Private International Law Project On Domicile.docx

INTRODUCTION It has been universally recognized that questions affecting the personal status of a human being should be governed constantly by one and the same law, irrespective of where the facts giving rise to the questions may have occurred. But unanimity goes no further. In England it has been long settled that questions affecting status are determined by the law of the domicil of the porosities and that, broadly speaking, such questions are those affecting family relations and family property. To be more precise, the following matters are to a greater or lesser extent governed by the personal law; the essential validity of a marriage; the effect of marriage on the proprietary rights of husband and wife. Jurisdiction in divorce and nullity of marriage, though only to a limited degree, legitimacy, legitimating and adoption; wills of movables and intestate succession to movables. The concept of Domicil in Common Law and Civil Law are distinct and different from each other to a great extent. In Common Law domicil means equivalent of a person's permanent residence and in civil law it means habitual residence. Though the common law variant may seem very simplistic, there are two variant of the Domicile Theory, they are Domicil of Origin and Domicil of choice. Domicil of Origin is communicated through operation of law to each person at birth, i.e., domicil of the father or the mother, dependent on the legitimacy of the offspring. Domicil of Choice is that domicil that any person of full age is free to posses instead of the one he already possesses. The English rule is marred by rules that are very complex, and often leads to uncertainty in its outcome. According to WW Cook, the “single conception theory” English law takes the view that any test that determines place of a person's domicil must remain constant no matter what the nature of the issue may be before the court.

GENERAL RULES There are five general rules that apply to the concept of Domicil they are 1) No person shall be without domicil. To bring into effect this rule the law assigns to every person a domicile of origin to every person at birth, namely to a legitimate child. The domicil of the mother to an illegitimate child and to foundling place where the child is found. 2) A person can never have two domicil. This is to ensure that several factors and domiciles don‟t hurt his life. Therefore for practical reasons it is necessary that a person shouldn't posses more than domicil. This is also called the law of the “Law district”. 3) The fact that a domicil might signify a connection with a single system of law, but the same law might not apply uniformly to all the classes of that people of that particular domicile. 4) There is always a presumption that a domicil is ever continuing, the burden of proof lies on the porosities to prove that it has changed. This factor may have a decisive effect on his case, as the law applied will change drastically.

5) Subject to other statutory exceptions the concept of domicil shall always be decided according to the English concept notwithstanding any other foreign concept of law.

ACQUISITION OF DOMICILE OF CHOICE The two requisites for acquiring a domicil of choice are residence and intention. It must be proved that the person in question established his residence in a certain country with the intention of remaining there permanently. Such an intention however unequivocal it maybe per se does not suffice. These two elements of residence and intention must concur, but this is not to say there need be unity of time in their concurrence. The intention may either precede or succeed the establishment of the residence. The emigrant forms his intention before he leaves England for Australia; an emigrant who flees persecution may not form it until years later. Acquisition can be done through the following means.

A) RESIDENCE In IRC v Duchess of Portland, it was held that Residence in a country for the purposes of the law of domicile is physical presence in that country as an inhabitant of it. Whatever weight is given to the length of residence it is undeniable that time is not the sole criterion of domicile. Both long residence and short residence does not constitute negative domicile everything depends on the attendant circumstances, for they alone disclose the nature of the person‟s presence in a country. In short, the residence must answer “a qualitative as well as a quantitative test”. Thus in Joppa v Wood it was held that a residence of twenty- five years in India did not suffice to give a certain John Smith an Indian domicile because of his alleged intention ultimately to return to Scotland, the land of his birth.

B) THE REQUISITE INTENTION a) The nature of intention to reside permanently or for an unlimited time in a particular country is required for the acquisition of domicile of choice. This may however not pose any difficulty as the word “permanently” is used in its ordinary meaning as signifying the opposite of temporary‟. The word; “permanent” according to the Shorter Oxford English Dictionary means “lasting or designed to last indefinitely without change” and this indeed is the definition that most of the judges have recognized when require to consider the nature of intention necessary for a change of domicile. In Udny v Udny, for instance, Lord WESTBURY described the intention as being one to reside “for an unlimited time”. A more modern statement to the same effect is that of SCARMAN J, Who referred to an intention to reside “indefinitely”. b) Evidence of Intention Most disputes as to domicile turn on the question whether the necessary intention is accompanied with residence, and this question often involves very complex and intricate issues of fact. This is

because “there is no act, no circumstance in a man‟s life, however trivial it may be in itself, which ought to be left out of consideration in trying the question whether there was an intention to change the domicile. A trivial act might possibly be weightier with regard to determining this question than an act which was of more importance to a man in his lifetime. Therefore to assess whether there is an intention to acquire a particular domicile, there should be an evidence of intention that should be looked for c) Voluntary Residence There may be several circumstances where there maybe doubt about the willingness of the person to acquire a particular domicile. There are certain categories of persons who fall suspect in this category. 1) Prisoners: A prisoner retains the domicil of the country which he left before he was imprisoned. 2) Refugees: In the case of Refugees it becomes difficult, as the factors that forced to them to flee their domicile, and take residence at a new place, might make become a matter of choice later on. Although there is a presumption against the loss of domicile. 3) Fugitives from Justice: If a man leaves his domicil to escape the consequences of a crime, the presumption is that he has left the place permanently and that there is a fresh acquisition of a fresh domicile.

