3.

PERSONAL CONNECTING FACTORS - NATIONALITY, DOMICILE AND

RESIDENCE

3.1 Nationality

Nationality of a State is acquired by born in that State, through parents who are
nationals of a particular State or by naturalisation e.g. when a national of a foreign
country becomes a UK citizen through naturalisation. Nationality indicates a
person’s political status where he owes allegiance to a particular country. Many
European and South American countries adopt nationality as the criterion for
ascertaining an individual’s personal law in order to govern matters such as marital
and testamentary capacity. Nationality is an easy to understand concept and can be
ascertained without too much difficulty.

However, there are some disadvantages in using nationality to decide an individual’s

personal law. Firstly, some individuals are stateless and some have dual nationality.
Nationality cannot be used as the basis for personal law in States such as the UK
and the USA as they consist of several law districts within the State. For most
matters there is no UK law. Instead there is English law, Scots law and Northern
Irish law. Thirdly, an individual who is a foreign national may have settled down in
England and lived there for a long period of time, losing all connection with his State
of nationality. If nationality is the criterion to decide say his testamentary capacity,
one would be applying a law which he has had little contact with.

3. 2 Traditional concept of Domicile

In England the main connecting factor is domicile. Domicile has at times been
defined as a person’s “permanent home”.1 However, this definition is not always
appropriate. For example, even a homeless person has a domicile. A person can
have two homes but can only have one domicile at any one time. A person may be
domiciled in a country which is not and has never been his/her home. Domicile is a
legal concept and has been described as an “idea of law.” 2

3. 2.1 General principles

1. No one can be without a domicile.3

2. No one can have more than one domicile at the same time, at any rate for the
same purpose.4

3. There is a presumption that the existing domicile continues until a new one is
acquired. The burden of proving a change of domicile is on the person who asserts
the change.5

1
Whicker v. Hume (1858 7 HLC 124.
2
Bell v. Kennedy (1868) LR 1Sc & Div 307.
3
Mark v. Mark [2006] 1 AC 98.
4
Ibid.
5
Winans v. A-G [1904] AC 287.
4. In English courts, the question of where a person is domiciled is decided
according to English law using the traditional concept of domicile. 6 So whether a
person who has a domicile of origin in England acquires a domicile of choice in
France is decided according to the English law of domicile and not the French
concept of domicile.

3..2.2Species of domicile

3. 2.2.1 Domicile of origin

The domicile which one acquires at birth is known as the domicile of origin. The
domicile of origin is located where the father was domiciled at the child’s birth, if the
child is legitimate7; where the mother was domiciled, if illegitimate 8 ( and even if
subsequently legitimated) or the child though legitimate is born after the father’s
death.9 An adopted child probably acquires a new domicile of origin of the adoptive
parents.10 A foundling’s domicile of origin is in the country he was found. 11

There is a strong presumption of continuing a domicile of origin. Thus in Ramsay v.

Liverpool Royal Infirmary12 it was held that a man who had lived in England for the
last 36 years of his life never lost his domicile of origin in Scotland and died
domiciled in Scotland. In Winans v. A-G13 a man who had lived in England for the
last 37 years of his life was held not to have lost his domicile of origin which he had
not visited for the last 47 years of his life. Again in IRC v. Bullock14although a man
had lived in England for 44 years, he was held not to have lost his domicile of origin.
In Cyganik v. Agulian15a man who had lived and worked in England for 43 years was
held not to have lost his domicile of origin in Cyprus. A domicile of origin is not lost
by mere abandonment. It continues until an individual acquires a domicile of
choice.16 In this case Mr. Bell’s domicile was Jamaican. At the age of 35 he went to
Scotland but for a few years he was not certain whether he wanted to live in
Scotland or England or some other country. It was held that during the period before
he eventually decided to settle down in Scotland his domicile continued to be his
domicile of origin, i.e. Jamaican. Even when a domicile of choice is acquired, the
domicile of origin remains in the background and revives if the domicile of choice is
abandoned without immediately acquiring a new domicile of choice. In Tee v. Tee17 a
man whose domicile of origin was in England acquired a domicile of choice in one of
the states of the United States. Subsequently, he went to work in Germany but did
not acquire a German domicile as initially he wanted to return to the United States
and later wanted to return to England. When he instituted divorce proceedings while
still in Germany it was held that he was domiciled in England.

