DOMICILE AND RESIDENCE

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• In conflict of laws, the application of foreign
law depends on the domicile or the habitual
residence of parties in a case. Traditionally, the
principles of domicile is the determining factor
for the application of foreign law in disputes
relating to personal law matters.

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• Habitual residence is the basis for allocating
jurisdiction to that State’s court, especially in
relation to matrimonial causes and child
custody. For Example, Family Law Act 1996 S
19(2) (d),, Domicile and Matrimonial
Proceedings Act 1973, Family Law Act of 1986,
Adoption Act of 1976.

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 Domicile Under Common Law
• The word “domicile” is to identify the personal
law by which an individual is governed in
respect of various matters such as the
essential validity of marriage, the effect of
marriage on proprietary rights of husband and
wife, jurisdiction in divorce and nullity of
marriage, illegitimacy, legitimation and
adoption and testamentary and interest in
succession to movables.
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• Every person has a domicile and, subject to below, no person can have
more than one domicile at any time. The domiciliary law- the lex
domicilii-has a dominating role in family and property law, but it may
also define the capacity of persons especially companies, to make
contracts; and it plays a part in the law of taxation. The concept of
domicile regulates a wide but diverse range of matters, and it may be
that its meaning should adjust from one context to another. It is also
essential that it represent a rational connection to a particular law.
• The persistence of the domicile of origin constitutes a general-half
exception to the rule; the jurisdictional domicile which forms the
backbone of the Civil Jurisdiction and Judgment Act 1982 and Civil
Jurisdiction and Judgments Order 2001,is a completely separate
concept, irrelevant to the common law of domicile

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 Domicile Of Origin

• The Domicile of origin is the domicile of one’s

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 Domicile Of Choice

• A domicile of choice is acquired by taking up

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• What constitutes residence is hard to say; and the definition of ‘present
as a resident’ hardly advances matters very much. It has been held that
residence originating in unlawful entry into a country is insufficient, but
this may be seen as a rule of English Public Policy applicable only to
residence in England. A person can be resident in a country though
absent from it, but is unclear whether he can be a resident in two
countries at once, but to avoid the inadmissible result of this leading to
there being two domiciles of choice, it is probable that the residence
requirement identifies the principal residence if there is more than one.
•  
• In the case of habitual residence, this will not suffice: Re J (a Minor)
(Abduction: Custody Rights)(1990) 2 AC 562
• Plummer v. IRC (1988) 1 WLR 292

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• Domicile Of Dependency
• A child’s domicile of dependency is that, from time to time, of the
parent upon whom, until the age of 16 or lawful marriage under this
age, the child is dependent. In principle, therefore, a child may
supplant its domicile of origin with a domicile of dependency as soon
as the cord is cut. When the age of independence is reached, it is
debatable whether the domicile of dependency is lost by operation of
law, so that the domicile of origin, if different, revives unless the
domicile had from dependency continues as a ‘deemed’ domicile of
choice. Statute suggests that the latter is possible,but in principle,
and the balance of authority, suggests that it is not, and that the
domicile of dependence ceases and is defunct on the attaining of
majority. The domicile of married women was abolished in 1974.

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 Domicile and Personal Law In India
• It is not surprising that courts and legislatures in British India should have
been adopted the English Principle of Domicile as opposed to the continental
test of nationality. Domicile became the basis for the determination of
questions of status, especially in the sphere of conflict-jurisprudence.
 
• Principles of law regarding domicile have been codified in Part II of the Indian
Succession Act 1925. In general, they follow the well-known rules of English
Private International Law. Thus ‘the domicile of origin prevails until a new
domicile has been acquired’ (Sec 9). ‘ A man acquires a new domicile by
taking up his fixed habitation in a country which is not that of his domicile of
origin’ (Sec 10). The word ‘ fixed habitation’ has been interpreted by the
courts as connoting a permanent home ‘ animo et facto’. ‘ A new domicile
continues until the former domicile has been resumed or anther has been
acquired’ (Sec 13). ‘