THE BURDEN OF PROOF An alien living in England under a certificate of registration is liable to deportation does not prevent him from acquiring an English Domicil of his choice, or deprive him of a domicil already acquired. Therefore a person of foreign origin living in a country for a time which qualifies him for a domicil of that county may acquire the domicile of that country even though he is still The burden of proof that lies on those who allege a change of domicile varies with the circumstances. In this connection there are two observations that may be made. First, English Judges have taken the view that it requires far stronger evidence to establish the abandonment of a domicil of origin in favor of fresh domicil than to establish the abandonment of a domicil of origin in favor of a fresh domicile than to establish a change from domicile to another. And by way of contrast, there is authority for the view that a change of domicil from one country to another under the same sovereign. It is not to be lightly inferred that a man intends to settle permanently in a country where he will possess the status of an alien, with all the difficulties and conflict of duties that such a status involves.

CHANGE OF DOMICILE AND CHANGE OF NATIONALITY It is important to emphasize that nationality and domicil are two different conceptions and that a man may change the latter without divesting himself of his nationality. The mere fact that holds the citizenship of that foreign country.

DOMICILE OF DEPENDENTS Minors, married women and mentally disordered persons, such as idiots and lunatics, fall in the category of dependents. In respect of domicile the word „Dependent‟ is applied to a person in general who is incapable of having a domicile of his choice. The general rule is that a dependant person has the domicile of the person he is dependent on. The domicile dependency, as it sometimes is called, is an imposed domicile and it changes only when the person on whom the dependent is dependent changes his domicile. A dependent person can‟t abandon his dependency. Thus, a wife who lives separately from her husband, a minor who ran away from his parents and a lunatic who live s in another country cannot claim a domicile of their own. It is only in one case that a dependent can get a new domicile. This happens when a female minor marries. But then what she acquires is the domicile of her husband. Where the person on whom they are dependent on dies or if they have no one to depend on, then the dependent‟s domicile cannot change at all. These statements of law in respect of English law have to be read subject to certain qualifications, since the Domicile and Matrimonial Proceedings Act, 1973 had made some changes relating to married women and minor children. Under English private international law, the capacity to acquire new domicile is governed by English law and not by the law of the previous domicile or by law of the intended new domicile. 1 There are basically three classes of dependents, viz., minors, married women and mentally disordered persons. MARRIED WOMEN:

In Gray v Formosa2, a rule was underlined that „domicile of a married woman is, during covertures, the same as, and changes with the domicile of her husband‟, this was the basic common law principle of unity of the person of husband and wife. According to Blackstone, “By marriage, the husband and wife are one person in law, i.e., the very being and legal existence of woman is suspended during the marriage, or at least is incorporated and consolidated into that of husband, under whose wing of protection and cover she performs everything… Upon this principle of union of person in husband and wife, depends almost all the legal rights, duties and disabilities that either of them acquires by the marriage.” This rule is also expressed by saying that the husband‟s actual and the wife‟s legal domicile are one, wherever the wife maybe residing. By a valid marriage, the domicile of the wife becomes that of the husband, and the fact that married couple is living apart under separate agreement, or a husband has deserted the wife, does not render her free to choose a domicile apart from his.

1 2

Re Beaumont, (1893) 3 Ch 490 (1963), P. 259

In Lord Advocate v Jaffery3, one Mrs. Mackinson was married on June 26, 1876 to one Robert Mackinson who was born in Campbeltown, Aberdeen and at the time of marriage was a Chief Quartermaster in the Navy. On retiring from the Navy in 1886 till 1893, he lived with his wife in Aberdeen. In 1893, owing to his drunken and dissipated habits, it was arranged; at the instance of his wife that Mackinson should leave Scotland for Australia and his passage out was paid by Mrs. Mackinson‟s mother. He reached Sydney and for some time remained in New South Wales. Sometimes before, June 1902, he went to Queensland and resided in Brisbane where he died on January 1, 1918. On June 2, 1902, he went through a form of bigamous marriage with one Willhemina, with whom he lived until his death, and from whom he had two children. After his departure from Scotland no communication passed between him and his wife. In 1915, Mrs. Mackinson, who continued to live in Aberdeen, filed a petition for divorce on the ground of her husband‟s desertion and adultery. Two main questions before the court were: a) Whether at the date of Mrs. Mackinson‟s petition, Robert Mackinson had acquired a domicile in Queensland, b) If so, whether Mrs. Mackinson had acquired a derivative domicile in Queensland by virtue of the marriage then subsisting between them. The trial court was of the opinion that Robert Mackinson acquired a domicile in Queensland, but that, in the special circumstances of the case, wife‟s domicile remained Scottish; on the latter point the first appellate court reversed the judgment. The House of Lords affirmed the judgment of the first appellate court. Lord Dunedin, pronouncing the opinion of House of Lords, quoted the following passage from the opinion of Sir Cresswell in Yelverton v Yelverton4. “The domicile of the husband is the domicile of the wife; and even supposing him to have been guilty of such misconduct as would furnish her with a defense to a suit by him for restitution of conjugal rights, she could not on that ground acquire another domicile for herself.” If the marriage is void, the wife does not acquire the domicile of her husband.5 But if she goes to another country and lives with a putative husband, she may acquire a domicile of choice there. 6 But if the marriage is void on the ground that she was already a wife of someone, she cannot acquire a new domicile. Then her domicile will remain that of her lawful husband.7 The rule that the wife‟s domicile is tagged with that of her husband has been severely criticized. 8 It is evident that in our contemporary world this is socially most undesirable. Attempts to round of its sharpest corners have

