ASSIGNMENT Domicile, Assignments of Law

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ASSIGNMENT

Domicile

YASHPAL YADAV

LLB 3 YEAR 5TH SEM

INTRODUCTION

Domicile is considered to be a connecting factor which links a person with a particular legal system. This legal system includes his personal law which determines the legal capacity of that person as for example whether that person has the legal capacity to marry or how the property of a deceased person is to be distributed. For instance a married man domiciled in England is under the jurisdiction of England for purposes of dissolving or annulling his marriage. The concept of domicile is not just confined to conflict of laws but also extends to tax law and in fact many leading judgments defining domicile are tax cases. Definition of Domicile: The general meaning of domicile is ‘permanent home’. But Lord Cranworth V-C in Whicker v Hume has defined domicile as, “By ‘domicile’ we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it. I think the best I have heard is one which describes the home as the place (I believe there is one definition in which the ‘lares’ are alluded to), the place ‘unde non sit discessurus si nihal avocet; unde cum profectus est, peregrinari videtur.’ I think that it is the best illustration, and I use that word rather than definition, to describe what I mean.” Therefore a person is said to have home in a country where he resides permanently without any intention of moving. On the other hand a person does not cease to have his permanent home in a country merely because he is temporarily residing elsewhere.

The concept of domicile in common law is derived from the Roman law and the usus modernus through the Canon law. According to a modern Canonist, “The term domicilium is derived from domum colere, to foster or inhabit the home. Domicile is not any place of residence but a place of habitual residence.” At that time the ordinary man’s Diocese had authority over him in the Consistory Court in England and a man’s domicile in a Diocese was established by his habitual residence. The Bishop of the Diocese of the domicile had jurisdiction in religious causes and in England this included probate and matrimonial jurisdiction even before the Matrimonial Causes Act 1857 and the Court of Probate Act 1857. English statutes dealing with marriage characterise the place where a man dwells, of his dwelling place; and domicilium is a habitation or a dwelling. Therefore domicile is a place of residence in a Diocese in Roman Canon law and in the English Canon law from which the English notion of domicile has evovled. Importance of Domicile: Domicile not only acts as a connecting factor but it also has an exclusively extended role. It can be used as a jurisdictional link which is a pre-requisite for assumption of jurisdiction by the forum or for recognition and assumption of a foreign court’s jurisdiction. It also determines an individual’s right to vote, his right to hold public office, his entitlement to support in respect of various needs such as ill-health or unemployment and his liability to various forms of taxation. Therefore there is no person without a domicile because it is necessary to connect a person with some legal system to regulate his legal relationships. Principles Governing Law of Domicile:

There are five fundamental principles which govern the law of domicile. First principle is that nobody shall be without a domicile. The law assigns a domicile of origin to every person at the time of his birth, i.e. to a legitimate child the domicile of the father, to an illegitimate child the domicile of the mother, and to a foundling the domicile of place where he is found. This domicile of origin continues until a new domicile i.e. domicile of choice is acquired. Secondly, a person cannot have two domiciles at a time. Thirdly, domicile connects a person with a single system of territorial law but it does not necessarily signify a system that prescribes the same principles for all the classes of persons. As for instance in India different rules will apply to different categories of population according to their religion, race or caste. Fourthly, there is presumption in favour of the continuance of an existing domicile. And the fifth and final rule is that the domicile of a person is to be determined according to the English and not in accordance with the foreign concept of domicile, subject to certain statutory exceptions. Development of Domicile of Origin: As mentioned earlier, domicile of origin is a domicile ascribed to a person when he is born. Lord Westbury remarked in Udny v Udny: “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 his father, if the child be legitimate, and the domicile of the mother if illegitimate.”

Although the principle of domicile of origin was finally established in Udny v Udny, but it has come a long way since then and has carried on proving its strength and significance since then. 2.2) Tenacity and Revival of Domicile of Origin under English Law: The concept of domicile of origin is well entrenched by the Victorian judges and it is argued that its rules have been quite satisfactory as reflecting social factors. One acquires it at the time of his birth and because of its strong tenacity it is hard to lose and it automatically revives once domicile of choice is lost without acquiring a new domicile of choice. 2.2.1 Tenacity of Domicile of Origin: One of the very distinctive features of the domicile of origin is its tenacity and persistence. It is hard to lose as compared to other two kinds of domiciles which is obvious from the fact that it requires strong evidence to prove its loss where as it is less onerous to prove change of other types of domiciles. It has proven to be more tenacious in a way that even if a person leaves his country of origin with an intention never to return back, his domicile of origin survives until he has acquired a domicile of choice. In Bell v Kennedy, Bell had a Jamaican domicile of origin but after leaving Jamaica, he was uncertain whether to settle on Scotland or England. Therefore the House of Lords held that he had not lost his Jamaican domicile of origin. The tenacity and persistence of domicile of origin implies that it returns as ‘boomerang’ during a person’s lifetime and even after his death, for instance in succession matters. One of the