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• By marriage a women acquires the domicile of her
husband, if she had not the same domicile before’
(Sec 15). ‘ ‘Save as hereinbefore otherwise provided
in this part, a person cannot, during minority,
acquire a new domicile’ (Sec 17). Further Section 12
incorporates the well-known English rule that an
Ambassador or a member of his family does not
acquire a new domicile by reason only of his
residence in the country to which he has been
accredited.
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• In Santos v. Pinto an Indian Christian with a Goanese
domicile of origin had migrated to Bombay in his youth,
acquired a business there and settled down in Bombay.
From his conduct and declarations the court held that he
had acquired an Indian Domicile by taking up a ‘ fixed
habitation’ in India with in meaning of Sec.10 of the
Indian Succession Act and hence succession to his
movables was governed by the Indian Law as the lex
domicilii at the time of his death.
• 47 Bom, 687

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• In Khambatta v.Khambatta a case came under consideration, in
which a women domiciled in Scotland had married in that country
in accordance with its formalities, a Mohammedan domiciled in
India, and after coming to India embraced the Muslim faith. Later
the husband purported to have divorce her by ‘Talak’ in accordance
with Mohammedan Law. The lady married second time and in a
suit for dissolution for this marriage, the question arose whether
first marriage subsisted or was validly dissolved. Beamount C.J.
held that the lex domicili of the husband was conclusive on the
question of nature of the marriage and the grounds of dissolution,
irrespective of the lex domicilii of the wife before marriage.
• 1959 Bom 278

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 Habitual Residence In English Law

• Although habitual residence is used in a number of different

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• However, on closer inspection of the cases it becomes apparent
that the courts pay mere lip service to this rule and often refer
to the purpose of the statute in determining the actual “habitual
residence” on the facts. For example, in Nessa V.Adjudication
Officer part of the reason why an appreciable period of time was
necessary in order to establish habitual residence was because
the purpose of the statute was to limit entitlement to income
support. In Oundjian v. Oundjian French J. noted, “the purpose
of the use of habitual residence was to ensure a proper
connection between the propositus and this country sufficient
to warrant the exercise of jurisdiction. He took this into account
in deciding whether habitual residence had been established”.

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• In the leading case of Re J.(A Minor)(Abduction: Custody
Rights) Lord Brandon of Oakbrook held that the term
habitually resident is to be understood “according to the
ordinary and natural meaning” of the two words
“habitual” and “residence”. Further, he said that the issue
of where someone is habitually resident is a matter of fact
to be decided by reference to all the circumstances of the
case. Couched in such circumstances, it appears that a
determination of one’s habitual residence should be a
straightforward, factual decision that does not require
legal rules or the intervention of courts.

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• However, According to Dicey & Morris that “ there is a regrettable tendency of
the courts, despite their insistence that they are not dealing with a term of art,
to develop rules as to when habitual residence may and may not be established.”
It is submitted that “ the courts will resist the temptation to develop detailed
and restrictive rules as to habitual residence which might make it as technical a
term of art as common law domicile. The facts and circumstances of each case
should continue to be assessed without resort to presumptions or
presuppositions.” Nevertheless, of the many reported cases on habitual
residence this decade eight were determined by the Court of Appeal and three
decided by House of Lords. At first sight it is surprising that words with
apparently such a commonly understood meaning need the learned discourse of
the higher courts, complete with the expensive entourage of silks, juniors and
solicitors. On the further inspection it becomes apparent that habitual residence
is not so uncomplicated. The courts and the commentators are being rather
disingenuous to suggest or otherwise.

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 Habitual Residence And Domicile

• There are many statements in the courts that habitual residence is not
to follow the law of domicile as Lord Donaldson said in Re J “ the
expression is not treated as a term of art with some special meaning.”
However, it is submitted that identifying one’s habitual residence is not
quite as straightforward as it appears at first sight. The uncertainty of
decision in the cases where the propositus has remained in a country
less than a year is exacerbated by the focus on subjective element which
are inherently less precise. It may be salutary to recall the fate of
domicile. Some 140 years ago Lord Cranworth blithely remarked that “
by domicile, we mean home, the permanent home; and if you do not
understand your permanent home I am afraid that no illustration drawn
from foreign writers or foreign languages will very much help you to it.”

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