3

(1921) 1 A.C. 146 (1859) 1 S.W. & Tr. 574. 5 White V White, (1937), P. 111; Mehta V Mehta, (1945) 2 All. E.R. 690; De Reneville v De Reneville, (1948), P.100 (C.A). 6 Von Lorang v Adm. Of Austrian Property,(1927) A.C. 641 7 Shaw v Gould, (1868) L.R. 3 H.L. 55. 8 Graveson, 176-77; Wolff, 122; Cheshire, 167. 4

been statutory. The Domicile and Matrimonial Proceedings Act, 1973 has now repealed the old provisions, and a wife is now allowed her own separate domicile. New jurisdictional rules have been laid down. Thus the English law had gone much ahead of the suggestion of the Private International Law Committee that a wife was living separately under a decree of judicial separation should be allowed to acquire an independent domicile. The Domicile and Matrimonial Proceedings Act, 1973 makes fundamental changes in the domicile of the wife. The rule of unity of domicile of husband and wife stands abolished. The act lays down that the wife does not acquire the domicile of her husband merely by virtue of her marriage. Now her domicile is to be ascertained the same way as the domicile of an independent person is ascertained. Section 1(1) lays down: “… the domicile of a married woman as at any time after the coming into force of the section shall, instead of being same as her husband‟s by virtue of only if marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.” The Act came into force on Jan 1 1974. A woman already married on Jan 1, 1974, retains her husband‟s domicile of dependency (but she retains it, not as a dependent‟s domicile but as of choice or origin), till she acquires another domicile. Sub section(2) provides , “Where immediately before this section came into force, a woman was married and then had her husband‟s domicile by dependence, she is to be treated as retaining the domicile in (as a domicile of choice, if it is not also her domicile of origin.) Unless and until it is changed by acquisition or revival of another domicile either on or after the coming into force of this section.”9 In the US, the rule of unity of domicile of husband and wife is not taken to the logical end to which it was taken in English law. There, a wife living separate from her husband, separation not amounting to desertion, can acquire her own independent domicile; separation maybe by agreement or by a decree of court.10 In Indian statutory law also does not follow English law. The Indian Succession Act 1925, ss. 15 and ss. 16 incorporate the general rule: on marriage the wife acquires the domicile of her husband and during covertures her domicile is the domicile of her husband. Then it is laid down that wife can acquire her own domicile in the following cases: 1. If the wife lives separate under a decree of the court. 2. If the husband is undergoing a life sentence.11 Indian courts have been called upon to dwell in the matter in the several different situations like in the case of Prem Pratap v Jagat Pratap12. Here it was held that the wife‟s domicile remains that of the husband even if he

9

IRC V Dichess of Portland, (1982) 2 W.L.R. 367. William v Osenton, 232 U.S. 619. 11 R. Dolphin v Robins, (1859) 7 H.L.C. 390 12 1944 All 97 10

deserts her. Then was the case of Rani Saeeda Khautan v State of Bihar13 in the wake of partition. The wife of one Capt. Kumar Singh domiciled in India, left with her mother to Pakistan. On 14 th May 1950 she visited India on a permit issued by the Indian Commission in Pakistan. On 23rd July 1950 she was served with a notice of the Government of India to quit India. In a petition for a writ of mandamus it was argued on behalf of the wife that she, being the wife of Indian domiciled person, was domiciled in India and thus, cannot be asked to quit India, since by going to another country or by any other act of her she could not, during her marriage‟s subsistence acquire any domicile of her own. Her plea was accepted by the Patna High court. Substantially the Allahabad High court also accepted the plea of the wife. Justice Mallick, referring to s. 16, Indian Succession Act, 1925 said that during the subsistence of covertures in the domicile of the wife is the domicile of her husband.14 It is quite unfortunate to observe that the courts in India tend to blindly follow their English counter-parts, it is like the persuasive decisions are getting more importance. Even though English precedents are being quietly followed, American decisions aren‟t given much importance. Our courts should have at least extended the principle of separate domicile to those cases where husband and wife are living separate, or the husband has deserted the wife. MINOR CHILDREN

