Concept of Domicile Under Private International Law: An Understanding

Swathy Ramanathan

INTRODUCTION
Meaning and Definition of Domicile
In all the nations all around the world who follow the Common Law principle or tradition, the
criterion employed to connect a person with a particular legal system in matters of personal
status and succession is the criterion of Domicile.1 This is particularly important in conflict of
law situation when a question arises whether a person residing in, or a National of, another
country, has the capacity to marry or it has to be determined as to who is entitled to succeed to
his movable property.2
The term "Domicile" is a concept which comes under the ambit of conflict of laws or comes
under the ambit of private international law. Domicile is a general legal concept, which
describes the country where you consider your ‘roots’ are or where you have your permanent
home.3 The domicile of a person or an individual is generally applicable to the whole country
and not only to a part of it. It is a common law principle that no person or individual can be
without a domicile. It is also a principle that a person who owns more than one home cannot
have more than one domicile at any given time.4 An existing domicile is presumed to continue
until a change is proven by the propositus on the balance of probabilities.5 And it so can be
seen that the concept of domicile per se differs from nation to nation depending upon the
jurisdiction of the country and the principles it follows.
Importance of Domicile
Domicile as a document carries with it a very important role in the life of an individual living
in the world forum. An individual who chooses his/her domicile is subjected to a lot of legal
consequences and implications of the concept of domicile. It often determines (i) jurisdiction
to assess state income and death taxes; (ii) primary jurisdiction to probate wills and administer
estates; and (iii) judicial jurisdiction over an individual.6 Domicile also determines whether and
where a person may exercise various legal rights and privileges, such as voting.7 Some of the
Important consequences of a person or an individual having a domicile are:

1
ATUL M. SETALVAD, CONFLICT OF LAWS 121 (3rd ed. 2014).
2
Id at 122.
3
Law Incomes Tax Reform Group, Domicile?, LAW INCOMES TAX REFORMS GROUP,
https://www.litrg.org.uk/sites/default/files/Domicile%202017%20FINAL.pdf.
4
The Law Essay Professionals, Domicile in Common Law Systems, LAW TEACHER,
https://www.lawteacher.net/free-law-essays/commercial-law/domicile-in-common-law-systems-commercial-
law-essay.php.
5
Id
6
Cummings and Lockwood, The importance of Domicile, C L LAW, https://www.cl-law.com/news-events/the-
importance-domicile/pdf.
7
Id

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 • A domicile of a person or an individual decides the marriage law applicable to each
participant on the basis of his/her domicile.
• Divorce as a concept is only applicable to parties who have a domicile.
• The law of domicile decides the interpretation of a person's will. According to the
person's domicile, the intestate succession or the execution of that individual's will takes
place.
• Tax implications come into picture only after determining the domicile of the person or
individual in concern.

PRINCIPLES THAT GOVERN LAW OF DOMICILE

The basic aim of the law of domicile is to associate or assign an individual with a specific or
particular set or system of laws to which the individual most relates to. Under both the Private
International Law System and the Indian Law System, there are four basic principles which
govern the law of domicile in any country.8 They are:
1. No person or an individual can exist or stay without a domicile
It is a mandatory principle and rule that every person or individual should have a
domicile. It is a well-established rule which cannot be changed under any
circumstances. The reason behind the establishment of this principle is that every
individual should have a connection to a specific system of law so that his/her actions
can be regulated by categorising it or placing the actions into a set of laws. An
individual has a freedom to change his/her domicile. But the vice versa.i.e., freedom to
have no domicile is not available to any person living in the world forum. Initially the
domicile of a person or an individual is determined by his/her birth. An individual
acquires the domicile of his/her father if it's a legitimate child but acquires the domicile
of his/her mother if it's an illegitimate child.

