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Domicile (law)

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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).

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.

Description

In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children became adults at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go.

Domicile is governed by lex domicilii, as opposed to lex patriae which depends upon nationality, which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two may be the same. However:

  • Where the country is federated into separate legal systems, citizenship and domicile will be different. For example, one might have United States citizenship and a domicile in Kentucky, or Australian citizenship and a domicile in Tasmania.
  • 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 of laws and other private law matters.

General principles

A person can have only one domicile at any given time, and the manner in which it could change was explained in 1869 in the House of Lords by Lord Westbury in Udny v Udny:

It is a settled principle, 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 the father if the child be legitimate, or the domicile of the mother if illegitimate. This has been called the domicile of origin, and it is involuntary. Other domiciles are domiciles of choice, for, as soon as the individual is sui juris, it is competent to him to elect and assume another domicile, the continuance of which depends upon his will and act. When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile. But as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose, that it is capable of being, by the mere act of the party, entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto in the manner which is necessary for the acquisition of a new domicile of choice.

Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the unlimited intention of continuing to reside there. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen and not prescribed or dictated by any external necessity such as the duties of office, the demands of creditors, or the relief of illness. And it must be residence fixed not for any defined period or particular purpose, but general and indefinite in its future duration. It is true, that residence originally temporary, or intended only for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose or the animus manendi may be inferred, the fact of domicile of origin may be extinguished by act of law, as, for example, by sentence of death, exile, and perhaps outlawry, but it cannot be destroyed by the act of the party. Domicile of choice, if it is gained animo et facto, may be put an end to in the same manner.

Expressions are found in some books in one or two cases, to the effect, that the first domicile remains until another is acquired. This is true, if applied to the domicile of origin, but it cannot be true if such general words were intended (which is not probable) to convey the conclusion, that a domicile of choice, though unequivocally relinquished and abandoned, clings, in spite of his will and act. to the party until another domicile has animo et facto been acquired. The cases to which I have referred are in my opinion met and controlled by other decisions, but more especially by the reason of the thing. A natural born Englishman may, if he domiciles himself in Holland, acquire the status civilis of a Dutchman, which is of course ascribed to him in respect of his settled abode in Holland, but if he breaks up his establishment, sells his house and furniture, discharges his servants, quits Holland, declaring that he will never return to it again, and taking with him his wife and children for the purpose of travelling in France or Italy in search of another place of residence, can it be said, that he carries his Dutch domicile on his back, and that it clings to him pertinaciously until he has finally set up his tabernacle in another country? Such a conclusion would be absurd. But there is no absurdity, but, on the contrary, much reason in holding, that an acquired domicile may be effectually determined by an unequivocal intention and act, and that, when it is so determined, the domicile of origin instantly revives, and continues until a new domicile of choice is acquired.[1]

Depending on a person's circumstances, it has historically been based upon the following principles:[2]

Type How acquired
Domicile of origin
  • the father's domicile, where the father was alive at the child's birth
  • the mother's domicile, where the father was not alive at the child's birth, or where the child was illegitimate
  • where the parents were not known, the domicile was the place in which the child was found
Domicile of choice
  • when a child reached the age of majority, and had subsequently settled in another jurisdiction with the intention of making it his permanent home
  • when a person moves away from a domicile of choice with the intention of settling in another jurisdiction, but has not yet done so, his domicile reverts to the domicile of origin until settlement in a new permanent home has taken place
Domicile of dependency
  • a child's domicile would change when the relevant parent had acquired a new domicile of choice[a]
  • a wife would acquire her husband's domicile upon marriage
  • a person born mentally incapacitated, or becomes mentally incapacitated while still a minor, continues to be treated in the same way as a dependent child until the incapacity no longer exists[3][b]

Application

A person's domicile can have important personal consequences:

  • A marriage is valid only where properly performed under the law of the jurisdiction in which it takes place, as well as under the law applicable to each of the participants in effect in their respective domiciles.[5][c]
  • If someone is an infant and therefore has reduced contractual capacity, that reduced capacity will tend to apply wherever they go.
  • 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.[6]
  • Historically, divorce could only take place in the domicile of the parties concerned.[7]

There is tension between "domicile of origin" and "domicile of choice" which arises out of the fact that the latter can only be acquired through fulfilling both:

  • the ability to settle permanently in another place, and
  • the intention to remain there permanently.

