Domicile is the status or attribution of being a permanent resident in a particular jurisdiction.

A person
can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links
with that jurisdiction or have not displayed an intention to leave permanently (that is to say, if that
person has not yet moved to a different state, or has not yet formed an intention to remain there
indefinitely).

The concept of domicile is not uniform throughout the world. To civil lawyers in Europe who do not
apply common law, it means habitual residence. While at common law it is regarded as equivalent to a
person’s permanent home.

Domicile is what is termed in private international law as a “connecting factor” which connects an
individual with a system of law for the purposes of determining a range of matters, principally related to
his status or property. For example, in the circumstances below, domicile is said to be a “connecting
factor”

 Legal capacity to marry

TYPES OF DOMICILE

The rules for determining domicile in common law jurisdictions are based on case law in origin.
However, as time went on, different jurisdictions altered some aspects of the common law rules by
statute, details of which may vary from one jurisdiction to another. The common law rules have
however survived in most jurisdictions and are outlined below.

1. DOMICILE OF ORIGIN

a) A legitimate child born during the lifetime of his father has his domicile of origin in the jurisdiction in
which his father was domiciled at the time of his birth.

b) A legitimate child not born during the lifetime of his father or an illegitimate child has his domicile of
origin in the jurisdiction in which his mother was domiciled at the time of his birth.

c) A foundling has his domicile of origin in the jurisdiction in which he was found.

A domicile of origin is attributed by law to every person at birth. There is no necessary connection
between the place of birth and the domicile of origin. A domicile of origin is more tenacious than a
domicile of choice. It is more difficult to prove that it has been abandoned. The point of domicile of
origin ensures that everyone has one domicile and only one domicile at all times. If a person leaves the
country of his domicile of origin, intending never to return to it, he continues to be domiciled there until
he acquires a domicile of choice in another country. But if a person leaves the country of his domicile of
choice, intending to never return to it, he ceases to be domiciled in that country unless and until he
acquires a new domicile of choice, his domicile of origin revives.
2. DOMICILE OF CHOICE

Every independent person can acquire a domicile of choice by the jurisdiction of residence and intention
of permanent or indefinite residence but not otherwise. According to the DOMICILE AND
MATRIMONIAL PROCEEDINGS ACT, every person in the world who is over the age of sixteen and is not
mentally incapable is able to acquire a domicile of choice by residing in one country with the present
intention of making it his permanent home. Thus there are two important requirements, namely; fact
and intention. They are normally referred to as factum and animus. Factum is fact or residence, while
animus is intention. A person can therefore abandon a domicile of choice in a jurisdiction by ceasing to
reside there (fact) and by ceasing to reside there either permanently or indefinitely (intention). That is to
say leaving “animus non revertendi”

3. DOMICILE OF DEPENDENCE

This is also known as domicile by operation of law. This type of domicile concerns dependent persons.
The domicile of a dependent person is the same as and changes (if at all) with the domicile of the person
on whom he is, as regards his domicile, legally dependent. Until he reaches the age of maturity (which
maybe the age of sixteen), a legitimate child’s domicile depends on and changes with the domicile
unless, both parents being alive, the child has his home with his mother and no home with his father. An
illegitimate child or a legitimate child whose parents are both living but who lives wholly with his mother
has a dependent domicile coincident to that of his mother’s current domicile. A child whose father is
dead takes his domicile of dependence from his mother however, unless he has a home with her, his
domicile of dependence does not automatically change with hers. A child whose parents are dead
should be domiciled where the person on whom he is dependent is domiciled (however there is no
authority for this). At birth, a child receives two domiciles, origin and dependence, which are initially, in
the vast majority of cases, the same. The domicile of origin will be overlaid by the domicile of
dependence. While the domicile of origin remains constant throughout life, the domicile of dependency
changes with the domicile of the person on whom the child is domiciliary dependent. The idea is that, as
far as possible, there should be unity of domicile between the child and its parents.

Married Women

Until 1 January 1974, there were three categories of dependent persons; children, married women and
mentally disordered persons. Married women ceased to be dependent persons on 1 January 1974 by
virtue of section 1(1) of Domicile and Matrimonial proceedings act 1973. This act however, did not
change the position of women married before this date because the act was not retroactive.

Mentally Disordered Persons

A mentally disordered person cannot acquire a domicile of choice; he retains the domicile he had when
he began to be legally treated as such. However, if he was born mentally disordered or he becomes
mentally disordered while a dependent child, his domicile is determined so long as he remains mentally
disordered, as if he continued to be a dependent child.
PRIVATE INTERNATIONAL LAW

The Conflict of Laws, or as it is more commonly known by the name of Private International Law is that
branch of law which deals with those case where some foreign element is present; to be more precise
the geographical factor is present. This situation may arise when the parties are residents of a foreign
country and any dispute arises between them or there a dispute between people belonging to two
different countries. And in all the cases where any foreign element is present, the Court applies the
principle of “conflict of laws.’