For the purpose of domicile the minority in Indian law continues till a person attains the age of 18years while in English law, under s. 3 of the Domicile and Matrimonial Proceedings Act, 1973, minority terminates on the attainment of 16 years. Domicile of natural children: in respect of natural children‟s domicile, the established rules of private

international law are: a) The domicile of a legitimate minor children, if parents have not separated during minority , i)

Is the domicile of the father as long as the as the father is alive and it changes when with the domicile of the father,

ii)

After the death of the father it is the domicile of the mother so long as the mother is alive and changes with the domicile of the mother;

b) The domicile of an illegitimate child during minority is the same as that of the mother and changes with the domicile of the mother; c) The domicile of a minor orphan cannot be changed; and d) When the minor attains majority he can change his domicile.15

13

1951 Pat 454 Smt. Allabandi v Union of India,1954 All. 457 15 Dicey and Morris, Rule 12, p.110; Cheshire, 176 14

Indian law is slightly different from English law in this aspect. Indian law recognizes three exceptions when minor‟s domicile does not follow that of his parent: a) If the minor is married, b) If the minor holds any office or employment in the service of Her Majesty, or c) If the minor has set up, with the consent of the parent, any distinct business. Both English and Indian private international law a child on attaining majority can acquire his own domicile.16 This proposition came for interpretation in Hnderson v Handerson17. Adopted children: in English private international law there is yet no authority in the domicile of adopted child. The Private International Law Committee suggests that the rule in America should be followed i.e. the adopted child should have the domicile that his adopted parents has. In Indian law, the authority was given by Madras High Court that the domicile of the adopted child is the domicile of the adopting parents and change with the change in the domicile of the adopting parents. 18 The question is: what will be the domicile of the adopted child? On marriage the adoptive mother acquires the domicile of her husband. If the mother does not take the child with her, then the child retains the domicile that it had before the marriage of his mother. In case the child is taken care of by the step father and goes to live with his adopted mother and step father, domicile of the adopted child changes with the mother. Domicile of minor child after death of parents: In English private international law the domicile of a

legitimate child, after the death of the father is the domicile of the mother and changes with the domicile of the mother, provided that the child is living with his mother. However this change of domicile is not automatic. Under the Indian law the domicile of the legitimate minor child is in the country in which his father was domiciled at the time of his death. The Indian law does not say that the domicile of the child whose father is dead will be that of his mother. It is like Indian law fixes the domicile of a legitimate child with that of the father and that of an illegitimate child with his mother. If the father or mother dies then the domicile of the child remains the same as it was at the death of the parent. In our contemporary world every act of guardianship is weighed on the scales of welfare of children. It is submitted that the rule should be that the domicile of an orphan child may be changed by his guardian with the prior permission of the court in the country in which the child is domiciled and further that no court will accord such permission unless it comes to the conclusion that the change would be for the welfare of the child.

16

Michael Anthony Rodrigues v State of Bombay, 1956 Bom 729 (1965) 2 W.L.R. 218 18 (1929) 30 M.L.W. 691 17

Domicile of the child when the parents have separated: If parents are living separately, legally or otherwise

have obtained a decree of judicial separation then the question arises as to the domicile of the child. According to the Domicile and Matrimonial Act, 1973the domicile of the child continues to be that of the father unless the following things happen: a) When the child is living with his mother and is not with his father, b) If he has acquired the domicile of his mother by virtue if his having lived with her, then he will continue to have that domicile, even when he leaves his mother, provided he is not living with his father, and c) The child will continue to have his mother‟s domicile even after the death of his mother, if he has acquired his mother‟s domicile by virtue of his having his home with his mother, and not with his father. It is apparent that in the two latter cases, if the child lives with his father and makes home with him, the child will acquire the domicile of his father. It is to be noted that in case of separation the child does not live with his mother, then he continues to have the domicile of his father even if he is not living with his father like living with some relative or local authority or even if the situation is such that the father is not known. Indian law has no answer to such a situation. It is submitted that the child will have the domicile of the parent in whose custody he is living, wither under an order of the court or de facto, and t should be that parent who should have the right to change the domicile of the child. In case of disputes between parents, the interest of the child is the paramount consideration. Domicile of Married Minor Child: Before January 1, 1974, the position in English law was that a minor child

on marriage retained the domicile of his father or mother, i.e., its original domicile of dependency, while the minor child acquired the domicile of her husband. Now under Domicile and Matrimonial Act, 1973, the position is that a minor child attains capacity to acquire independent domicile on marriage, applying to both males and females. The Indian law is still stuck to the situation before January 1, 1974. The domicile of a female minor on her marriage changes on her marriage to the domicile of her husband. 19 It is seen that if the husband is minor and thus, has a domicile of dependency of either the father or mother, then the domicile of the minor married female child will be the same as that of her husband and will change with the change in the domicile of her husband. Even when she becomes a widow while being a minor, her domicile will be that of her husband had when he died. She cannot acquire back her pre-marriage domicile of origin. Even when the minor widow becomes a major she would continue to have the domicile of her dead husband, unless she acquires a domicile of her choice.

