1902 Encyclopedia > Domicile

Domicile




DOMICILE, in law, may be defined generally as the place of a man's permanent abode ; but a precise definition of the word is a matter of acknowledged difficulty. Its use in jurisprudence is to fix the legal rights of a person in certain cases where it is felt that the application of the law of the country to which he owes allegiance on the one hand, or of the country in which for the moment he happens to be, would be attended with inconvenience. Thus an English citizen who, for purposes of business, health, &c, has for many years permanently resided in France, has, let us suppose, died during a casual visit to Denmark. The question would arise under which of the three systems of law—English, French, or German—the validity of his will, the succession to his estate, &c, would be determined. Or, again, a French subject habitually resident in England, but not naturalized, might sue for a dissolution of his marriage in the matrimonial courts of this country, and it would be generally admitted that our courts in such a case were entitled to exercise jurisdiction, and that their decision ought to be received as determining the status of the persons concerned, just as fully as if they had been natural-born subjects of the Crown. In such cases there is a general agreement that a man's legal character, so to speak, should be determined by his domicile, rather than by his political nationality or his residence for the time being. We shall notice briefly the conditions of residence under which domicile may generally be established.

The Roman jurists defined domicile to be the place "ubi quis lare m rerumque ac fortunarum summam constituit : unde rursus non sit discossurus si nihil avocet : unde cum profectus est, peregrinari videtur : quo si rediit peregrinari jam destitit." The general result of the definitions to be found in writers on the civil law is to make that place the domicile which may be described as the head-quarters of the person concerned, or, as it is expressed in the Code Civile, " le lieu ou il a son principal établissement." But here characteristic difficulties embarrassed the civil lawyers. A man's habits of life might point equally to two places as his head-quarters. It might be impossible to say which of them was the principal seat of his business. Which of the two in such a case is the legal domicile. Or can the same person at the same time have two domiciles 1 The two essential things are residence and the intention of remain-ing. Story's definition is, " That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom." Change of residence not intended to be permanent would not create a new domicile. Cases will readily suggest themselves in which the question of intention may be surrounded with difficulties.

The following summary follows the general rules laid down by Story for determining the domicile of a person (Conflict of Laws, sec. 46). The child takes the domicile of the father, except in the case of an illegitimate child, which takes the domicile of the mother. Minors follow the changes of the father's domicile ; and a married woman follows the domicile of her husband. The place of residence is prima facie the domicile; and when a person removes to another place with the intention of making it hispermanent residence, that place becomes his domicile. When a person has removed to another place with the intention of remain-ing there for an indefinite time, that is his domicile, though he may have a general intention of returning at some future time. In general the domicile of a married man is the place where his family permanently resides, even though he habitually transacts his business elsewhere. When a married mau has two places of residence, that will be his domicile " which he himself selects or describes or deems to be his home, or which appears to be the centre of his affairs, or where he votes or exercises the rights and duties of a citizen." An unmarried man's domicile is where he transacts his business or exercises municipal duties or privileges. Compulsory detention will not create a domicile. A domicile once established remains until a new one has been acquired j but ambassadors resident in a foreign, country retain their domicile of nationality.

