Domicile (law)

Description

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.

General principles

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:

Depending on a person's circumstances, it has historically been based upon the following principles:

Application

A person's domicile can have important personal consequences:

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 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 back 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.

The law in specific jurisdictions

The rules determining domicile in common law jurisdictions are based on case law in origin. Most jurisdictions have altered some aspects of the common law rules by statute, the details of which vary from one jurisdiction to another. The general framework of the common law rules has however survived in most jurisdictions and is in outline as follows:

Canada

Until the passage of the Divorce Act in 1968, divorce could only be obtained in the province of domicile, which effectively required those domiciled in Quebec and Newfoundland to obtain divorce only through an Act of the Parliament of Canada. The 1968 Act required Canadian domicile only, with one year's residence in the province where the divorce order was sought, and the later 1986 Act removed the domicile requirement completely.

When later court proceedings revealed complications arising from the impact of domicile on the validity of same-sex marriages solemnized in Canada, the Civil Marriage Act was amended in 2013 to provide for divorce to be available to nonresident spouses in the province where the marriage took place.

Outside of marriage and divorce, rules relating to domicile generally fall under provincial jurisdiction. The Civil Code of Quebec standardizes rules for that province, while Manitoba is the only common-law province to attempt to completely revise and simplify the rules within its scope. Other provinces have modified their rules as the need arose.

Ontario has modified the following rules relating to domicile:

Common law rules in India

A domicile of origin is the one with which a person is born. It can be changed as a result of adoption and marriage.

Under the common law a married woman was deemed to have the same domicile as her husband, so the domicile of origin of the children of the marriage was the same as that of their father and the time of birth. Children gained their mother's domicile if their father was predeceased or they were born outside marriage. An orphan has the jurisdiction over the original domicile where he or she was found.

Every adult (other than married women) can change their domicile by leaving the jurisdiction of the prior domicile with an intention of permanently residing somewhere else. This is referred to as a domicile of choice. A domicile of choice can be abandoned if a new domicile of choice is acquired or if the domicile of origin revives.

A married woman can only get domicile and other caste certificates from her husband's jurisdiction.

A child's domicile is dependent and, therefore the same, as the adult on whom he or she is dependent.

United States

Each state of the United States is considered a separate sovereign within the U.S. federal system, and each therefore has its own laws on questions of marriage, inheritance, and liability for tort and contract actions.

Persons who reside in the U.S. must have a state domicile for various purposes. For example, a person can always be sued in their state of domicile. Furthermore, in order for individual parties (that is, natural persons) to invoke the diversity jurisdiction of a United States district court (a federal trial court), all the plaintiffs must have a different state of domicile from all the defendants (so-called "complete diversity").

Recently, the United States Supreme Court case of Hertz Corp. v. Friend concluded that the "principal place of business refers to the place where corporations' high level officers direct, control and coordinate the corporations' activities." This is the test for corporate domicile when claiming diversity jurisdiction.

United Kingdom

The United Kingdom contains three jurisdictions: England and Wales; Scotland; and Northern Ireland. All UK jurisdictions distinguish between domicile of origin (decided by the domicile of their father, or if parents unmarried their mother), domicile of choice (when a person has exercised a legal option to change their domicile as can be done when attaining majority) and domicile of dependence (applicable to those legally dependent on another such as some incapable persons, children or women married before 1974) but in general only one place can be a person's domicile at any one time thus preventing the creation of differing simultaneous domiciles for different purposes; the three types of domicile can enable a voluntary change when a person reaches a relevant age. If a domicile of choice lapses and is not replaced the domicile of origin reasserts itself. The concept of domicile is not rooted in statute thus the basic matter of an individual's domicile is not decided by any single statute but rather by case law in combination with applicable international law and statutes following in accord.

England and Wales

The Domicile and Matrimonial Proceedings Act 1973 abolished the rule that a married woman had the domicile of her husband (with transitional rules for those married before 1 January 1974), as well as reforming the rules dealing with the domicile of minors.

Scotland

The rules for persons under 16 for the particular purposes of some Scottish family law are dealt with in the Family Law (Scotland) Act 2006, but this does not by itself fix the domicile for general purposes.

Northern Ireland

The law in Northern Ireland is generally similar to England and Wales but with domestic statutes applying which are not inevitably coincident.

For taxation purposes

Income tax and inheritance tax are applied at first instance to those who are domiciled in the UK. Recent legislative reforms have changed the manner in which Her Majesty's Revenue and Customs applies the concept of domicile for such purposes:

In 2015, Her Majesty's Treasury proposed further changes to the deemed domicile rules, which went through two rounds of consultation. In its response in December 2016, the UK's government announced the following changes would form part of the next Finance Bill, effective on or after 6 April 2017, declaring that deemed domicile will extend to the following classes of persons:

People's Republic of China

A domiciled individual is defined as one who, by reason of the individual’s permanent registered address, family, and/or economic interests, habitually resides in China. A PRC national with a Chinese passport or a domicile registration is likely to be deemed as domiciled in China–whether resident in China or not–and therefore attract liability for individual income tax on worldwide income.