19

Section 15, Succession Act, 1925

LUNATICS:

In English private international law there is no direct authority on the domicile of lunatics. It seems that an independent person who becomes insane cannot change his domicile, as he is incapable of exercising his will. It seems that even his guardian cannot change it. Thus it seems that the lunatic will retain the domicile which he had when he became a lunatic (i.e. when he began to be legally treated as insane) even if he goes to another country and settles there.20 In the modern English law lunacy is categorized on the basis of degrees of mental disorder. It is submitted that if they have sufficient ability to form the necessary intention, they should be able to change their domicile. It is also submitted that those who are kept under guardianship should also be able to acquire new domicile, if their guardianship thinks it is proper to do so. The guardian court or the court of protection should be able to accord permission to the guardian to do so whenever it is thought to be in the interest of the child. In Indian law we have a statutory provision in s. 18, Indian Succession Act, 1925 which runs: “An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.” The Act does not specify who this “another person” is. But it seems clear that if the lunatic is a minor then it is the parent on whom he is dependent and if lunatic is a married woman, then it is her husband. It is submitted that if the lunatic is a major and has a guardian, then this “another person” should be guardian of the lunatic. There is no reason why Indian courts should follow the old English decision in Urquhart v Butterfield21which lays down that a major lunatic‟s domicile remains static, i.e., it remains the same as it was at the time when he legally began to be treated as insane.

DOMICILE OF MARRIED WOMAN

The abolition of dependency

Until 1974 the rule was that the domicile of a husband was communicated to his wife immediately on marriage and it was necessarily and inevitably retained by her for the duration of marriage. This rule was much criticized as the last barbarous relic of a wife‟s servitude and was abolished under Section 1 of the Domicile and Matrimonial Proceedings Act. The domicile of a married woman at any time on or after 1 January 1974 shall instead of being the same as her husband‟s by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile. This means that a married woman is to be treated as capable of acquiring a separate domicile; though in vast majority of cases she 20 21

Urquhart v Butterfield, (1887) 37 Ch. D. 357; Hepburn v Skirving, (1861) 9 W.R. 764 (1887) 37 Ch. D. 357

and her husband will, independently acquire the same domicile. It is, however quite possible for happily married spouses to have separate domiciles as where, for example, a student at an English university who is domiciled in New York marries a fellow student domiciled in England, both intending at the end of their studies to go and live in New York. The 1973 act also deals with transitional problems of the domicile of dependence of a wife acquired before 1974. A woman married before 1974 who therefore acquired her husband‟s domicile on marriage is to be treated as retaining that domicile as a domicile of choice if it was not the wife‟s own domicile of origin, until its changed by acquisition of a new domicile of choice or revival of the domicile of origin on or after 1st January 1974. This meant that after that date, the wife‟s domicile is not to be treated as dependent on her husband but as her own domicile of origin, or of choice until she acquires a new domicile of choice or until her domicile of origin revives.

DOMICILE AND NATIONALITY CONTRASTED Nationality represents a person‟s political status, by virtue of which he owes allegiance to some particular country; domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined. Nationality depends apart from naturalization, on the place of birth or on parentage; domicile is constituted by residence in a particular country with the intention of residing there permanently. It follows that a person may be a national of one country but domiciled in another. At present many countries in Europe and South America adopt nationality as the criterion of personal laws, whilst the common law jurisdictions of the commonwealth and the USA, among others, still stand by test of domicile.

MERITS AND DEMERITS OF DOMICILE The English preference for domicile is based on two grounds. First domicile means the country in which a person has established his permanent home and secondly domicile furnishes the only practicable test in case of political units as U.K. Canada, Australia where the same nationality embraces a number of diverse legal systems. The expression national law is meaningless when applied to a British national because it is one system in England another in Scotland same is the case for a Canadian. The law related to domicile has certain vices. It will not infrequently happen that the legal domicile of a person is out of touch with reality, for exaggerated importance attributed domicile of origin, coupled with technical doctrine of revival, may well ascribe to a person a domicile in the country which by no stretch of the imagination can be called his home. Also equally irrational results may ensure from the view, sometimes inspired by the English Courts that long residence is not equivalent to domicile if accompanied by the contemplation of some uncertain event the occurrence of which

will cause a termination of residence. Thirdly, the ascertainment of a person‟s domicile to such an extent on proof of his intention, the most elusive of all factors, that only too often it will be impossible to identify it with certainty without recourse to courts.