remarkable cases in this regard is Poingdestre v Sherman, Re O’Keefe (Dec’d), where Mary O’Keefe was born in India, kept her British citizenship all her life, spent forty seven years of her life in Italy where she died. But the court held that she had an Irish domicile of origin at the time of her death although, the only connection between Mary and Ireland was her three weeks visit in Ireland and the fact that her father was born in Ennis, Co Clare. Despite the fact that her father had acquired a new domicile of choice but due to her failure to acquire a new domicile she was deemed to be domiciled in the place where her father was domiciled at the time of her birth. This case indicates that a person can retain the domicile of his origin even when he has no connection with the country of his origin. a) Case Law: The English courts have stressed on the tenacious character of domicile of origin since centuries which can be seen from the following cases. There are many leading cases which illustrate the tenacity and continuance of domicile of origin. In Winans v Attorney-General, the House of Lords held that a man of American domicile of origin who spent his last thirty eight years of his life in England has not acquired a domicile of choice of England. He has retained his domicile of origin as he had hope to go back to America. He intended to return to Baltimore where he was setting up a business and also dreamed of acquiring a large house in order to live and work there for the whole scheme. According to Lord Macnaghten: “When he came to this country he was a sojourner and a stranger, and he was I think a sojourner and a stranger in it when he died.”

The courts had changing attitude towards the standard of proof required to establish the change in the domicile of origin. The presupposition against the recognition of a change of domicile in Winans v Attorney-General, Ramsay v Liverpool Royal Infirmary and IRC v Bullock is a strong one and a very high standard of proof has been demanded to establish such change. The burden of proof is remarkably heavy whenever a change of domicile of origin is alleged. But recently, the courts have changed their attitude towards the harshness of the proof and numerous judges have indicated that the burden of proof is not that heavy as it was used to be in the past. In Henderson v Henderson and Cramer v Cramer it was said that a higher standard of proof was required to establish the change in domicile of origin. In Henderson v Henderson, Sir Jocelyn P has even gone beyond that and suggested that when change in domicile of origin is alleged, “the standard of proof goes beyond a mere balance of probabilities.” But Scarman J in Re Fuld(No.3) agreed with the Court of Appeal in Buswell v IRC, rejecting the standard required in criminal cases.These few cases in the past illustrate that domicile of origin is not that tedious to lose and it is not that difficult to prove that change in one’s domicile of origin. 2.2.2 Doctrine of Revival of Domicile of Origin: Domicile of origin has a special characteristic that although it can be replaced by domicile of choice or dependence but it is never lost permanently rather it becomes dormant. Where domicile of choice is abandoned without acquisition of new domicile of choice, domicile of origin is revived. The concept of domicile is very vital because of this revival rule. Domicile of origin remains in the background held in abeyance ever ready to come into action once a person has lost his domicile of choice. The reason is that in many cases the domicile of choice is difficult to ascertain because of complexity

in proving the acquisition of domicile of choice which requires not only the intention to reside for indefinite period of time but also the physical presence. Thus if requirements essential to establish the domicile of choice are lacking, the domicile of origin revives. The doctrine of revival of domicile of origin dates from the middle of the nineteenth century. The rule of revival of domicile of origin on abandonment of domicile of choice was illustrated in Udny v Udny by House of Lords in 1869. Later in Tee v Tee the rule of revival was followed, where a man of English domicile of origin acquired a domicile of choice in United States of America. Afterwards he went to work in Germany but did not acquire new domicile of choice there since at first his intention was to go back to States but then he decided to settle in England permanently. He commenced divorce proceedings in English courts while he was still in Germany. It was held by the court of law that he lost his American domicile while he was still in Germany and did not acquire a new one in Germany as he decided not to return back to America. Therefore his English domicile of origin revived automatically once he decided to in settle in England permanently. The English courts have considered it to be an important concept as evident from the cases narrated supra. It can be inferred that automatic revival rule plays a vital role in filling the gap between the deliberate abandonment of one domicile of choice and the acquirment a new domicile of choice. It can also clear that domicile of origin can not be abandoned completely. Even if it is replaced by a domicile of choice, it is not lost completely. In Harrison v Harrison, Harrison had a