2. No person can simultaneously have two domiciles

It is one of the basic principles of domicile that since no individual can stay or exit
without a domicile, no individual can have two domiciles at the same time. The reason
behind this principle of law of domicile is that domicile associates an individual to a
specific set of law. If a person or an individual is allowed to have one or more domiciles,
then the basic aim and purpose of having a domicile to regulate the actions of an
individual would be compromised and frustrated. The Indian Constitution only
recognises one domicile for one person.9

3. The basic aim of domicile is to associate an individual with a territorial system of law
Domicile has reference to the system of law by which a person is governed, and when
we speak of the domicile of a country, we assume that the same system of law prevails

8
PARAS DIWAN AND PEEYUSHI DIWAN, PRIVATE INTERNATIONAL LAW 152 (1998).
9
Pradeep Jain V. Union of India, 1984 SC 1420.

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 all over that country.10 But it might well happen that the laws relating to succession and
marriage might not be the same all over the country, and that different areas in the state
might have different laws in respect of these matters. In that case, each area having a
distinct set of laws would itself be regarded as a country for the purpose of domicile.11

4. The presumption is always made in the favour that the existing domicile always
continues
This fourth principle says that until or unless it is not proved that a person has got a new
domicile it will be presumed he has the old domicile and the burden of proving will lie
on that party who state that the person has changed the domicile but few jurists argue
that the burden of proof is subject to change depending on the kind of the domicile and
“the burden of proof is consider fragile when the domicile of question is domicile of
dependence and very strong when the kind of domicile is of origin".12

DOMICILE, NATIONALITY AND RESIDENCE

Distinction between Domicile and Nationality
The term "Nationality" in general terms means a specific status of membership which is
conferred on an individual by a nation state. Fenwick defines it as a bond which unites a person
to a given state which constitutes his membership in the particular state, which gives him a
claim to the protection of that state and which subjects him to the obligation created by the
laws of that state.13
Why is Nationality important? A nationality also confers certain rights upon an individual
which he/she can enjoy internationally. Some of the benefits of having a nationality are: loyalty
towards a specific nation, the nation can choose not to extradite its own nationals in case of
any discrepancy, you can determine the enemy character of an individual through a state, the
state has jurisdictions over all its nationals, etc. Nationality to a particular state can be acquired
by following means:

• By birth - This kind of nationality is conferred upon the individual or the person by way
of his/her birth in that particular nation.
• By descent - This kind of nationality is conferred upon an individual by form of descent
from one of its own nationals.
• By the process of naturalisation - This kind of nationality can be conferred upon the
individual or the person by way of adoption, marriage, government job appointment,
etc.

10
D.P. Joshi V. State of Madhya Pradesh, AIR 1955 SC 334.
11
Id
12
The Law Essay Professionals, Importance of Domicile, LAW TEACHERS, https://www.lawteacher.net/free-law-
essays/commercial-law/importance-of-the-domicile-commercial-law-essay.php.
13
Hafiz Muhammad Azeem, Nationality, Domicile and Citizenship, BLOG SPOT,
http://hmazeem.blogspot.in/2015/05/nationality-domicile-and-citizenship.html.

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 • By way of subjugation - A person may acquire nationality through subjugation after the
conquest. When the part of a state is subjugated by another state the inhabitants of that
state become the nationals of the later state.14
• By way of registration of resumption - This kind of nationality is conferred when an
individual is born as a natural subject of the state but because of some cause lost his/her
nationality. They can regain their nationality by fulfilling certain conditions again.

Similarly, loss of nationality can occur due to the following reasons:

• By way of renunciation - If an individual acquires nationality of more than one state or

nation, then he/she has to renounce the nationality of state.
• By way deprivation - It is a well-established rule that if an individual acquires a
government job in another nation without informing the state, he or she is a national of,
then the former state might deprive the person or individual of their nationality to that
state.
• By way of long residence in another state - It is a well said rule which some of the states
follow that if an individual resides in another state for a very long period of time, he or
she might lose the nationality to the former state.

Domicile is as we know it a relationship between a person and his or her place of residence
which is also deemed as a permanent home. Domicile may still continue even if the individual
has left his or her home. Nationality on the other hand is a relationship between an individual
and a country (to which a person owes his allegiance to).15 Nationality normally confers some
protection of the individual by the state and some obligations on the individual towards the
state.16
Distinction between Domicile and Residence
Domicile is a person’s permanent place of dwelling and it is a legal relationship between a
person and a locality.17 It may or may not be of same meaning as the term ‘residence’.18
Domicile involves intent of an individual whereas, residence is something objective.19
Domicile basically consists of or is based upon two major factors.i.e., intention of living and
residence. Residence is more of a temporary nature whereas domicile is more of a permanent
nature. A person or an individual can have only one domicile whereas he/she can have a lot of
residences.

