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).

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:

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:

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

TypeHow 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[lower-alpha 1]
  • 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][lower-alpha 2]

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][lower-alpha 3]
  • 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 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]

In extraterritorial jurisdiction

Certain anomalous jurisprudence occurred where persons lived abroad in cases relating to extraterritorial jurisdiction. The East India Company was declared to be equivalent to a foreign government, and persons engaged in service to it for an indefinite period were deemed to have acquired Anglo-Indian domicile.[10] Persons in the service of the Crown, as well as independent traders, could not acquire this status.[11][12] As a consequence of the Indian Mutiny, the Company ceased to function as a government upon the passage of the Government of India Act 1858, and such domicile was not capable of being acquired thereafter.[10]

Unsuccessful attempts were made to adapt that case law to other circumstances. In 1844, Stephen Lushington of the Consistory Court observed in dicta that, in the case of the Ottoman Empire, "every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the dominions of the Porte."[13][14] Similar statements were expressed by the Court of Chancery in 1883 in rejecting the concept of an Anglo-Chinese domicile, where Chitty J of the Court of Chancery stated that "There is no authority that I am aware of in English law that an individual can become domiciled as a member of a community which is not the community possessing the supreme or sovereign territorial power."[15][16] This was later endorsed by Judicial Committee of the Privy Council in 1888, in holding that "residence in a foreign country, without subjection to its municipal laws and customs, is therefore ineffectual to create a new domicile."[17]

The reasoning behind such decisions was never satisfactorily explained,[18] and the House of Lords later held in 1918 that these rulings built on dicta were wrongly decided and were thus swept aside.[19] In holding that domicile in a foreign State could be properly acquired in such circumstances, Lord Finlay LC declared:

Commercial domicile and prize law

The rules governing civil domicile have on occasion been confused with those governing commercial domicile that appear in public international law which come into play in time of war,[21] with emphasis on the area of prize law,[22] where a merchant's status as an enemy or neutral come to be determined in the courts of a belligerent state.[21] The two sets of rules are fundamentally different.[23] The basic principles that apply are:

  • Commercial domicile is acquired whenever a person resides and carries on business in a country in time of war without any intention of bringing his business to an immediate end.[21]
  • It is possible to have more than one commercial domicile at the same time and be engaged in business in each of them, but enemy or neutral character is characterized only in the transactions that originate in the belligerent or neutral country concerned.[24]
  • Commercial domicile is acquired when a person acts as a merchant, even when he also acts as a consular representative of a state.[21]
  • In acting as a merchant, the activity must be extensive enough that the country is said to derive an advantage from the trade he carries on there.[21]
  • Commercial domicile is lost at the moment a person puts himself in motion to quit the country of domicile with no intention of returning.[25]
  • Any person is an enemy with respect to a ship or cargo who resides and carries on a trade in an enemy territory, and has not divested himself of this hostile character by bona fide putting himself in motion to quit the enemy territory.[26][27]
  • If a person carries on business in both enemy and British territory, any property belonging to him as a merchant of the belligerent state is liable to be captured at sea.[28] Neutral ships may be captured if they break, or attempt to break, a blockade.[28]

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,[29] 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.[30] The 1968 Act required that "the domicile of a married woman shall be determined as if she were unmarried, and, if she is a minor, as if she had attained her majority",[31] with one year's residence in the province where the divorce order was sought.[32] The later 1986 Act[33] removed the domicile requirement completely.[34]

When later court proceedings revealed complications arising from the impact of domicile on the validity of same-sex marriages solemnized in Canada,[35] 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.[36]

Outside of marriage and divorce, rules relating to domicile generally fall under provincial jurisdiction. The Civil Code of Quebec standardizes rules for that province,[37] while Manitoba is the only common-law province to attempt to completely revise and simplify the rules within its scope.[38] 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."[39]
  • On 31 March 1978, the doctrine of illegitimacy was abolished,[40] as well as the rule deeming a married woman's domicile to be that of her husband's,[41] and the rules governing the domicile of minors were simplified.[42]
  • Effective 1 March 1986, the rules governing the domicile of minors were simplified further.[43]

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.[44]

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.[45][46]

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.[47]

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").[48]

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.[49]

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[50] 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.[51]

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,[52] 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:[53]

  • 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,[54] subject to the payment of a remittance basis charge.[55]
  • 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,[56] and is deemed to continue to exist for up to three years after the acquisition of a new domicile.[56] A spouse or civil partner may elect to be deemed as so domiciled.[57]

In 2015, Her Majesty's Treasury proposed further changes to the deemed domicile rules, which went through two rounds of consultation.[61] In its response in December 2016,[62] 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:[63]

  • For purposes of income tax and capital gains tax:[64]
    • 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.[65]

Legislative changes were delayed because of the intervening 2017 general election, but are anticipated to be implemented in the autumn of 2017, with retrospective effect.[66]

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.[67]

