DOMICILE

MEANING

• Domicile which is a private international law or conflict of laws concept identifies a

person, in cases having a foreign element, with a territory subject to a single system of
law, which is regarded as his personal law.
• Domicile in India is an essential requirement for acquiring Indian citizenship.
• The term ‘Domicile’ is not defined in the constitution. Ordinarily, it means a permanent
home or place where a person resides with the intention of remaining there for an
indefinite period.
DEFINITION OF DOMICILE

• According to MORRIS - “It is important to identify an individual’s personal law, which

governs questions concerning the personal and proprietary relationships between
members of a family. Place of birth is an inadequate criteria by which to identify the
personal law”
• William vs Osenton 1914 The domicile of a person is in that country in which he either
has or is deemed by law to have his permanent home
• Whicker vs Hume 1958 By domicile we mean home the permanent home
GENERAL PRINCIPLES OF DOMICILE

• No person can be without a domicile;

• No person can at the same time have more than one domicile;
• An existing domicile is presumed to continue until it is proved that a new domicile has
been acquired; and
• Domicile denotes the connection of a person with a territorial system of law.
TYPES OF DOMICILE

• Domicile of Origin: The domicile attributed at the time of birth.

• Domicile of Choice: The domicile the competent person can acquire during his life time.
• Domicile of Dependency: The domicile of the dependent person is dependent on the
conduct of another
DOMICILE OF ORIGIN

• The domicile of origin of every person of legitimate birth is in the country in which at the
time of his birth his father was domiciled
• Domicile of origin is assigned by law to a child when it is born.
• The domicile of legitimate child is the domicile of his father at the time of birth of child.
• The domicile of illegitimate child origins from its mother at the time of its birth.
UDNY VS. UDNY 1869
• Colonel Udey was born in Leghorn 1779
• His father Consular Scottish Domicile of Origin.
• He joined Guards in 1797 and acquired property in London where he lived with his
family till 1884.
• He then left for France to avoid pressing creditors but did not acquire domicile of choice.
• At later date he fathered a child and then married the mother.
• The question before Scottish court whether the child was legitimate?
• Udnv vs. Udny

• “that no man shall be without a domicile, and secure this result the law
attributes to every individual as soon as he is born, the domicile of his
father, if the child is legitimate and the domicile of mother if illegitimate
this has been called the domicile of origin and is involuntary.
• Domicile of origin prevails until a new domicile has been acquired. But
the moment a person loses his acquired domicile his acquired domicile,
the domicile of origin springs back to him
ANSWER

• Udny had acquired a domicile of choice in

England he had abanonded it by departing
for France. His Scottish Domicile of origin
was revived.
DOMICILE OF CHOICE

• Every person who over the age of majority and is not mentally incapable is regarded by
English law as able to acquire domicile of choice by residing in a country with the present
intention of making it a permanent house.
• There are two requirements:
• 1. The fact of residence
• 2. Intention to reside
WINANS VS AG

• The question in this case is whether or not estate duty is payable on certain personal
property locally situated within the United Kingdom which belonged at the time of his
death to the late Mr. Winans, who died in 1897 in London, being an American citizen
domiciled in America.
• Winans was born in US 1823 and lived there till 1850.
• From 1893 he lived in London till he died in 1897.
• Issue: Whether Mr. Winans acquired the domicile in England
ANSWER

• The burden of proving the change of domicile lies on the person asserting the change.
• The intention of the person has to be proved.
• The court ruled in favour of the Winnas.
• the House of Lords held that a man of American domicile of origin who spent his last thirty
eight years of his life in England has not acquired a domicile of choice of England.
• Sons proved that “ he described himself as a citizen of America in all his ideas and
sympathies”
• Domicile of origin was retained.
RAMSAY VS LIVERPOOL ROYAL INFIRMARY
(1930)
• George Bowie was born in Scotland and worked for a time as a commercial traveler in
Glasgow.
• He gave up work in 1882 decided to live in Liverpool in 1892 where his brother and
sister resided.
• He lived in Liverpool till 1927 for 36 years until his death.
• He left behind the will which was valid under Scottish Law and not under British Law.
• It became necessary to determine his domicile for executing his will
ANSWER

• The House of Lords held despite the long stay in England, George Bowie had not
acquired the domicile of choice.
• He would have moved to England if those family members with whom he was living had
decide to move.
PRISONERS

