2010). Domicile Reform in the United Kingdom.

Private Client Business, 1, pp 39-47.

# PIPPA ROGERSON (2000). Habitual Residence: The New Domicile,

International and Comparative Law Quarterly, 49, pp 86-107.

# DIWAN, PARAS & PEEYUSHI DIWAN, Private International Law: Indian and
English p.39 (Deep & Deep Publications 4th Edition 1977).

# J. STORY, Commentaries on the Conflict of Laws, Foreign and Domestic, in

regard to Contracts, Rights, and Remedies, and especially in regard to Marriages,
Divorces, Wills, Successions, and Judgments (Boston, Hilliard, Gray & Co. 1834).

# NADELMANN, K.H., Mancinis Nationality Rule and Non-Unified Legal

Systems, Nationality and Domicile, in Conflict of Laws: International and
Interstate, Selected Essays by Kurt H. Nadelmann (The Hague, Martinus Nijhoff
1972).