Domicile (law)

In law, domicile is the status or attribution of being a lawful permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after he has left it, if he has maintained sufficient links with that jurisdiction or has not displayed an intention to leave permanently (i.e., if that person has moved to a different state, but has not yet formed an intention to remain there indefinitely). 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.[1]

Traditionally many common law jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws and would, for example, only recognize a divorce conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted.

Outline of the concept

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 become adult 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. Hence, if according to the laws of their domicile a person has the right to marry multiple spouses, the marriages should not alternate between valid and invalid every time they cross a state boundary where the laws are different. If someone is an infant and therefore has reduced contractual capacity, that will tend to apply wherever they go. Furthermore, when a person dies, it is the law of their domicile that determines how their will is interpreted, or if the person has no valid will, how their property will pass by intestate succession.

Domicile should be distinguished from 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, where the country is federated into separate legal systems, nationality and domicile will be different. For example, one might have American nationality and a domicile in Texas, or British nationality and a domicile in Scotland. Further, one can have dual nationality but not more than one domicile at a time. A person may have a domicile in one state while maintaining nationality in another country. Unlike nationality, no person can be without a domicile even if stateless.

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 and other private law matters.

“Domicile” has a somewhat technical legal meaning in common law jurisdictions and should not be confused with: (1) “Domicile” in civil law jurisdictions. (2) “Domicile” in EU regulations and international treaties (where a definition often overrides the common law sense of domicile). (3) “Domicile” in ordinary English usage.

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:

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 predeceased or they were born outside marriage. An orphan has the jurisdiction over the original domicile where he or she found.[2]

Every adult (other than married woman) 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.[3][4]

A married woman can only get domicile and other cast certificates from her husband jurdiction.

A child's domicile is dependant and, therefore the same, as the adult on whom he or she is dependent.[5]

The law in specific jurisdictions

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").[6]

United Kingdom

The United Kingdom contains three jurisdictions. The matter of domicile relating to both domestic and international law is covered with some degree of detail in official publications such as e.g. "Private International Law - The Law Of Domicile" [1987, The Law Commission and the Scottish Law Commission (Law Com. No.168)(Scot. Law Com. No.107)]; current general information is available from Her Majesty's Revenue and Customs as a consequence of the almost inevitable change of tax status caused by an event enabling a change of domicile or where laws vary between jurisdictions . 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 reassets 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

Married women

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).

Minors

The rules dealing with the domicile of minors are dealt with by the Domicile and Matrimonial Proceedings Act 1973.[7]

Scotland

Family Law

The rules for persons under 16 for the particular purposes of some Scottish family law are dealt with in s.22 (Domicile of persons under 16) 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.

Austria and Germany

Hauptwohnsitz is the name of the concept of main domicile in Austrian and German law. However, like in many civil law jurisdictions, the concept of domicile does not have the same broad scope in German law. Instead, many of the effects that common law jurisdictions attach to domicile are attached to nationality under German conflict of laws rules.

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.[8]

See also

References

  1. ↑ http://www.law.cornell.edu/supct/html/08-1107.ZS.html
  2. ↑ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-025.
  3. ↑ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-033 and 6R-074.
  4. ↑ Private International Law, Cheshire, Northa & Fawcett, 14th ed., page 157.
  5. ↑ Conflict of Laws, Dicey Morris & Collins, 14th ed., para 6R-078.
  6. ↑ Sun Printing & Publishing Association v. Edwards, 194 U.S. 377 (1904).
  7. ↑ Taxation of Non-Residents and Foreign Domiciliary 12th ed 2013, James Koestler QC (for UK law).
  8. ↑ "China" (PDF). Retrieved 2012-03-05.

External links

  1. Taxation of Non-Residents and Foreign Domiciliaries in UK law
  2. - HM Revenue and Customs (Official Website)
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