Domicile - Easy Understanding

Author: Sangeethaa N S

DOMICILE

Everyone might have come across the word ‘Domicile’ at least once in life whenever we tend to face some inter-country matters. The concept of domicile is simple yet vast to learn since it involves various components and it differs for each nation. The concept of domicile is the universe but the procedures and requisites for obtaining the domicile of a nation are different according to the foreign policies of nations.

THE BASIC RULES GOVERNING DOMICILE:

There are many reasons for the development of the concept of domicile. The term domicile is derived from the Latin word ‘Domicilium’ which stands for ‘to inhabit the home’.

A person cannot be non-domicile of any nation:

According to the principle laid down in the Udny V. Udny[i], no person shall be left without a domicile. When a person is born in a nation, he acquires the domicile of origin (Either father’s or mother’s domicile) which subsists on him until he obtains the other country’s domicile by choice. Even if the person renounces his domicile of choice at a later point of time, then also the domicile of origin will revive back as followed in the English system of law.

The terms domicile, nationality, and citizenship are often used interchangeably though they have a different meaning in real. Domicile refers to the country in which the person wants to reside permanently and in such a way the laws of that country will govern him. A person may have the domicile of a nation even without having citizenship or nationality. Nationality refers to the legal relationship between the nation and the person and this will often have importance when it comes to international law. The nationality can be obtained by various methods such as by birth, naturalization, etc. Citizenship is quite different from the above-mentioned concepts since it purely defines the political status of a person in a country. Citizenship acquires importance when it involves the elements of government jobs, privileges provided by the government, taxation, etc.

Therefore, a person can have a domicile of a nation even if he doesn’t have citizenship or nationality and it strongly conveys the intention of the person to reside in that nation permanently. Since intention to reside permanently is important, the mere absence for a short period or temporary migration due to some reasons will not take the domicile of a person unless until he obtains a new domicile of choice.

No person can have two domiciles at the same time:

A person cannot have two domiciles at a time simultaneously as he cannot decide to reside in two different places permanently. The dual citizenship concept is still there in some countries where a person can have citizenship of two different countries at the same time, but domicile is combined with the intention which fails the person to obtain more than one domicile simultaneously. He can either holds domicile of origin or domicile of choice but cannot hold both in a single hand.

Domicile provides legal system:

The domicile of a person binds him to that particular where he wants to reside permanently. Though it establishes a single legal system for a person, it is not necessary to be the same for all residing in the country. For example, Arjun who was born in the US can obtain domicile in India but he need not necessarily follows the Hindu law if he practices Christianity. He will be abiding by the personal laws of India accordingly.

A presumption in favor of existing domicile:

There is always a presumption in favor of the existing domicile of a person. For instance, a person who has the domicile of origin as India wants to settle down in England, and therefore, he obtained the domicile of choice in England. Later, he changed his mind and wants to settle down in Australia with his family for the rest of his life. He applied for his domicile but before obtaining the domicile in Australia, he died. In the above example, it is very difficult to ascertain the proper law which is to be applied in settling down his properties among his heirs because he had his domicile of origin in India and obtained his domicile of choice in England. But, now he never wanted to settle down in England permanently which clearly says his intention of abandoning England before his death. In such cases, the court will choose the domicile of origin over the domicile of choice as it is the one that cannot be extinguished completely.

The domicile is determined by the English common law system in the countries which follow common law and not by the laws of foreign nations. However, it is also subject to certain exceptions based on the circumstances of the case and the status of a person. i.e. Diplomats, government representatives, etc.

WHY DOMICILE IS IMPORTANT?

Ø To determine the jurisdiction of a case, mostly the cases involving the partition of movable properties.

Ø Domicile is considered as one of the important connecting factors which lays down the proper law and proper jurisdiction of a forum to deal with a case that concerns some foreign element.

Ø Domicile has acquired importance for some other purposes also such as for gaining some privileges provided by the government, to vote, etc.

KEY ISSUES IN DOMICILE:

Domicile can be broadly classified into two types:

v Domicile of Origin

v Domicile of Choice

Domicile of origin is obtained by the person by his birth and his relation with his or her parents. In the Udny V. Udny, the judges held that the legitimate child obtains the domicile of his father and the illegitimate child obtains the domicile of his mother. In the case of an adopted child, he takes the domicile of his parents as if he is born out of the lawful wedlock of adopting parents. In most of the cases, the child has the DOMICILE OF DEPENDENCE only as they are presumed to be incapable of taking decisions on their own. But exceptional cases were also there such as the Re McKenzie[ii] case where the domicile of the child is decided on the place where he was found and not based on the domicile of his parents. The domicile of origin is always stated to be very strong as the person cannot extinguish this domicile in full. If his domicile of choice is abandoned or renounced at any stage of his life, immediately his domicile of origin will come into play.