DOMICILE OF ORIGIN AND DOMICILE OF CHOICE DOMICILE OF ORIGIN It is a well known principle that no person can be without a domicile. For the practicality in applying this rule the law confers a domicile on every person on birth. This is known as the domicile of origin. It continues to exist as long as the concerned person does not acquire another domicile. Even if a person with a view to acquire another domicile gives up his domicile of origin, it will continue to exist as long as he does not acquire a new domicile. The moment a person gives up his domicile of choice, his domicile of origin revives. Since domicile of origin is attributed to every person at birth by operation of law, the basis of domicile of origin is paternity or maternity. According to English private international law legitimate child born during the lifetime of father has his domicile in the country in which his father was domiciled. A legitimate child born after the death of the father has domicile in the country in which the mother was domiciled at the time of his birth. An illegitimate child has the domicile in the country in which his mother was domiciled at the time of his birth. This is also the position in Indian law except that the legitimate child born after the death of his father has his domicile in the country in which the father was domiciled at the time of his death. Thus the domicile of origin is not dependent upon the place where a child is born, or on the place where a child is born, but on the domicile of the father or mother, as the case may be. There is only one exception to his rule, viz; domicile of founding is the domicile of the country in which he is found. Domicile of origin is a creature of law and no person can give it up totally. Every person must have a domicile and the domicile of origin continues to exist till a person acquires a new domicile. For the revival of the domicile of origin it is necessary that the domicile of choice should be abandoned voluntarily. Another important aspect of the domicile of origin is that it automatically revives by operation of law on the abandonment of the domicile of choice, whatever time might have elapsed after its abandonment. This rule results in arbitrariness and injustice. The Indian Succession Act, Section 13 provides: “A new domicile continues until former domicile is has been resumed or another has been acquired. Thus under Indian law of domicile of choice continues until a new domicile is acquired or the domicile of origin is resumed amino et facto. In the United States also the rule is different; the previous domicile, whether of origin or choice, is retained till a new one is acquired. DOMICILE OF CHOICE

Any independent person may acquire a domicile of choice. Whether a person has capacity to acquire a domicile of choice is determined by the law of his existing domicile. Under English law, before coming into force of the

Domicile and Matrimonial Proceedings Act, 1973, a minor, lunatic and married woman had no capacity to acquire a domicile of choice, while under the Indian law a married woman can acquire a domicile of choice under certain circumstances. For the acquisition of domicile of choice the following two conditions must be satisfied 1) Residence in the country of domicile of choice and 2) intention to live in the country of domicile of choice permanently. The Indian Succession Act, 1925, Section 10 lay down, “A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin”. Intention may precede the residence, but the coexistence of intention and residence is essential for acquiring domicile of choice. The residence of a person is a tangible fact, from which intention may be inferred, while intention is an intangible fact which can be gathered from certain facts in which it is manifested. “Residence” is an elastic term of which no exhaustive definition is possible. It is differently construed in accordance with the purpose and the context in which it is used. The meaning of the term and the sense in which it is used are controlled by reference to the object. In Kumund v Jotindranath22 the Calcutta High Court held that residence means a place where a person eats, drinks and sleeps, or where his family or servants eat, drink and sleep. Intention is an act of mind and like other mental facts it can be gathered from all events and circumstances of the life of a person. The intention must be fixed and not fickle and must be directed towards one particular place or country. In the case of refugees they may go to another force not voluntarily but due to pressure of circumstances and later they may settle down there. “What is dictated in the first instance may become choice in next instance”. In that case they may acquire domicile of the country of his refuge. In the Indian case of Mandal .v. Mandal23 two Austrian domiciled persons were married in Vienna in 1936. In 1939, on the invasion of Austria by Nazi Germany they fled to India. Since they lived in India and had no intention of returning to Austria. A full bench of the Punjab High Court held that they had acquired a domicile of choice in India. In case of fugitives there exist two categories. Those who go to another country to escape from the consequences of their crime and those who escape from their civil liabilities. In such cases there arises an inference that they have acquired domicile of choice in the new country even though their departure was not voluntary but it can only be confirmed with the length of stay of the fugitive. Similarly if there is no possibility of fugitive escaping punishment in case he returns to his country, then it would be a natural inference that he intended to acquire a new domicile of choice in the country which has given him refuge. In the case of invalids those who permanently settle down in another country because of suitability of climate naturally acquires domicile of choice but those who go to another country for a temporary stay does not acquire domicile. In case of public servants like Ambassadors, consuls the natural inference is that they do not acquire domicile of choice in such countries but if a public servant continues to live in that country even after his discharge from duties then he may acquire domicile of choice in that country.

22 23

(1911) 38 Cal .394 ILR (1956) Punj.215

COMPARISON BETWEEN DOMICILE OF ORIGIN AND CHOICE The domicile of origin comes into existence by operation of law, independently of the volition of a person and every person gets it on birth. On the other hand, the domicile of choice is a domicile which is acquired by the free volition of the person concerned. For its acquisition the existence of animo et facto is necessary. There is a very strong presumption in favour of the continuance of the domicile of origin. In comparison with domicile of choice, domicile of origin, in the words of Lord Macnaughten “is more enduring, its hold is stronger and less easily shaken off”. Domicile of origin cannot be abandoned easily. Since it is a creature of law and not of free will, domicile of origin cannot be lost by mere abandonment. Until a domicile of choice is acquired, the domicile of origin continues. In Bell.v.Kennedy24 Bell, who had his domicile of origin in Jamaica, with a view to acquire a domicile of choice in Scotland left Jamaica. He reached Scotland and lived there with his motherin-law and was looking for an estate to purchase. Yet he had not firmly made up his mind to settle in Scotland. Then his wife died. The Court held that till then he had not lost his domicile of origin. On the other hand, the domicile of choice is lost by the moment it is abandoned. If a new domicile of choice is not acquired the domicile of origin revives. Another outstanding feature of domicile of origin is that it is never lost; when a domicile of choice is acquired, it remains in abeyance. As soon as the domicile of choice is abandoned or lost it immediately revives, even if all contacts with the country of the domicile of origin have been lost.