• a person legally committed to prison as a punishment for a crime or while

awaiting trial.
• The essence of imprisonment is that the individual is deprived of his personal freedom to
move from place to place.
• The prisoner will retain the domicile that he possessed before his imprisonment.
REFUGEES

• a person who has been forced to leave their country in

order to escape war, persecution, or natural disaster.
• Refugees flee out of their country out of necessity.
• They might lodge a hope in their minds to return to the
country of origin when it becomes safe for them to do so.
• There is a presumption against the change of domicile in
such cases.
• It may be said what is dictated as necessity afterwards
becomes matter of choice.
FUGITIVES

• a person who has escaped from captivity or is

in hiding.
• A fugitive from justice may acquire domicile by
choice if it is clear that he intends to establish links
with his new new country.
• The court examines whether the individual has
remained in a particular country after he could
have returned back in safety.
DOMICILE OF DEPENDENTS

• At birth the child receives 2 domiciles

• 1. Origin
• 2. Dependence
• The domicile of origin will be overlaid by the domicile of dependency.
• Where the domicile of origin remains constant throughout life, the
domicile of choice changes with the domicile of person on whom the child
is dependent.
DEPENDENTS

• As per English law there are 3 categories of people regarded as

being subject to domicile of dependence:
• 1. Married Women
• 2. Children
• 3. Lunatic
MARRIED WOMEN

• As per English rule married women acquired the domicile of her husband
and her domicile will change with that of her husband.’
• This rule is now been abolished by sec 1 of The Domicile and
Matrimonial Proceedings Act 1973 which sates after 1 st Jan 1974 A
married women instead of having the husbands domicile shall choose her
domicile as that of a independent person.
 Husband left
A husband
to live in
and wife
Quensland
domiciled in
Scotland.
with consent LORD
of wife.
ADVOCATE
VS
Whether the JAFFREY
The wife
wife
remained in 1831
domiciled in
Scotland and
Scotland or
died.
Queensland ?
ANSWER

• House of Lords ruled that the wife was domiciled in Queensland even though she never
visited Queensland.
PREM PRATAP VS JAGAT PRATAP 1943

• A German Domiciled women married a Domiciled Indian and set up

matrimonial home in India. After some time the husband left the wife.
• The wife filed a suit for maintenance in Indian Court.
• The main defence of husband was the wife’s pre marriage domicile has
revived and therefore the court had no jurisdiction.
ANSWER

• The court rejected the plea of husband and observed that during
coverture domicile of wife remains that of husband.
CHILDREN

• Its general rule that at birth legitimate child will acquire

the domicile of its father and illegitimate child will
acquire the domicile of mother.
• As dependent domicile it would change with that of
parents.
EXAMPLE

• A father in Italy would acquire the domicile of origin in Italy

• But if the father acquired the domicile of choice in France.
• The child would then acquire the domicile of dependence in
France.
LEX DOMICILI
QUESTION OF LEGITIMACY
• It becomes necessary to check the validity of marriage of parents.
• In case of legitimate child’s parents are living apart and where the child
has the home with the mother the child will acquire the domicile of
mother. If he lives with father he will acquire the domicile of father,
• In situation where father dies the domicile of child will normally follow
mothers
ADOPTION

• In case of adoption such a child will be treated as if he were the

natural child of his adopted parents.
• From the date of adoption he will have the domicile of his
parents.
• A child is capable of acquiring independent domicile when
reaching age of 16 or if he marries under that age.
LUNATIC

• It is an agreed principle that the domicile of lunatic cannot be

changed by himself as he cannot have the requisite intention or
by the person to whose care he has been entrusted.
• Therefore an insane child will have domicile of origin at the
time of birth.
• If a person becomes lunatic after becoming major and after acquiring domicile of choice
he retains the domicile during the period of lunacy.
• As a general principle he is incapable of acquiring a fresh domicile or lose the existing
domicile.
• If a person is insane continuously both in infancy and when he reaches 16, his domicile
will change with that of his father.
• If a person becomes lunatic after 16, the domicile he had at that time could not be
changed as to allow this would be great damage to interest of others.
• Cheshire : the correct solution would be that the court should be entitled to change
lunatics domicile if it appears to be for his benefit. Interest of lunatic has to be given
paramount importance over interest of others.
THANK YOU