In the present era, almost all countries have a system in place to deal with conflict of laws. This system is
required for the increased movement of people from one territory to the other due to various reasons.
The Courts in such cases voluntarily apply the principle of conflict of laws. While there are some laws
which are accepted in most of the countries, some rules might differ depending on the place.

Private International Law determines that what law will be applied when there is a dispute between the
parties relating to their private rights and obligation, but where some foreign element is also present,
and what Court shall have the jurisdiction to try the dispute. According to this, Private International
Laws may possess the following principles:

 It is a branch of national or local laws of the country.

In simple words, Private International Laws can be defined as a means to find out the way to solve a
dispute when any foreign element is involved.

NATURE OF PRIVATE INTERNATIONAL LAW

Private international law is the area of law that comes into play whenever a court is faced with a
question that contains a foreign element, or a foreign connection. The presence of such a foreign
element in a legal matter raises a number of questions and it is the function of private international law
to provide an answer to these questions and to ensure just solutions. It is concerned with all legal
relationships between private entities and thus includes, for example, family law and the law of
contracts and obligations. These laws differ from country to country. Private international law is a
branch of municipal law. PIL is essentially a system of Indicating choice, choice of jurisdiction, choice of
law and recognition of a foreign judgment.

Private international law contains the following basic nature:

1) its subject matter always includes a foreign element;

2) one of its prime nature is the pursuit and application of the appropriate legal system and

3) jurists have been more influential in this branch of the law than is typical with other legal subjects.
Mr. Justice J.C. Shah (as he then was, afterwards C.J.I.) as late as 1963 in R. Vishwanathan v. Syed Abdul
Wajid’ gives an enlightening explanation of what Private International Law is ―It is not the law
governing relations between States. It is simply a branch of the Civil Law of the State evolved to do
justice between litigating parties in respect of transactions or personal status involving a foreign
element. Its rules in the very nature of things differ from State to State, but by the comity of nations,
certain rules have been recognised as common to civilized jurisdictions.2 Through part of the judicial
system of each State, these common rules have been adopted to decide disputes involving a foreign
element and enforce foreign judgment, often as a result of International Conventions.

A Division Bench of the Bombay High Court in a case of divorce involving two conflicting legal systems,
Monica Variato v. Thomas Varia stated that the principles of Private International Law are not universal.
They vary from State to State. What may be applicable in one State may not be applicable in another
State. In 1952, Indian & General investment Trust Ltd. v. Raja of Kholikhote, the High Court devoted
substantial part of the judgment to general principles of Private International Law:—The name ―Private
International Law‖ is rather unfortunate because it is difficult to conceive of a law which is both
International and at the same time private. It is called ―private inasmuch as it deals with the legal
relations of individuals and not of States; it is ―International, inasmuch as its rules are enforced by
Courts, and in that respect it is a branch of the ordinary law of the land.

SCOPE OF PRIVATE INTERNATIONAL LAW

Private International Law is not a separate branch of law in the same sense as, say, the law of contract
or of tort. It is all-pervading.

“It starts up unexpectedly in any court and in the midst of any process. It may be spring like a mine in a
plain common law action, in an administrative proceeding in equity, or in a divorce case, or a bankruptcy
case, in a shipping case or a matter of criminal proceeding. The most trivial action of debt, the most
complex case of equitable claims, may be suddenly interrupted by the appearance of a knot to be united
only by Private international law.”

Nevertheless. Private international law is a separate and distinct unit in the English legal system just as
much as the law or of contract, but it possesses this unity, not because it deals with one particular topic,
but because it is always concerned with one or three questions, namely :

a) Jurisdiction of the English Court - The basic rule at at the common law is that the English court have
no jurisdiction to entertain an action in personam unless the defendant has been personally served with
a claim form in England or Wales.

b) Recognition and enforcement of foreign judgments - Where there has been litigation abroad, but the
defendant has most of his asset in England, it will be important to ascertain whether English Law will
recognize or permit the enforcement of the foreign judgement.

c) The choice of Law - If the English court decides that it possesses the jurisdiction , then a further
question, as to the choice of law, must be considered; i.e., which system of law, English or foreign, must
govern the case. The action before the English court, for instance, may concern a contact made or a tort
committed abroad or the validity of the will made by a person who died domiciled abroad.