An Appraisal of the Doctrine of Domicile under the Private International Law

INTRODUCTION

In all the nations around the globe that follows the Common Law principle, the criterion employed to connect a person with a particular legal system in matters related to personal status and succession is the doctrine of Domicile.[1] This is important in Conflict of law circumstances when a question arises as to whether a person residing in, or a being a national of, another country, has the capacity to marry or it has to be determined as to who is entitled to succeed to his or her movable property. The term ‘Domicile’ is a concept that comes under the ambit of Conflict of laws or of Private International Law. Domicile is a legal concept which describes the country from which a person has their origin or where they have their permanent home.[2]

The domicile of a person or an individual is generally applicable to a country as a whole and not only to a part of it. It is a common law principle that no person or individual can be or exist without a domicile. It is also an established principle that a person who owns more than one home cannot have more than one domicile at any given time.[3] An existing domicile is presumed to continue until a change is proven on the balance of probabilities. The concept of domicile differs from States to States and depending upon the jurisdiction of the country and the principles it follows.

The term Domicile is a document which  carries with it a very important role in the life of any individual living in the world.  An individual who chooses his or her domicile is subjected to several legal consequences and implications of the concept of domicile. It often determines:

1. the jurisdiction to access State income and death taxes.
2. the primary jurisdiction to Probate, Wills, and Administration of Estates.
3. the judicial jurisdiction over an individual.[4]

Domicile also determines where a person may exercise various legal rights and privileges, such as voting. Some of the important consequences flowing from a person or an individual having a domicile are:

1. The domicile of a person or an individual decides the marriage law applicable to each party based on his or her domicile.
2. The concept of Divorce is only applicable to parties who have a domicile.
3. The law of domicile decides the interpretation of a person’s Will. It is in accordance with the law of a deceased domicile that the intestate succession or the execution of a testator’s Will takes place.
4. Tax implications also arise as it only comes up after determining the domicile of the person or individual in concern.

• THE DOCTRINE OF DOMICILE, NATIONALITY AND RESIDENCE

1. The Distinction between a Domicile and Nationality

The term ‘Nationality’ in general terms means the specific status of membership which is conferred on an individual as citizen of a Nation or State. Fenwick defined Nationality “as a bond which unites a person to a given State, which constitutes his membership in the particular state, gives him a claim to the protection of that state and which subjects him to the obligation created by the laws of that state”[5]

THE MODES OF ACQUIRING A NATIONALITY

The status of Nationality confers certain rights on an individual which he or she can enjoy internationally.

The Nationality to a particular State can be acquired via the following means:

1. By Birth: This kind of nationality is conferred upon an individual or person by way of his or her birth in that nation.
2. By Descent: This kind of nationality is conferred upon an individual by the form of descent from one of its own nationals.
3. By Naturalization: This kind of nationality can be conferred upon an individual or a person by way of adoption, marriage, government job appointment, etc.
4. By Subjugation: A person may acquire nationality through subjugation after a conquest. When the part of a State is subjugated by another State, the inhabitants of that former State become the nationals of the latter State.[6]
5. By Registration of resumption: This kind of nationality is conferred when an individual is born as a natural subject of a State but because of some cause or reason, lost his or her nationality. They can regain their nationality by fulfilling certain conditions.

The loss of a nationality occurs due to Renunciation and other reasons. If an individual acquires a nationality of more than one State or Nation, then he or she can renounce the nationality of one State. Domicile is a relationship between a person and his or her place of residence which is also deemed as a permanent home. Domicile may continue even if the individual has left his or her home.

Nationality on the other hand is a relationship between an individual and a country to which a person owes his allegiance to.[7] Nationality normally confers some protection on an individual by the State and some obligations on the individual towards the State.

The Distinction between a Domicile and Residence

A Domicile is a person’s permanent place of dwelling, and it is a legal relationship between a person and a locality[8] It may or may not be of same meaning as the term ‘residence’. Domicile involves the  intent of an individual whereas residence is somehow objective. Domicile basically consists of or is based upon two major factors such as

1. intention of living and;
2. residence.