6
Re Annesley [1926] Ch 692.
7
Udny v. Udny (1869) LR 1 Sc & Div 441.
8
Ibid.
9
Dicey and Morris, The Conflict of Laws.
10
Adoption and Children Act 2002, s. 65 (1) (a).
11
Dicey, Morris and Collins, Conflict of Laws.
12
[1930] AC 588.
13
[1904] AC 287.
14
[1976] 3 All ER 353.
15
[2006] 1 FCR 406.
16
Bell v. Kennedy (1868) LR 1Sc & Div 307.
17
[1974] 1 WLR 213.
3. 2.2.2 Domicile of dependency

At common law the domicile of a child under the age of majority was the same as
and changed with that of the appropriate parent, i.e. the father if legitimate, 18 the
mother if illegitimate19 or a legitimate child whose father had died.20 In Re
Beaumont21 a widow who lived in Scotland with her children remarried and went to
live in England with her children except one who was left in the care of an aunt in
Scotland. It was held that this child’s domicile continued to be Scottish. This case
suggests that the rule that the child’s domicile of dependency changed with that of
the mother was not always adhered to when the child had a dependent domicile on
the mother. Under the Domicile and Matrimonial Proceedings Act 1973 the domicile
of dependency of a child whose parents are living apart shall be that of the mother
(a) if he has his home with his mother and no home with the father or (b) he has had
a home with the mother but has not subsequently had a home with his father. A
child who has a domicile of dependency on the mother, continues to have her
domicile after her death unless he acquires a home with the father.

A child becomes capable of acquiring a domicile of choice either when s/he reaches
the age of 16 or marries under that age.22 It should be noted that a child cannot get
married in England under the age of 16 but in some countries it is possible to get
married even under the age of 16 and a child from a foreign country may be involved
in court proceedings in England.

In Harrison v. Harrison23 Harrison was born with an English domicile of origin and at
the age of 18 (the age of majority at this time was 21) his parents went to South
Australia and acquired a South Australian domicile. Although he continued to live in
England, he acquired a South Australian domicile of dependency. When he was 20
he emigrated to New Zealand, intending to live there permanently. He married a
New Zealander. But shortly afterwards he returned to England. It was held that
when he was 21 he lost his South Australian domicile of dependency and as he had
not acquired a New Zealand domicile of choice his English domicile of origin revived.

A mentally disordered person cannot acquire a domicile of choice and retains the
domicile s/he had immediately before becoming mentally incapable.

Married women – Before January 1st 1974, on marriage a woman acquired her
husband’s domicile as a domicile of dependency and her domicile changed with that
of her husband.24 On her husband’s death or divorce from her husband the woman
continued her husband’s domicile at the date of death or divorce as her domicile of
choice25 (or of origin if that was also her domicile of origin) unless and until she
acquired a new domicile of choice. The Domicile and Matrimonial Proceedings Act
abolished the domicile of dependency of a married woman so that women who
18
Forbes v Forbes (1854) Kay 341
19
Udny v. Udny (1869) LR 1 Sc & Div 441.
20
Potinger v. Wightman (1817) 3 Mer 67.
21
[1893] 3 Ch 490.
22
The Domicile and Matrimonial Proceedings Act 1973, s. 3 (1).
23
[1953] 1 WLR 865.
24
Lord Advocate v. Jaffrey [1921] 1 AC 146.
25
Re Wallach [1950] 1 All ER 199.
married after 1974 no longer have a domicile of dependency on the husband. The
Act also affected women who married before 1974. According to s. 1 (2) of the Act a
woman who married before the Act lost her domicile of dependency in 1974 but
continued to retain her husband’s domicile as a domicile of choice (or a domicile of
origin if that was also her domicile of origin), unless and until she acquired a new
domicile of choice on or after 1974 or her domicile of origin revived after abandoning
one domicile of choice but before she acquired a new domicile of choice. In IRC v.
Duchess of Portland26 the Duchess, whose domicile of origin was Quebec, married in
England in 1948 and acquired an English domicile of dependency. It was held that
on 1 January 1974 her English domicile of dependence was converted to an English
domicile of choice, although she had intended to return to Canada.

3. 2.2.3 Domicile of choice

To acquire a domicile of choice a person must establish residence in a country and

form the intention of residing there permanently. 27 Residence in a country, even for
a long period, will not result in the acquisition of a domicile of choice if the necessary
intention is lacking. Similarly if a person boards a plane to go to another country with
the intention of residing their permanently, but dies of a heart attack before s/he
arrives in that country, s/he has not acquired a domicile of choice in the new country
at the date of death.

Residence – “Residence in a country for the purposes of the law of domicile is

physical presence in that country as an inhabitant of it.” 28 The length of residence is
immaterial. In Jopp v. Wood29 residence in India for 25 years did not give a person
an Indian domicil as he intended to return to Scotland. Also in IRC v. Bullock30
residence in England for over 40 years did not give a person an English domicile as
he intended to return to Nova Scotia should his wife predecease him. On the other
hand, residence, even for a short time is sufficient for the acquisition of a domicil of
choice, provided the requisite intent ion of residing permanently in the country is
there.31

In Puttick v. A-G32 it was held that a domicile of choice cannot be acquired if the
residence in England was unlawful. However, in Mark v. Mark33 it was held that a
domicile can be acquired even when the residence in England is unlawful. In
Szechter v. Szechter34 it was held that if a person wished to remain in England,
despite the possibility that the Secretary of State for the Home Department may not
permit continued residence in England, was able to acquire a domicile of choice in
England.