The ability to settle permanently has been held to arise only when one can become a permanent resident of the jurisdiction for immigration purposes. For example, suppose that A came from England to Canada on a visa to work for an employer in Ontario. While there, his son B is born. A likes Canada enough to have his status changed to that of landed immigrant. When B comes of age, he decides to leave Ontario for good, but dies before settling permanently elsewhere. B's domicile of origin is England, because of A's initial inability to settle permanently in Ontario. When A obtains permission to land, Ontario becomes his domicile of choice, and B (provided he is still a minor) automatically acquires it as a domicile of dependency. When B attains the age of majority, Ontario becomes his domicile of choice until he decides to leave for good, at which time it reverts back to the domicile of origin. His new domicile of choice would only occur once he had been able to settle permanently in a new jurisdiction.[8]

However, it is more difficult to abandon a domicile of choice than to acquire it. In the case of abandonment, both the above conditions must be fulfilled simultaneously as they are interrelated, whereas they are discrete in the latter case of acquisition.[6]

The lack of intention to remain permanently can lead to unexpected results:

A, whose domicile of origin was England, went to India where he had a legitimate son B. B, while resident in India, had a legitimate son C who also, while resident in India, had a legitimate son D. A, B and C intended to return to England when they retired at sixty years of age, but they all died in India before reaching that age. D's domicile of origin remains England, even though he has never lived there.[9]

The law in specific jurisdictions

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

Canada

Until the passage of the Divorce Act in 1968,[10] divorce could only be obtained in the province of domicile, which effectively required those domiciled in Quebec and Newfoundland to obtain divorce only through an Act of the Parliament of Canada.[11] The 1968 Act required Canadian domicile only, with one year's residence in the province where the divorce order was sought, and the later 1986 Act[12] removed the domicile requirement completely.

When later court proceedings revealed complications arising from the impact of domicile on the validity of same-sex marriages solemnized in Canada,[13] the Civil Marriage Act was amended in 2013 to provide for divorce to be available to nonresident spouses in the province where the marriage took place.[14]

Outside of marriage and divorce, rules relating to domicile generally fall under provincial jurisdiction. The Civil Code of Quebec standardizes rules for that province,[15] while Manitoba is the only common-law province to attempt to completely revise and simplify the rules within its scope.[16] Other provinces have modified their rules as the need arose.

Ontario has modified the following rules relating to domicile:

  • Effective 1 January 1959, the domicile of origin for an adopted child was declared to be that of its adoptive parents, "as if the adopted child had been born in lawful wedlock to the adopting parent."[17]
  • On 31 March 1978, the doctrine of illegitimacy was abolished,[18] as well as the rule deeming a married woman's domicile to be that of her husband's,[19] and the rules governing the domicile of minors were simplified.[20]
  • Effective 1 March 1986, the rules governing the domicile of minors were simplified further.[21]

Common law rules in India

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

Under the common law a married woman was deemed to have the same domicile as her husband, so the domicile of origin of the children of the marriage was the same as that of their father and the time of birth. Children gained their mother's domicile if their father was predeceased or they were born outside marriage. An orphan has the jurisdiction over the original domicile where he or she was found.[22]

Every adult (other than married women) can change their domicile by leaving the jurisdiction of the prior domicile with an intention of permanently residing somewhere else. This is referred to as a domicile of choice. A domicile of choice can be abandoned if a new domicile of choice is acquired or if the domicile of origin revives.[23][24]

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

A child's domicile is dependent and, therefore the same, as the adult on whom he or she is dependent.[25]

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").[26]

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.[27]

United Kingdom

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

England and Wales

The Domicile and Matrimonial Proceedings Act 1973[28] abolished the rule that a married woman had the domicile of her husband (with transitional rules for those married before 1 January 1974), as well as reforming the rules dealing with the domicile of minors.[29]

Scotland

The rules for persons under 16 for the particular purposes of some Scottish family law are dealt with in the Family Law (Scotland) Act 2006,[30] but this does not by itself fix the domicile for general purposes.