Residence is more of a temporary nature whereas domicile is more of a permanent nature. A person or an individual can have only one domicile whereas he or she can have multiple residences.

2.1 THE PRINCIPLES THAT GOVERNS THE DOCTRINE OF DOMICILE

The basic aim of the doctrine of Domicile is to associate an individual with a specific or system of law to which the individual most relates to. Under the Private International Law there are four basic principles which governs the doctrine of domicile in any country.[9] They are:

1. NO PERSON OR AN INDIVIDUAL CAN EXIST OR STAY WITHOUT A DOMICILE

This is the foremost and mandatory principle. It is a mandatory principle and rule that every person or individual should have a domicile. It is a well-established rule which cannot be changed under any circumstances. No individual can exist in isolation without an association or link with a specific domicile. The reason behind the establishment of this principle is that every individual should have a connection and be subjected to a specific system of law so that his or her actions can be regulated by placing the actions under a set of laws.

An individual has the freedom to change his or her domicile at will. However, vice versa, freedom to have no domicile is not available to any person living in any part of the world. Initially, the domicile of a person or an individual is determined by his or her birth. An individual acquires the domicile of his or her father automatically. It is worthy of note that,  if it is a legitimate child, it acquires the domicile of the father, but an illegitimate child acquires the domicile of his or her mother.

NO INDIVIDUAL CAN HAVE TWO DOMICILES SIMULTANEOUSLY

It is one of the basic principles of domicile that since no individual can stay or exit without a domicile, no individual can have two existing domiciles at the same time. The reason behind this principle of domicile is that the doctrine of domicile associates an individual to a specific set of law, rules, and regulations If a person or an individual is allowed to have one or more domiciles, then the basic aim and purpose of having a domicile to regulate the actions of an individual would be compromised and frustrated.[10]

THE BASIC AIM OF DOMICILE IS TO ASSOCIATE AN INDIVIDUAL WITH A TERRITORIAL SYSTEM OF LAW

Domicile has reference to the legal system of law by which a person is governed, and when we talk on the doctrine of domicile of a country, we assume that the same system of law prevails all over that country.[11] However, it is well established that the laws relating to succession and marriage is not the same all over the world and sometimes within parts of a country. Different areas in the State might have different laws in respect of related matters. A good example is the United States where there is no uniformity of law in each State and jurisdiction.

THE PRESUMPTION THAT THE EXISTING DOMICILE ALWAYS CONTINUES

The fourth principle provides that until or unless it is proved otherwise that a person has acquired a new domicile, it will be presumed that he or she still has in existence the old domicile and the burden of proving will lie on the party who states that the individual has changed domicile. However, few jurists have argued that the burden of proof is subject to change depending on the kind of domicile and “the burden of proof is considered fragile when the domicile in question is domicile of dependence and very strong when the kind of domicile is of origin”.[12]

2.2 THE TYPES OF DOMICILES

DOMICILE OF ORIGIN

One of the basic principles that governs the law of domicile is that no individual can stay or exist without a domicile. To give this principle a practical application, the law of domicile confers a domicile at birth for every individual. This is known as the domicile of origin. It is not necessary for the domicile of origin to always be the country of birth of an individual. It is generally the person’s father’s domicile which is conferred upon a child in case of a legitimate child and the mother’s domicile in case of an illegitimate child. A domicile of origin is of fundamental significance and is retained until such time as there is clear evidence that another domicile has been acquired.

DOMICILE OF CHOICE

It is an established rule of Private International Law that an independent individual can change his or her domicile. This is known as domicile of choice. The term ‘Independent’ means a person of 16 years and above. Domicile of choice can be taken for a temporary period in any other outer territory. To establish a domicile of choice, an individual must sever most or all ties with his domicile of origin and settle in the territory in which he wishes to establish a new domicile, with a clear intention of making his home there permanent. If a person wishes to establish a domicile of choice, he or she has the onus of proving that this has occurred, and that in consequence the domicile of origin has been displaced.

Where an individual or a person wants to acquire a domicile of choice, he or she must fulfill the following two conditions:

1. 1. The individual should be a resident of the nation or State for which he or she is trying to acquire the domicile of choice.
   2. The individual should have a clear intention of living permanently in the state for acquiring domicile of choice.