26
[1982] Ch 314.
27
Mark v. Mark [2006] 1 AC 98.
28
Ibid.
29
(1865) 4 De GJ & Sm 616.
30
[1976] 3 All ER 353.
31
Hodgson v. de Beauchesne (1858) 12 Moo PCC 285.
32
[1980] Fam 1.
33
[2006] 1 AC 98.
34
[1971] P 286.
In Plummer v. IRC35 a person had two homes, one in England and one in Guernsey
where her family lived. It was held that Guernsey was not her chief residence and so
she had not acquired a domicile there.

Intention – To acquire a domicile of choice there must be an intention to reside in a

particular country permanently or indefinitely. If a person lives in a country only for a
specific purpose, example for employment, and intends to return to his original
country when the purpose is accomplished, that person does not acquire a domicile
of choice in that country.36 In IRC v. Bullock37 a man who had his domicile of origin in
Nova Scotia, lived in England for 44 years but intended to return to Canada, should
his wife predecease him. It was held that he had not acquired a domicile of choice in
England.

In Doucet v. Geoghegan38 a person who intended to remain England, but to return to

France if he ‘made his fortune’ was held to have acquired a domicile of choice in
England, as his intention of going to France was based on a vague contingency.
Again in Re Furse39 where a person intended to leave England if he ceased to be
able to lead an active life on his farm, was held not to prevent him from acquiring a
domicile of choice in England. In Lawrence v. Lawrence40 a person acquired a
domicile in Brazil despite his intention to leave Brazil in the event of a revolution and
things got ‘badly out of hand’.

Loss of domicile of choice – A person abandons his domicile of choice by ceasing to

reside in a country and by ceasing to intend to reside there permanently or
indefinitely.41 It is not lost simply by giving up residence or simply by ceasing to
intend to reside. Both residence and intention must be given up to lose a domicile of
choice.

3. 2.3 Domicile under the Brussels Regulation

Under the Brussels Regulation ‘domicile’ has a different meaning to the common law
concept of domicile. The Civil Jurisdiction and Judgments Order 2001, SI
2001/3929, Sch 1, para 9 (2), (6) states that an individual is domiciled in England if
s/he is resident in England and has a substantial connection with England.
Residence of 3 months raises a presumption of substantial connection, but this
presumption can be rebutted by evidence to the contrary.

3. 3 Residence

3. 3. 1 Ordinary residence

For a person to acquire ‘ordinary residence’ in a country s/he must reside in the
country voluntarily and for settled purposes such as education, business,
employment, health, family. There must be physical presence with some degree of
35
[1988] 1 WLR 292.
36
Irvin v. Irvin [2001] 1 FLR 178.
37
[1976] 1 WLR 1178.
38
(1878) 9 Ch D 441.
39
[1980] 3 All ER 838.
40
[1985] 1 All ER 506.
41
Udny v. Udny (1869) LR 1 Sc & Div 441.
continuity, although there may be occasional temporary absences. Intention to
reside is not sufficient. There must also be physical presence. A person can be
ordinarily resident in more than one country at the same time – IRC v. Lysaght42
where a man was ordinarily resident in the Republic of Ireland but he was also
ordinarily resident in England for income tax purposes as he came to England for
business reasons for one week in each month and stayed in an hotel.

Ordinary residence is a significant connecting factor for the purposes of immigration,

social security law and taxation.

3. 3.2 Habitual residence

Habitual residence is a connecting factor for uniform jurisdictional rules for divorce,
separation and annulment in the EU, child abduction, international adoptions, income
support etc.

A person can be habitually resident in more than one country. It is also possible for
a person not to be habitually resident in any country.

To acquire a habitual residence there must be residence for an appreciable period of

time and a settled intention to reside. 43

Residence – This does not mean physical presence at all times. Habitual residence
is not lost by temporary absences. In Nessa v. Chief Adjudication Officer 44 [1999]
1WLR 1937 it was held that a woman who arrived in England from Bangladesh was
not entitled to income support 4 days after she came to England, although she had a
right of abode in the UK and had come to England with the settled intention of
remaining in England. This woman would have lost her habitual residence in
Bangladesh when she left that country but did not immediately acquire a habitual
residence in England, which meant she was not habitually resident in any country
until she had lived in England for some time. In Swaddling v. Adjudication Officer45
the claimant had left England when he was 23 and had gone to work in France.
After 14 years he lost his job and returned to England. The issue was whether he
was entitled to income support as soon as he returned to England. The ECJ said
that EC Regulation 1408/71 which deals with income support for employed persons
did not permit the UK to require residence for an appreciable period of time.

A settled intention – A person can have a settled intention even if s/he comes to
England for a limited period such as education, employment.

Voluntary – In the case of adults the residence must be voluntary.

Children – If the parents are living together and the child is living with them the child
is habitually resident in the same country as that of the parents. If the parents are
habitually resident in England but the child is born while they are on holiday in a
foreign country, the child is habitually resident in England from birth, even prior to

42
[1928] AC 234.
43
Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562.
44
[1999] 1 WLR 1937.
45
Case C-90/97 [1999] ECR 1-1075.
arriving in England. Where both parents have joint parental responsibility one parent
cannot unilaterally change the habitual residence of the child. If one parent has sole
custody of the child, the child’s habitual residence will be that of that parent.