Domicile

DOMICILE

In Re Fuld [1968] P 675 Scarman J explained that the legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention.

Everybody has a domicile of origin, which may be supplanted by a domicile of choice.

He noted two particularly important features of domicile which are relevant to this case:

"First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned.

Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time." [As pointed out by Buckley LJ in IRC v. Bullock [1976] 1 WLR 1178 at 1184H Scarman J's formulation "for an unlimited time" requires some further definition].

After reviewing the more important authorities and noting the need in each particular case for "a detailed analysis and assessment of facts" in relation to the subjective state of mind of the individual in question, Scarman J stated the law in terms which this court should expressly approve (page 684F-685D)

"(1) The domicile of origin adheres unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice;

(2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact - of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities.

(3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres…."

(Courtesy: <www.Bailii.org> England and Wales Court of Appeals [2010] EWCA Civ 335.

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