CONCEPTS OF RESIDENCE Dissatisfaction with nationality as a connecting factor has led to a realization of the defects of domicile also. This has several consequences. One has been attempts in England to reform the concept of domicile. The failure, over many years to reform domicile has led, it its turn, to a tendency to reject it as a connecting factor in favor of residence. One of the main forces in this direction has been the fact that the Hague Conventions have relied on “habitual residence” as a connecting factor. The Rome Convention on contract choice of law also utilizes this concept, but now in the commercial sphere. The wheel has been turned full circle as purely domestic legislation has also adopted “habitual residence” as a major connecting factor in matrimonial jurisdiction. Nonetheless, although habitual residence is increasingly being used as an alternative connecting factor, it would be wrong to induce a general substitution of habitual residence for domicile. For the connection between a person and a country provided by habitual residence is not sufficiently strong to justify that persons affairs always being determined by the law of that country.

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(1868) L.R 1 Sc & Div. 307

Ordinary Residence “Ordinary Residence” has been known as a connecting factor in English law for some time. It used to forma basis for service of a claim form out of the jurisdiction; it used to be a basis of jurisdiction in matrimonial causes in the case of a petitioning wife; it used to be a criterion for obtaining security for costs; it is a significant connecting factor for the purposes of immigration and social security law; it is an important connecting factor in taxation statutes; it has been the criterion used for determining eligibility for a mandatory student award from the local authority; used as the basis for determining whether a student is a home or overseas student for the purpose of payment of university fees, and for designating the local authority to be responsible in a care order. There is some authority on the meaning of “ordinary residence”, though its precise meaning has caused difficulty. One judge went so far as to say that the adjective adds nothing to the noun. Lord Scarman in giving the judgment of the House of Lords in Shah v Barnet London Borough25, said that this adjective brings out two important features of ordinary residence, namely residence must be adopted voluntarily, i.e. not by virtue of kidnapping or imprisonment, and for settled purposes, which can include for the purposes of “education, business or profession, employment, health, family or merely love of the place”. The words “ordinary residence” should be given their natural and ordinary meaning, and not an artificial legal construction, which will be the same regardless of context unless it can be shown that the statutory framework requires a different meaning. Ordinary residence does not connote continuous physical presence, but physical presence with some degree of continuity, notwithstanding occasional temporary absences. It is a question of construction of a statute whether the word “lawful” should be implied so as to qualify the ordinary residence. Moreover, it can be argued that, as a matter of general principle, a person should not benefit from his own unlawful conduct. Each case must, of course, depend on its own peculiar facts but the authorities show that even absence for a considerable time will not terminate a person‟s ordinary residence if it is due to some specific and unusual cause. Again, the significance of a comparatively prolonged absence will be weakened if, during the relevant period, the propositus has maintained a house or flat in England ready for immediate occupation.

Habitual Residence The courts have repeatedly followed the judgment of Lord Scarman in R v Barnet London Borough Council, ex p Shah26 , holding that there is no difference in principle between the traditional concept of ordinary residence and the more fashionable concept of habitual residence and that they both refer to a person‟s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order 25 26

[1983] 3 All ER 226 [1982] Q.B. 688

of his life for the time being, whether of short or of long duration. Habitual residence is a concept without the various legal artificialities of domicile, such as the doctrine of revival and analogies with that concept are not appropriate. Residence

Before a child or adult can be habitually resident in a country he must be resident there. This does not necessarily require physical presence at all times. Temporary absence, for example on holiday or for educational purposes or for an attempt to effect reconciliation with an estranged spouse will not bring an end to habitual residence. Indeed, it can continue despite considerable periods of absence. A habitual residence in England has been held to continue despite a period of some two years nine months residing in Hong Kong. However, it is a question of statutory construction whether the world “lawfully” should be implied into a statutory provision which uses the concept of habitual residence. Indeed, it is only right that persons with longstanding links with England should have their personal affairs dealt with in England and subject to English Law. A Period of Time

The formulation in Re J (A minor) (Abduction: custody rights) requiring residence for a n appreciable period of time, has been followed in numerous cases. However, more recently the House of Lords in Nessa v Cheif Adjudication Officer27 has adopted rather different wording. Lord Slynn said that, as a matter of ordinary language, a person is not habitually resident in any country unless that person has taken up residence and lived there for a period which shows that the residence has become “habitual” and will or is likely to continue to be habitual. It follows that there may be a gap between habitual residence in one state and acquisition of habitual residence in another. A person may have no habitual residence at all. However, it may be that for the purposes of making a particular legislation effective, an example being the founding of jurisdiction, it may be necessary that a person is habitually resident in some state. In other words, there would not be a gap. It is a question of fact whether and when the requisite habitual residence has been established. This depends very much on the circumstances of the particular case. In V v. B (A minor) (Abduction) an habitual residence was acquired after less than three months‟ residence in Australia, the parties according to the plaintiff, having decided to settle there. A settled intention