In the Grant V. Grant[iii] case, the great grandfather of person A was an English domicile and got settled in France. After his death, A’s grandfather and his father were also in France but they wanted to go back to the UK. But before that, they died leaving A in France. In this case, A was held to be the domicile of England following the domicile of his father and grandfather though he never paid any visit to England not even once.

Domicile of Choiceis obtained by an independent person voluntarily when he resides in a place other than his domicile of origin and has a clear intention to settle there permanently. Here the word ‘independent’ refers to the state of being legally independent that is capable of making their own decisions and not a minor or lunatic or a person dependent on others. The conditions for obtaining a domicile of choice may vary from one nation to another as it is decided by the municipal laws of the nation. The period required to satisfy the element of the residence in a nation will also differ according to their laws. In the Jopp V. Wood[iv], the person’s residence in India for 25 years was not considered enough to grant a domicile of choice. At the same time, the short-term residence will not also stop someone from obtaining a domicile of choice of that particular place. In the White V. Tennant[v], the man K took his family from State A to State B and dropped all his belongings there to settle down. He returned to State A to have a stay at his relative’s home and unfortunately died there due to his illness. But in this case, he and his family were declared as the domicile of State B though they stayed there for one day only.

The intention of obtaining a domicile of choice must be genuine and bonafide and domicile should not be acquired merely to achieve some purpose such as obtaining a divorce, to escape from criminal liability, etc. This was also highlighted in the Mark V. Mark[vi] case.

The Public Servants and other officials such Armed forces, the Naval and Air forces, Diplomats, etc. cannot be said to have domicile of the nation where they perform their duties since it cannot be termed as voluntary submission to the nation. Moreover, if they still want to live and settle down in that place even after their retirement or discharge, then they can obtain the domicile of choice voluntarily.

DRAWBACKS:

The main drawbacks in understanding the concept of domicile arise with the element of intention required and revival of domicile of origin at the time of extinction of domicile of choice.

Since the intention is the subjective component, it is not so easy to find out the intention of parties through their actions. It is in the hands of the judge to assume their intentions from the facts presented before them. Many times, the intention of parties may change later according to their job, their relationship with the state, the climate conditions, matrimonial issues, etc. The intention cannot be proved by mere words or by any statement written on paper. That’s why the task of obtaining a domicile of choice is quite difficult.

In the IRC V. Bullock[vii] case, a Canadian man lived in England with his English wife for more than forty years. Still, the court decided that he has the domicile of Canada as his intention was never firm in settling down in England permanently.

In the Ramsay V. Liverpool Royal Infirmary[viii] case, a Scottish man spent more than half of his life in Liverpool and never visited Scotland even after the death of his mother. But the Judges declared him as Scottish domicile as he didn’t have the intention to settle in England permanently.

Most importantly, having the mere intention of abandoning a domicile is not enough to renounce the domicile of choice. He/she must have done something to give up his habitual residence and their actions must convey their intention not to reside in that place for an indefinite period.

DOMICILE OF MARRIED WOMAN, MNCs, AND MINORS:

Though Indian laws of domicile havetheir origin from English laws of Domicile, it has some differences between them when it particularly concerns the married woman, Multi-National Corporations, Lunatics and Minors.

The doctrine of Reverter: In the UK, when the person abandons his domicile of choice, then automatically his domicile of origin will revive to him. Whereas in India, the domicile of origin will not be revived automatically and the person has to resume the same once he gives up on his domicile of choice. The acquired domicile of choice will be in force until he resumes his domicile of origin or obtains a new domicile of choice in a new state. Married women: The married woman acquires her domicile from her husband during the period of marriage life and it will subsist on her unless they are separated by a decree of a competent court. In India also, the married woman follows the domicile of her husband until they are separated by the competent court or her husband is in prison or sentenced to life imprisonment[ix].

Lunatic persons: In the UK, the domicile of a lunatic person is determined based on his/her degree of lunacy. If the lunatic person can decide and has intention on their own, then they can choose their domicile by themselves. If they are diagnosed as fully lunatic, then they will take the domicile of their guardians. In India, no such discrimination is made in respect of the domicile of lunatic persons. If a person is declared insane or lunatic, then according to section 18 of Indian Succession Act, 1925 they follow the domicile of their parents or her husband if she is married, or his/her guardian.

Domicile of Minors: To determine the domicile of a minor, his legitimacy must be established in the UK. The legitimate minor child will follow the domicile of his father. If he is a posthumous child, then the child will follow the domicile of his mother. If the mother gets remarried, and if the adopted father takes the custody of the child, then the child would follow the domicile of his adopted father otherwise, he will take the domicile of his deceased father until he obtains a new domicile of choice on his own. In India, the legitimate child will follow the domicile of his father and even his death before the birth of the child will not change the domicile of the legitimate child. In the case of an illegitimate minor child, he follows the domicile of his mother until he acquires a new domicile of choice. Here the scenario remains the same in India also. In India, the rules of domicile are the same for the adopted child since he will be treated as a legitimate child by the adopted parents. But in the UK no specific rules have been stated out for the adopted minor children. The general rules of domicile of the legitimate child will be followed for adoptive children in the UK. In the UK, we have certain rules of domicile for minors whose parents are divorced. The child will follow the domicile of his father unless his custody is given to his mother. No such provisions are there in India to deal with the domicile of minors whose parents are divorced.