Northern Ireland

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

For taxation purposes

Income tax and inheritance tax are applied at first instance to those who are domiciled in the UK. Recent legislative reforms have changed the manner in which Her Majesty's Revenue and Customs applies the concept of domicile for such purposes:[31]

  • For income tax purposes, those who are UK-domiciled are taxed on their worldwide income, while those who are UK-resident but not UK-domiciled can opt to have taxed on a remittance basis non-UK income that is repatriated from abroad,[32] subject to the payment of a remittance basis charge.[33]
  • For inheritance tax purposes, those who are UK-domiciled are taxed on their worldwide estate, while those who are not can be taxed on that part of the estate that is located there. UK domicile is deemed to exist where a person has been UK-resident for at least 17 of the past 20 years,[34] and is deemed to continue to exist for up to three years after the acquisition of a new domicile.[34] A spouse or civil partner may elect to be deemed as so domiciled.[35]

In 2015, Her Majesty's Treasury proposed further changes to the deemed domicile rules, which went through two rounds of consultation.[39] In its response in December 2016,[40] the UK's government announced the following changes would form part of the next Finance Bill, effective on or after 6 April 2017, declaring that deemed domicile will extend to the following classes of persons:[41]

  • For purposes of income tax and capital gains tax:[42]
    • Where an individual was born in the UK with a UK domicile of origin, and is UK resident in the relevant tax year, or
    • Where an individual has been UK resident for at least 15 of the last 20 tax years immediately preceding the relevant tax year, except where that individual is not UK resident in the relevant tax year and there is no tax year beginning after 5 April 2017 and preceding the relevant tax year in which the person was UK resident.
  • For purposes of inheritance tax, where an individual has been UK resident for at least 15 of the last 20 tax years immediately preceding the relevant tax year, and for at least one of the four tax years ending with the relevant tax year.[43]

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.[44]

See also

Further reading

  • The full text of 1911 Encyclopædia Britannica/Domicile at Wikisource
  • Collins, Lawrence (2006). Dicey Morris & Collins on the Conflict of Laws (14th ed.). London: Sweet & Maxwell. ISBN 978-0-42188360-4.
  • Private International Law: The Law of Domicile (PDF). Law Commission and Scottish Law Commission. 1987. ISBN 0-10-102002-3.
  • "Rules for determining domicile" (PDF). hkreform.gov.hk. Law Reform Commission of Hong Kong. April 2005.

Notes

  1. ^ and thus, if a legitimate child had acquired a domicile of origin from its father, its domicile of dependency would continue to be concurrent with its father's, even if it stayed with its mother after separation of the parents
  2. ^ conversely, an adult person retains the domicile existing at the time he becomes mentally incapacitated, until such time as the incapacity no longer exists[4]
  3. ^ meaning than a person who is domiciled in a jurisdiction that only allows monogamous marriage (such as England) is unable to enter into a polygamous marriage in Saudi Arabia