KINDS OF DOMICILE

14
Supra note 13
15
The Essayist, The law of Domicile, LEGAL RESCUE, http://legalrescue.blogspot.in/2013/01/the-law-of-
domicile.html (last visited Apr. 26, 2018).
16
Id
17
US Legal, Distinction between Domicile and Residence, US LEGAL, https://domicile.uslegal.com/distinctions-
between-domicile-and-residence/ (last visited Apr. 26, 2018).
18
Id
19
Id

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Domicile of Origin
One of the basic principles that governs the law of domicile is that no individual can stay or
exist without a domicile. To give this principle a practical application, the law of domicile
confers a domicile at birth of every individual. This is known as a domicile or origin. It is not
necessary that the domicile of origin is always the person's country of birth.
It is generally the person's father's domicile which conferred upon in case of a legitimate child
and the mother's domicile in case of an illegitimate child. A domicile of origin is of fundamental
significance and is retained until such time as there is clear evidence that another domicile has
been acquired.20
Domicile of Choice
It is well stated as rule of private international law that an independent individual can change
his or her domicile. Here the term "Independent" means a person of 16 years or more of age.
This is known as domicile of choice. Domicile of choice can be taken for a temporary period
of time in any other outer territory. To establish a domicile of choice an individual must sever
most or all ties with his domicile of origin and settle in the territory in which he wishes to
establish a domicile, with a clear intention of making his home there on a permanent basis.21 If
a person wishes to establish a domicile of choice, he has the onus of proving that this has
occurred, and that in consequence the domicile of origin has been displaced.22
Now if an individual or a person wants to acquire a domicile of choice, he or she has to fulfil
these following two conditions for it:
1. The individual should be a resident of the nation for which he or she is trying to acquire
the domicile of choice.
2. The individual should have a clear intention of living permanently in the state for
acquiring domicile of choice.

According to Section - 10 of the Indian Succession Act, 1925, a person or an individual can
acquire a new domicile by having a fixed and permanent habitat in the nation which is not the
person's domicile by origin. The two factors which are intention and residence are important
for acquiring the domicile by choice.
The term "residence" here means that a place where the individual resides.i.e., drinks, eats and
sleeps. Residence is a tangible factor and can be quantified and identified very easily. The term
"intention" here means the mens rea of the individual to reside in the place. But intention is an
intangible factor and cannot be measured or quantified. In order to acquire the domicile of
choice, the intention of the individual should not be fickle but instead it should be fixed. For
example: If A leaves his country of origin to live in countries X, Y and Z, the intention of A of
settling down in any of these countries is very fickle. Hence, domicile of choice cannot be

20
Jikku Seban George, Domicile and Nationality, LEGAL3, http://legaljas.blogspot.in/2010/11/domicile-and-
nationality.html.
21
Id
22
Id

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procured. But if A decides affirmatively to live in country Y for the rest of his life, he can
obtain a domicile of choice.
Domicile of Dependents
Who are dependents? Children below the age of sixteen years, married women and mentally
disabled persons such as lunatics and idiots fall under the category of dependents. But in case
of law of domicile, dependents can also be categorised into persons or individuals who are not
able to acquire domicile by choice. Therefore, the general rule is that the dependent individual
acquires the domicile of dependence of the individual he or she is dependent on. The domicile
of a dependent can change if the person the individual is dependent on changes his or her
domicile.
Under private international law, the domicile of dependency is governed by the English laws
and not the law of the nations whose domicile is to be acquired or whose domicile the individual
was previously holding.

CONCLUSION
Domicile plays a very important role in conflict of laws as a connector. It plays a very important
role in taxation laws, matrimonial laws and property laws and helps a lot if any conflicting
situation arises. It determines the capacity of the contracting parties to the contract under these
areas of law.
Domicile of origin is indestructible. Even if a domicile of choice is acquired by an individual
or a person, the domicile of origin will always be there to fill in any gaps if at a later stage
domicile of choice is let go by the individual. Every individual is born with the domicile of
origin and it tends to stay for life (if only in abeyance).
When a person or an individual abandons the domicile of choice by ceasing to reside in that
country, a new domicile of choice is to be taken over or the domicile of origin comes back into
the picture by operation of law.
Hence an understanding of the concept of domicile is very important under private international
law or as a matter of fact to every area of law.

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