There must be a degree of settled intention or purpose. This is not concerned with being settled in a country. There is no need to show a person intended to stay there permanently or indefinitely. The settled intention can be for a limited period, a period limited by the immediate purpose such as employment, even short-term employment of no more than six months. Thus a person can be habitually residence in a country even though he 27

[1999] 1 WLR 1937

intends at some future date to move to another country. In Watson v Jamieson28 there was a settled purpose where children went to live with their father in Scotland for two years, the understanding between he separated parents from the outset being that the children would then go to live with their mother, who lived in New Zealand for two years. The children were held to be habitually resident in Scotland. The longer the period of residence, the easier it becomes. Thus in M v M (Abduction: England and Scotland) it was clearly important in finding this settled purpose that the parties had actually been living in Scotland for as long a period as two years. In these cases involving a period of short residence, the residence was for a temporary purpose and this was fatal to the acquisition of a habitual residence. When it comes to establishing an intention to settle, this was shown in one cases by the fact, inter alia, that the family furniture was sent to that country. Voluntarily

There is a further requirement in relation to adults that the residence must have been voluntary. A serviceman who is stationed on a base abroad can be regarded as voluntarily resident in that country (he could have left the armed forces if he did not want to accept the posting) and, having made the family home there, he and his family will take this country as their habitual residence. Abandonment

A person can cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return it but to take up long term residence in another country instead. For example, in Moran v Moran the parents, who were habitually resident in California, agreed that the mother and child should return to Scotland for a year, whilst the father remained in California to deal with business problems. It was held that the child‟s habitual residence ceased as from the date of departure from California. The abandonment of a habitual residence can take place without acquisition of another habitual residence somewhere else, with the inevitable result that a person has no habitual residence. Moreover, because an habitual residence can be abandoned in one day but not acquired until there has been residence for a period showing that residence has become habitual, this gap when there is no habitual residence will correspondingly last for that period. It has even been accepted that, exceptionally, for the purposes of making particular legislation effective, it may be necessary to ensure that there is no gap. Children

The habitual residence of a child is not fixed but may change according to the circumstance of the parent or other principal carer with whom the child lives and who is lawfully exercising rights of custody. If the parents are living together and the child is living with them it will take the parents habitual residence. There is a problem if the child is born abroad whilst on holiday to parent‟s habitual resident in England. It has been said, 28

1998 SLT 180

obiter, that in these circumstances it is possible for the child to take a habitual residence in England from Birth. If both parents have joint parental responsibility, neither parent can unilaterally change the child‟s habitual residence by removing or retaining it wrongfully and in breach of the other party‟s rights. Both parents must consent to the change of habitual residence. In the unusual situation where a married couple lived with the children, and yet each parent had a different habitual residence, the habitual residence of the children could only change if the parents had a common intention to change their residence. It follows that before a child can be habitually resident in a country it must be resident there. Thus for a child‟s habitual residence to change to that of another country the child has to leave the country in which he is resident and reside in that other country. If one parent has sole lawful custody for the child, his situation with regard to habitual residence shall be the same as that of this parents. According to the Court of Appeal, in Re M (Minors) (Residence Order: Jurisdiction) a lawful custody refers to the child being in the physical care of that parent. If a child has been made a ward of the court, a parent cannot then change its habitual residence without leave of the court. It is not clear at what age a person ceases to be a child for the purposes of habitual residence but it is likely that this is at 16. As with an adult, a child may have no habitual residence.

REFORMS Attempts in the 1950s and 1960s at the wholesale reform of the law of domicile were unsuccessful because they were thought to be too radical. More recently, the English and Scottish Law Commissions put forward in a join Report a set of proposals for reform of the major rules which, at least as regards the ease of change of domicile were more conservative. The Law Commission started off on the basis that it should be a little easier to acquire a new domicile. To achieve this, it was proposed that the standard of proof in all acquisition cases should be the normal civil standard, and that it should be sufficient to show that a person intended to settle in the country in question for an indefinite period. When it comes to domicile issues other than that of ease of change of domicile, a bolder line was taken which would have led to major improvements in the law. The domiciles of origin, choice and dependency would have been abolished, to be replaced by a domicile for children and a domicile for adults. This would have greatly simplified the law. No special tenacity would have been given to the domicile received at birth and the doctrine of revival would have been replaced by a rule that an adult‟s domicile would continue until another domicile was obtained. All in law, the Law Commissions‟ proposals represented “a further important step in the process of improving the structure, effectiveness and fairness of the rules of domicile”, and were supported by the judges of the Family Division. In Scotland, the law in relation to the domicile of persons under 16 has been reformed. Influenced, at least in part, by the Law

Commissions‟ proposals, Scots law provides that were the parents are domiciled in the same country and the child has a home with a parent or with both of them, the child is domiciled in the same country as its parents.