References

  1. ^ George Udny v John Henry Udny of Udny [1869] UKHL 2_Paterson_1677, (1869) LR 1 HL 441 (3 June 1869), pp. 1686–1687
  2. ^ Law Comms 1987, pp. 4–7.
  3. ^ HK Law Reform Comm 2005, p. 16.
  4. ^ HK Law Reform Comm 2005, pp. 15–16.
  5. ^ Swan, Angela (January 16, 2012). "Marriage and Divorce in the Conflict of Laws". slaw.ca.
  6. ^ a b Robertson, Gerald B. (2010). "The Law of Domicile: Re Foote Estate". Alberta Law Review. 48 (1): 189–194., at 194, discussing the rule expressed in IRC v Duchess of Portland [1982] 1 Ch 314, endorsed in Re Foote Estate, 2009 ABQB 654 at par. 508 (13 November 2009)
  7. ^ HK Law Reform Comm 2005, p. 15.
  8. ^ Hill, Jonathan; Ní Shúilleabháin, Máire (2016). Clarkson and Hill's Conflict of Laws (5th ed.). Oxford University Press. p. 323. ISBN 978-0-19-106982-6.
  9. ^ HK Law Reform Comm 2005, p. 17.
  10. ^ S.C. 1968-69, c. 24
  11. ^ The full text of Parliamentary Notice, January 13, 1868 at Wikisource
  12. ^ S.C. 1986, c. 4
  13. ^ Kirkby, Cynthia (9 March 2012). "Legislative Summary of Bill C-32: An Act to Amend the Civil Marriage Act". Library of Parliament.
  14. ^ Civil Marriage of Non-residents Act, S.C. 2013, c. 30
  15. ^ Civil Code of Quebec, art. 75–83
  16. ^ The Domicile and Habitual Residence Act, CCSM , c. D96
  17. ^ The Child Welfare Act, 1954, S.O. 1954, c. 8, s. 74, as inserted by The Child Welfare Amendment Act, 1958, S.O. 1958, c. 11, s. 3
  18. ^ The Children's Law Reform Act, 1977, S.O. 1977, c. 41
  19. ^ The Family Law Reform Act, 1978, S.O. 1978, c. 2, s. 65
  20. ^ 1978 Act, s. 67
  21. ^ Family Law Act, 1986, S.O. 1986, c. 4, s. 67
  22. ^ Dicey Morris & Collins 2006, par. 6R-025.
  23. ^ Dicey Morris & Collins 2006, par. 6R-033 and 6R-074.
  24. ^ Fawcett, James; Carruthers, Janeen; North, Peter (2008). Cheshire, North & Fawcett: Private International Law (14th ed.). London: Oxford University Press. p. 157. ISBN 978-0-19-928438-2.
  25. ^ Dicey Morris & Collins 2006, par. 6R-078.
  26. ^ Sun Printing & Publishing Association v. Edwards, 194 U.S. 377 (1904)
  27. ^ Hertz Corp. v. Friend, No. 08-1107, 559 U.S. ___ (2010)
  28. ^ "Domicile and Matrimonial Proceedings Act 1973", legislation.gov.uk, The National Archives, 1973 c. 45
  29. ^ Kessler, James (2013). Taxation of Non-Residents and Foreign Domiciliaries (12th ed.). Oxford: Key Haven Publications plc. ISBN 978-1-90161459-6.
  30. ^ Family Law (Scotland) Act 2006, 2006 asp 2, at s. 22
  31. ^ "Guidance Note: Residence, Domicile and the Remittance Basis" (PDF). Her Majesty's Revenue and Customs. June 2016.
  32. ^ "Helpsheet 264: Remittance basis (2015)". Her Majesty's Revenue and Customs. 24 August 2016.
  33. ^ "SA109: Residence, remittance basis etc notes" (PDF). Her Majesty's Revenue and Customs. 2016. pp. 10–11.
  34. ^ a b Inheritance Tax Act 1984, s. 267
  35. ^ Inheritance Tax Act 1984, s. 267ZA, as inserted by the Finance Act 2013, s. 177.
  36. ^ a b "Non-UK domiciliaries: Inheritance tax issues and opportunities" (PDF). Charles Russell Speechlys LLP. May 2015.
  37. ^ Constitutional Reform and Governance Act 2010, Part 4
  38. ^ Slevin, Kevin (19 May 2011). "Not quite the same" (PDF). Taxation. pp. 6–8.
  39. ^ "Reforms to the taxation of non-domiciles". HM Treasury. 19 August 2016.
  40. ^ "Reforms to the taxation of non-domiciles: responses to further consultation" (PDF). HM Treasury. December 2016.
  41. ^ "Draft provisions for Finance Bill 2017" (PDF). HM Treasury. December 2016.
  42. ^ 2017 draft Finance Bill, s. 40
  43. ^ 2017 draft Finance Bill, s. 41
  44. ^ "China" (PDF). KPMG. 2011. p. 2.
  1. Taxation of Non-Residents and Foreign Domiciliaries in UK law
  2. - HM Revenue and Customs (Official Website)
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