Domicile of married minors: In the UK, the domicile of a married minor girl will follow the domicile of her husband. The domicile of a married minor male will follow that of his parents but after 1974 the position has been changed and as a result of it, he can obtain an independent domicile on attaining the majority age of 16. In India, the Married minor male will take the domicile of his parents whereas the married minor female will follow the domicile of her husband.

SOLUTIONS SUGGESTED:

The first and foremost problem in the concept of domicile is to understand and infer the intention of the parties from their acts. As mentioned earlier, in the Ramsay V. Liverpool Royal Infirmary, though the party resided in England for 60 years, the Court held that he didn’t have the intention to settle in England permanently. In the KedarPande V. Narayan Bikram Shah[x] case, the Supreme Court held that Narayan Bikram Shah was the domicile of India by his choice as his conduct of contesting in elections, managing properties in India, and his habitual residence and prolonged stay, etc. deliberately defines his intention to settle here permanently. These kinds of different judgments lay down confusions in the minds of readers and this has also clearly explained the discretion of judges in determining the intention of parties.

In the Grant V. Grant, the court held the man to be English domicile though he never visited England once in his lifetime. How can a man be said to be a domicile of a nation which he has never visited? How can his mere intention to settle there can be solely taken into account when he never resides there not even for a single day?

Hence, the domicile of parents must be attributed to their child only if he/she also resides with them there for a certain period or atleast have any close connection to that place of domicile.

In the Bell V. Kennedy[xi]case, a Jamaican domicile person got confused to choose between the domicile of Scotland and England and he died without choosing his domicile of choice. In this case, the court held that his Jamaican domicile would subsist upon him in such cases where he acquired no domicile of choice. According to my opinion, this judgment had served justice because many of us got infatuated by a sudden visit to some places or by our temporary stay in particular places. For example, a student who went for his studies to Kerala might get attracted to the state and he might have wanted to settle down in Kerala for the rest of his life. Later he went to Hyderabad for his job and the same attraction happened there too. Now he would possibly get confused between these two states when it comes to the choice of domicile. But one must be very careful in choosing his domicile as it would have a huge impact on his life at a later point in time in terms of abiding by the law. Hence the theory of revival of domicile of origin at the time of extinguishment of domicile of choice is better and wise.

Lastly, in the Udny V. Udny, the court held that the domicile of a legitimate child would follow his father’s domicile whereas the domicile of an illegitimate child will be determined by his mother’s domicile. But this judgment has created greater difficulty than the already existing one. For determining the legitimacy, the domicile of a person is needed under the Lex domicile principle (personal laws). Again, to determine the domicile, the child should first know his legitimacy. Likewise, the circle goes on spinning but it never ends anywhere. The legitimacy concept is not a universal one and it differs from one system to another. For example, in Hindu law, a son born to a second wife is generally considered as illegitimate as he is from unlawful wedlock. Whereas in Muslim law, marrying 4 women at a time is considered a lawful one and the children born out of that 4 marriages wedlock will be treated as legitimate ones.

Therefore, this concept of determining the domicile of origin of children must be avoided to eradicate greater confusion in the future. All children have their domicile of their parents with whom they are residing habitually (in case of divorced parents) and in normal cases, the domicile of the parents (either by origin or choice) will follow their children until they decide to change the same.

In my point of view, these are the things that should be bear in mind while reading the concept of domicile and revival of domicile of origin after renouncing the domicile of choice must be encouraged to root the principle of ‘No person shall live without a domicile’.

References

[i]Udny V. Udny, (1869) LR 1 SC &Div 441. [ii] Re McKenzie case, No. 08 – 16378, Chapter 7. [iii] Grant V. Grant, 286 S.W. 647 (Tex. Civ. App. 1926). [iv]Jopp V. Wood, (1865) 4 De GJ & Sm. 616. [v] White V. Tennant, (1888) 31 West Virginia 790. [vi] Mark V. Mark, (2005) UKHL 42 at (47). [vii] IRC V. Bullock, (1976) 1 WLR 1178. [viii] Ramsay V. Liverpool Royal Infirmary, (1930) SC (HL) 8. [ix] S. 16, Indian Succession Act, 1925. [x]KedarPande V. Narayan Bikram Shah, AIR 1966 SC 160. [xi] Bell V. Kennedy, (1866-69) LR 1 SC &Div 307.