Concept of Domicile - meaning & characteristics

Domicile is one of the important element in private international law. it is a decisive factor for choosing appropriate nations law which has more connection with the parties to the issue.

1. CONFLICT OF LAWS DOMICILE BY ADV. CAROLINE ELIAS

2. DOMICILE In personal matters Lex Patriae (law of nationality) is the governing law in the civil countries (other than European countries – usually meants American countries). And Lex Domicili (law of domicile) is the governing law in common law countries. Domicile is considered as a connecting factor to determine the relationship between a person and the legal system of a country. Generally, Under the English law, domicile refers to the permanent residence of a person. (N.B: now the conditions have liberalised )

3. W hicker v. H ume ( 1858) The term domicile was defined by Lord Cranworth - i.e domicile means home, permanent home. The case said that, A will must be executed according to the law of the country where the testator was domiciled at the time of his death. The facts are :- ‘A’ was born in Scotland. As a young man, he went to East Indies(Islands of land of South & South East Asia), where he remained above 20 yrs in company’s service. He then returned to Scotland and lived in Edinburgh, where he put his name on the books of the municipality, married, took a house, entered into business as a partner in a banking – house & became a member of various societies there established. At the end of few years he left Edinburgh in anger, the banking business had come to an end, and he took off his name from the books of the municipality and of the various societies and declared his intention never to return to “Auld Reekie ”.

4. He lived in London, first in lodgings, and then in houses hired for different periods; lectured on Oriental literature, and endeavoured there by to increase the sale of some books which he had written . At the end of some years he went to Paris to avoid some annoyances in London, but never made any declarations with respect to London, that he had made regarding Edinburgh. He left his works in London, and ornamented furniture which he desired a friend to keep for him till he return. He died in Paris, having just before made a will in the English Form: held that he had lost his Scottish and obtained an English domicile . The evidence allowed to leaves no doubt that he went over to Paris for a temporary purpose; that he never meant to reside there permanently; that his domicile, his establishment, his principal residence, was meant to be in this country; and he never abandoned it. S o his domicile in England, was perfectly right.

5. But this traditional notion of domicile has received lot of criticism from common law countries (England) as well. Jurist “Morris” also disagrees with it. * Because a person may be domiciled in a country but that is not his home, * or a person can have only one domicile but he may have more than one home, * or he may be homeless, but he must have a domicile. Domicile is based on the principle of individual liberty – i.e an individual is free to establish his domicile at any place of the world. The national boundaries are not a hindrance to his choice of domicile. This implies that a person may have his nationality in one country and domicile in another.

6. This also implies that a person remains stateless, he cannot remain without a domicile. For matters which are intimately connected with his personal life , such as marriage, children, adoption, guardianship, succession, capacity and all other matters relating to his family life should be determined by the law of the place with which he is most intimately connected. Domicile concept is used for the purpose of establishing the connection of a person with the law of the country with which he or she is most intimately connected. It is also used to establish the connection of a dependant with the law of the domicile of the person to whom he or she is dependent.

7. Domicile is not necessarily a place where a man is living with his wife & children for many years. If it can be shown that an intention was always there in his mind not to make it a permanent home and to return to his original place, then he would not be deemed to have established his domicile there, and his original domicile continues to cling to him, though he had severed all connections with it.

8. In Ramsay v. Liverpool Royal Infirmary (1930) One George Bowie who died in England left a will. The will was invalid according to English law. But the will was invalid according to Scottish law. According to Private International Law, the validity of will is to be decided by applying law of domicile. Thus the question before the English court was that what was the domicile of George Bowie at the time of his death. George Bowie was born in Scotland. His domicile of origin was Scotland. He was working in Scotland till the age of 37. He then moved to England and until his death he resided in England. He did not work in England. He lived on the bounty of his brother. During a period of 36 yrs stay in England he left England only twice, once a short visit to U.S.A and once a short holiday to the Isle of Mann.

9. He never returned to Scotland, not even to attend his mother’s funeral. He even made arrangements for the burial of his body after his death in England. There was no evidence to show that he had intention to return to Scotland. Neverthless the House of Lords held that he had not acquired English Domicile of choice. A person who had not accepted an employment and lived on the bounty of another for a long period in a country cannot claim to have acquired English domicile of choice. Four general principles that governing law of domicile :- (1) No person can be without domicile (2) No person can have domicile at 2 places simultaneously (3) Domicile denotes the connection of a person with a territorial system of law (4) The presumption is in favor of continuance of an existing domicile.