In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children became adults at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go.
Domicile is governed by lex domicilii, as opposed to lex patriae which depends upon nationality, which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two may be the same. However:
Domicile is distinct from habitual residence where there is much less focus on future intent. Domicile is being supplanted by habitual residence in international conventions dealing with conflict of laws and other private law matters.
A person can have only one domicile at any given time, and the manner in which it could change was explained in 1869 in the House of Lords by Lord Westbury in Udny v Udny:
||It is a settled principle, that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of the father if the child be legitimate, or the domicile of the mother if illegitimate. This has been called the domicile of origin, and it is involuntary. Other domiciles are domiciles of choice, for, as soon as the individual is sui juris, it is competent to him to elect and assume another domicile, the continuance of which depends upon his will and act. When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile. But as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose, that it is capable of being, by the mere act of the party, entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto in the manner which is necessary for the acquisition of a new domicile of choice.
Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the unlimited intention of continuing to reside there. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. 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 of illness. And it must be residence fixed not for any defined period or particular purpose, but general and indefinite in its future duration. It is true, that residence originally temporary, or intended only for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose or the animus manendi may be inferred, the fact of domicile of origin may be extinguished by act of law, as, for example, by sentence of death, exile, and perhaps outlawry, but it cannot be destroyed by the act of the party. Domicile of choice, if it is gained animo et facto, may be put an end to in the same manner.
Expressions are found in some books in one or two cases, to the effect, that the first domicile remains until another is acquired. This is true, if applied to the domicile of origin, but it cannot be true if such general words were intended (which is not probable) to convey the conclusion, that a domicile of choice, though unequivocally relinquished and abandoned, clings, in spite of his will and act. to the party until another domicile has animo et facto been acquired. The cases to which I have referred are in my opinion met and controlled by other decisions, but more especially by the reason of the thing. A natural born Englishman may, if he domiciles himself in Holland, acquire the status civilis of a Dutchman, which is of course ascribed to him in respect of his settled abode in Holland, but if he breaks up his establishment, sells his house and furniture, discharges his servants, quits Holland, declaring that he will never return to it again, and taking with him his wife and children for the purpose of travelling in France or Italy in search of another place of residence, can it be said, that he carries his Dutch domicile on his back, and that it clings to him pertinaciously until he has finally set up his tabernacle in another country? Such a conclusion would be absurd. But there is no absurdity, but, on the contrary, much reason in holding, that an acquired domicile may be effectually determined by an unequivocal intention and act, and that, when it is so determined, the domicile of origin instantly revives, and continues until a new domicile of choice is acquired.
Depending on a person's circumstances, it has historically been based upon the following principles:
|Domicile of origin
- the father's domicile, where the father was alive at the child's birth
- the mother's domicile, where the father was not alive at the child's birth, or where the child was illegitimate
- where the parents were not known, the domicile was the place in which the child was found
|Domicile of choice
- when a child reached the age of majority, and had subsequently settled in another jurisdiction with the intention of making it his permanent home
- when a person moves away from a domicile of choice with the intention of settling in another jurisdiction, but has not yet done so, his domicile reverts to the domicile of origin until settlement in a new permanent home has taken place
|Domicile of dependency
- a child's domicile would change when the relevant parent had acquired a new domicile of choice[a]
- a wife would acquire her husband's domicile upon marriage
- a person born mentally incapacitated, or becomes mentally incapacitated while still a minor, continues to be treated in the same way as a dependent child until the incapacity no longer exists[b]
A person's domicile can have important personal consequences:
- A marriage is valid only where properly performed under the law of the jurisdiction in which it takes place, as well as under the law applicable to each of the participants in effect in their respective domiciles.[c]
- If someone is an infant and therefore has reduced contractual capacity, that reduced capacity will tend to apply wherever they go.
- When a person dies, it is the law of their domicile that determines how their will is interpreted, or if the person has no valid will, how their property will pass by intestate succession.
- Historically, divorce could only take place in the domicile of the parties concerned.
There is tension between "domicile of origin" and "domicile of choice" which arises out of the fact that the latter can only be acquired through fulfilling both:
- the ability to settle permanently in another place, and
- the intention to remain there permanently.