See also

Further reading

  • Dickinson, Edwin D. (1919). "The Domicil of Persons Residing Abroad under Consular Jurisdiction". Michigan Law Review. 17 (6): 437–455. , later updated in Dickinson, Edwin D. (1919). "The Domicil of Persons Residing Abroad under Consular Jurisdiction". Michigan Law Review. 17 (8): 694–696.
  • The Earl of Halsbury (1909). "Conflict of Laws". The Laws of England. VI (1st ed.). London: Butterworth & Co. pp. 177–308.
  • The Earl of Halsbury (1912). "Prize Law and Jurisdiction". The Laws of England. XXIII (1st ed.). London: Butterworth & Co. pp. 275–295.
  • 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. 1 2 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. 1 2 Halsbury VI 1909, p. 190.
  11. ↑ Halsbury VI 1909, pp. 190-191.
  12. ↑ Jopp v Wood (1865) De GJ&S 616, 46 ER 1057 (14 February 1865), Court of Chancery
  13. ↑ Maltass v Maltass (1844) 1 Rob Ecc 67, 163 ER 967 at 80 (17 July 1844), Consistory Court
  14. ↑ Dickinson 1919a, pp. 442-443.
  15. ↑ In re Tootal’s Trust, 52 LJ 664, 670 (Ch 1883).
  16. ↑ Dickinson 1919a, p. 444.
  17. ↑ Ellen Abd-ul-Messih (Widow) v Chukri Farra and Angela Farra [1888] UKPC 22, (1888) 13 AC 431 (17 March 1888), P.C. (on appeal from the Supreme Court of Constantinople)
  18. ↑ Dickinson 1919a, p. 445.
  19. ↑ Dickinson 1919b, p. 695.
  20. ↑ Casdagli v Casdagli [1918] UKHL 56SLR0411, [1919] AC 145 (28 October 1918)
  21. 1 2 3 4 5 Halsbury VI 1909, p. 195.
  22. ↑ Halsbury XXIII 1912, p. 278.
  23. ↑ Dickinson 1919a, p. 440.
  24. ↑ Halsbury VI 1909, pp. 195-196.
  25. ↑ Halsbury VI 1909, p. 196.
  26. ↑ Halsbury XXIII 1912, pp. 278-279.
  27. ↑ The Indian Chief (1801) 3 C Rob 12, 165 ER 367 (27 February 1801), High Court of Admiralty
  28. 1 2 Halsbury XXIII 1912, p. 279.
  29. ↑ Divorce Act, S.C. 1967-68, c. 24
  30. ↑ The full text of Parliamentary Notice, January 13, 1868 at Wikisource
  31. ↑ S.C. 1967-68, c. 24, s. 6(1)
  32. ↑ S.C. 1967-68, c. 24, s. 5(1)
  33. ↑ Divorce Act, 1985, S.C. 1986, c. 4
  34. ↑ S.C. 1986, c. 4, s. 3(1)
  35. ↑ Kirkby, Cynthia (9 March 2012). "Legislative Summary of Bill C-32: An Act to Amend the Civil Marriage Act". Library of Parliament.
  36. ↑ Civil Marriage of Non-residents Act, S.C. 2013, c. 30
  37. ↑ Civil Code of Quebec, art. 75–83
  38. ↑ The Domicile and Habitual Residence Act, CCSM , c. D96
  39. ↑ 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
  40. ↑ The Children's Law Reform Act, 1977, S.O. 1977, c. 41
  41. ↑ The Family Law Reform Act, 1978, S.O. 1978, c. 2, s. 65
  42. ↑ 1978 Act, s. 67
  43. ↑ Family Law Act, 1986, S.O. 1986, c. 4, s. 67
  44. ↑ Dicey Morris & Collins 2006, par. 6R-025.
  45. ↑ Dicey Morris & Collins 2006, par. 6R-033 and 6R-074.
  46. ↑ 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.
  47. ↑ Dicey Morris & Collins 2006, par. 6R-078.
  48. ↑ Sun Printing & Publishing Association v. Edwards, 194 U.S. 377 (1904)
  49. ↑ Hertz Corp. v. Friend, No. 08-1107, 559 U.S. ___ (2010)
  50. ↑ UK Parliament. Domicile and Matrimonial Proceedings Act 1973 as amended (see also enacted form), from legislation.gov.uk.
  51. ↑ Kessler, James (2013). Taxation of Non-Residents and Foreign Domiciliaries (12th ed.). Oxford: Key Haven Publications plc. ISBN 978-1-90161459-6.
  52. ↑ Family Law (Scotland) Act 2006, 2006 asp 2, at s. 22
  53. ↑ "Guidance Note: Residence, Domicile and the Remittance Basis" (PDF). Her Majesty's Revenue and Customs. June 2016.
  54. ↑ "Helpsheet 264: Remittance basis (2015)". Her Majesty's Revenue and Customs. 24 August 2016.
  55. ↑ "SA109: Residence, remittance basis etc notes" (PDF). Her Majesty's Revenue and Customs. 2016. pp. 10–11.
  56. 1 2 Inheritance Tax Act 1984, s. 267
  57. ↑ Inheritance Tax Act 1984, s. 267ZA, as inserted by the Finance Act 2013, s. 177.
  58. 1 2 "Non-UK domiciliaries: Inheritance tax issues and opportunities" (PDF). Charles Russell Speechlys LLP. May 2015.
  59. ↑ Constitutional Reform and Governance Act 2010, Part 4
  60. ↑ Slevin, Kevin (19 May 2011). "Not quite the same" (PDF). Taxation. pp. 6–8.
  61. ↑ "Reforms to the taxation of non-domiciles". HM Treasury. 19 August 2016.
  62. ↑ "Reforms to the taxation of non-domiciles: responses to further consultation" (PDF). HM Treasury. December 2016.
  63. ↑ "Draft provisions for Finance Bill 2017" (PDF). HM Treasury. December 2016.
  64. ↑ 2017 draft Finance Bill, s. 40
  65. ↑ 2017 draft Finance Bill, s. 41
  66. ↑ "Draft Finance (No. 2) Bill" (PDF). ey.com. Ernst & Young. 13 July 2017.
  67. ↑ "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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