The two factors which are intention and residence are important for acquiring the domicile by choice.

The term ‘residence’ means  a place where the individual resides. Residence is a tangible factor and can be quantified and identified very easily. The term ‘intention’ means the mens rea of the individual to reside in the place. However, intention is an intangible factor and cannot be measured or quantified. To acquire the domicile of choice, the intention of the individual should not be fickle but instead be fixed. For  example: If X leaves his country of origin to live in countries A, B and C, the intention of X settling down in any of these countries is very fickle. Hence, the domicile of choice cannot be procured. But if X decides affirmatively to live in country C for the rest of his life, he can obtain a domicile of choice.

DOMICILE OF DEPENDENTS

Who are dependents?

Children below the age of sixteen years, married women, and mentally disabled persons such as lunatics and idiots fall under the category of dependents. In the case of law of domicile, dependents can also be classified into persons or individuals who are not able to acquire domicile by choice. Therefore, the general rule is that the dependent individual acquires the domicile of dependence of the individual he or she is dependent on. The domicile of a dependent can change if the person the individual is dependent on changes his or her domicile. Under Private International law, the domicile of dependency is governed by the English laws and not the law of the Nations whose domicile is to be acquired or whose domicile the individual was previously in possession.

CONCLUSION

Domicile plays a very important role in Conflict of laws as a connector. It plays a very important role in Taxation laws, Matrimonial laws, Property laws and so many other areas of law where any conflicting situation arises. It determines the capacity of the contracting parties to a contract under the above areas of law.

Domicile of origin is indestructible. Even if a domicile of choice is acquired by an individual or a person, the domicile of origin will always be there to fill in any gaps if at a later stage, a domicile of choice is renounced or lost by an individual. Every individual is born with the domicile of origin, and it tends to stay for life (if only in abeyance). When a person or an individual abandons the domicile of choice by ceasing to reside in that country, a new domicile of choice is to be taken over or the domicile of origin comes back to place by the operation of law. Hence an understanding of the concept of domicile is very important under Private International law or to every area of law.

FOOTNOTES:

[1] ATUL M. SETALVAD, CONFLICT OF LAWS 121 (3rd ed. 2014).

[2] Law Incomes Tax Reform Group, Domicile? Law Incomes Tax Reforms Group,

https://www.litrg.org.uk/sites/default/files/Domicile%202017%20FINAL.pdf.

[3] The Law Essay Professionals, Domicile in Common Law Systems, LAW TEACHER, https://www.lawteacher.net/free-law-essays/commercial-law/domicile-in-common-law-systems-commerciallaw-essay.php.

[4] Cummings and Lockwood, The importance of Domicile, C L LAW, https://www.cl-law.com/news-events/theimportance-domicile/pdf.

[5]Hafiz Muhammad Azeem, Nationality, Domicile and Citizenship, BLOG SPOT, http://hmazeem.blogspot.in/2015/05/nationality-domicile-and-citizenship.html.

[6]Hafiz Muhammad Azeem, Nationality, Domicile and Citizenship, BLOG SPOT, http://hmazeem.blogspot.in/2015/05/nationality-domicile-and-citizenship.html.

[7] The Essayist, The law of Domicile, LEGAL RESCUE, http://legalrescue.blogspot.in/2013/01/the-law-ofdomicile.html 

[8] US Legal, Distinction between Domicile and Residence, US LEGAL, https://domicile.uslegal.com/distinctionsbetween-domicile-and-residence

[9] PARAS DIWAN AND PEEYUSHI DIWAN, PRIVATE INTERNATIONAL LAW 152 (1998).

[10] Pradeep Jain V. Union of India, 1984 SC 142

[11] D.P. Joshi V. State of Madhya Pradesh, AIR 1955 SC 334.

[12] The Law Essay Professionals, Importance of Domicile, LAW TEACHERS, https://www.lawteacher.net/free-lawessays/commercial-law/importance-of-the-domicile-commercial-law-essay.php.