The ability to settle permanently has been held to arise only when one can become a permanent resident of the jurisdiction for immigration purposes. For example, suppose that A came from England to Canada on a visa to work for an employer in Ontario. While there, his son B is born. A likes Canada enough to have his status changed to that of landed immigrant. When B comes of age, he decides to leave Ontario for good, but dies before settling permanently elsewhere. B's domicile of origin is England, because of A's initial inability to settle permanently in Ontario. When A obtains permission to land, Ontario becomes his domicile of choice, and B (provided he is still a minor) automatically acquires it as a domicile of dependency. When B attains the age of majority, Ontario becomes his domicile of choice until he decides to leave for good, at which time it reverts to the domicile of origin. His new domicile of choice would only occur once he had been able to settle permanently in a new jurisdiction.
However, it is more difficult to abandon a domicile of choice than to acquire it. In the case of abandonment, both the above conditions must be fulfilled simultaneously as they are interrelated, whereas they are discrete in the latter case of acquisition.
The lack of intention to remain permanently can lead to unexpected results:
A, whose domicile of origin was England, went to India where he had a legitimate son B. B, while resident in India, had a legitimate son C who also, while resident in India, had a legitimate son D. A, B and C intended to return to England when they retired at sixty years of age, but they all died in India before reaching that age. D's domicile of origin remains England, even though he has never lived there.
Certain anomalous jurisprudence occurred where persons lived abroad in cases relating to . The East India Company was declared to be equivalent to a foreign government, and persons engaged in service to it for an indefinite period were deemed to have acquired Anglo-Indian domicile. Persons in the service of the Crown, as well as independent traders, could not acquire this status. As a consequence of the Indian Mutiny, the Company ceased to function as a government upon the passage of the Government of India Act 1858, and such domicile was not capable of being acquired thereafter.
Unsuccessful attempts were made to adapt that case law to other circumstances. In 1844, Stephen Lushington of the Consistory Court observed in dicta that, in the case of the Ottoman Empire, "every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the dominions of the Porte." Similar statements were expressed by the Court of Chancery in 1883 in rejecting the concept of an Anglo-Chinese domicile, where Chitty J of the Court of Chancery stated that "There is no authority that I am aware of in English law that an individual can become domiciled as a member of a community which is not the community possessing the supreme or sovereign territorial power." This was later endorsed by Judicial Committee of the Privy Council in 1888, in holding that "residence in a foreign country, without subjection to its municipal laws and customs, is therefore ineffectual to create a new domicile."
The reasoning behind such decisions was never satisfactorily explained, and the House of Lords later held in 1918 that these rulings built on dicta were wrongly decided and were thus swept aside. In holding that domicile in a foreign State could be properly acquired in such circumstances, Lord Finlay LC declared:
||Before special provision was made in the case of foreigners resident in such countries for application to their property of their own law of succession, for their trial on criminal charges by Courts which will command their confidence, and for the settlement of disputes between them and others of the same nationality by such Courts, the presumption against the acquisition of a domicile in such a country might be regarded as overwhelming, unless under very special circumstances. But since special provision for the protection of foreigners in such countries has been made, the strength of the presumption against the acquisition of a domicile there is very much diminished.
Commercial domicile and prize law
The rules governing civil domicile have on occasion been confused with those governing commercial domicile that appear in public international law which come into play in time of war, with emphasis on the area of prize law, where a merchant's status as an enemy or neutral come to be determined in the courts of a belligerent state. The two sets of rules are fundamentally different. The basic principles that apply are:
- Commercial domicile is acquired whenever a person resides and carries on business in a country in time of war without any intention of bringing his business to an immediate end.
- It is possible to have more than one commercial domicile at the same time and be engaged in business in each of them, but enemy or neutral character is characterized only in the transactions that originate in the belligerent or neutral country concerned.
- Commercial domicile is acquired when a person acts as a merchant, even when he also acts as a consular representative of a state.
- In acting as a merchant, the activity must be extensive enough that the country is said to derive an advantage from the trade he carries on there.
- Commercial domicile is lost at the moment a person puts himself in motion to quit the country of domicile with no intention of returning.
- Any person is an enemy with respect to a ship or cargo who resides and carries on a trade in an enemy territory, and has not divested himself of this hostile character by bona fide putting himself in motion to quit the enemy territory.
- If a person carries on business in both enemy and British territory, any property belonging to him as a merchant of the belligerent state is liable to be captured at sea. Neutral ships may be captured if they break, or attempt to break, a blockade.