To these general rules may be added some of the prin-ciples laid down in recent cases by the English courts. The distinction between the question of domicile and that of naturalization or allegiance is clearly pointed out in Haldane v. Eckford (Law Reports, 8 Equity, 631) where it is said that to effect a change of domicile it is not necessary that a man should do all in his power to divest himself of his original nationality (exuere patriam), it being sufficient that there should be a change of residence of a permanent character voluntarily assumed. And in Udny v. Udny (Law Reports, 1 House of Lords, Scotch Appeals) Lord Westbury said : " To suppose that for a change of domicile there must be a change of natural allegiance is to confound the political and civil status, to destroy the distinction between patria and domicilium." So the lord chancellor: " A man may change his domicile as often as he pleases, but not his allegiance." In the British empire, composed as it is of communities having each its own system of law, there may be numberless domiciles under one allegiance. In the first of the cases above mentioned the question was as to the domicile of a testator, whose domicile of origin was Scotch, who was a servant of the East India Company for thirty-three years, and who on leaving India went to Jersey, where he lived continuously for twenty-five years till his death. The Scotch domicile reverted on his leaving India, but was held to have been lost by the residence in Jersey, where a new domicile was acquired. This is a fair sample of the cases which frequently arise in British courts on the question of domicile. In the second of the cases mentioned above it was held to be " a settled principle that no man shall be without a domicile, and to secure this end the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of his mother, if the child be illegitimate. This is called the domicile of origin, and is involuntary. It is the creation of the law, not of the party. It may be extinguished by act of law, as for example by sentence of death or exile for life, which destroys the status civilis of the criminal; but it cannot be destroyed by the will and act of the party. Domicile of choice is the creation of the party. When a domicile of choice is acquired, the domicile of origin is in abeyance, but is not absolutely extinguished or obliterated. When a domicile of choice is abandoned, the domicile of origin revives, a special intention to revert to it not being necessary. A natural-born Englishman may domicile himself in Holland, but if he breaks up his establishment there and quits Holland, declariug that he will never return, it is absurd to suppose that his Dutch domicile clings to him until he has set up his tabernacle elsewhere."—Per Lord Westbury. These extracts, it will be seen, state even more strongly than the corresponding rule adopted by Story the position that the original domicile differs from an acquired domicile, in being suspended rather than destroyed by the acquisition of a new domicile. One of the law lords in Udny v. Udny even finds fault with Story's use of the phrase " to reacquire a native domicile." The native domicile is not reacquired but restored ipso facto by the abandonment of the acquired domicile.





The intention necessary to effect a change of domicile may be illustrated by the following cases. In the case of Douglas v. Douglas (12 Equity, 617), R , son of a domiciled
Scotchman, entered the Home Office, London, in 1792, re-mained till 1802, thereafter having married an English lady, lived in England in hired houses, and finally settled in Scot-land and died there. It was held that he had not lost his domicile of origin. The testator in the case, the son of R , was born in London in 1803 during a visit of his parents to London, lived from the age of thirteen with his parents in Scotland, paying occasional visits to England till his mother's death in 1857, after which he let his family estate in Scotland, and lived chiefly in England in hired houses. It was held that his domicile was Scotch. The intention required to create a new domicile is an intention to settle in a new country as a permanent home, and this is sufficient without any intention to change civil status. In another case (Brunei v. Brunei, 12 Equity, 298), where a French subject had established himself in business in England, and resided there continuously for thirty years, making only occasional visits to France, but had refused to uke out letters of naturalization on the ground that he might return to France, and would not give up his status as a French citizen, it was held, notwithstanding, that he had lost his domicile of origin, and had acquired an English domicile.

The effect of domicile on the rights and duties of parties is even more difficult to state. Continental jurists draw a distinction between personal and real laws,—the former being supposed to fix the legal character of the person and accompany him wherever he may be, the latter dealing with things only. In matters covered by the former, there-fore, the domicile prevails ; while things are governed by the law of the place in which they are. If the distinction were maintainable it would still be of little use in fixing the extent of the operations of the law of domicile, because one large class of real laws, that dealing with movables, is universally admitted to be governed by domicile ; while a large but undefined class of personal laws would certainly not be acted on by foreign states, e.g., where the law of domicile fixes with incapacity persons professing a religion contrary to that established by the state. There is no uniformity of practice or opinion on this point in modern jurisprudence. Story considers the following to be the best established principles in England and America on the point of personal capacity or status:—

1. The capacity, state, and condition of persons according to the law of their domicile, will generally be regarded as to acts done, rights acquired, and contracts made in the place of their domicile touching property situate therein. If valid or invalid there, they will be valid or invalid everywdiere. 2. As to acts done, &c, in other countries touching the property therein, the law of such countries, as to capacity, &c, and not the law of domicile, will generally prevail. Thus '' in questions of minority or majority, com -petency to marry, incapacities incident to coverture, guardianship, emancipation, and other personal qualities and disabilities," the lex loci contractus aut actus, and not the lex domicilii ought to prevail, e.g., if a person over 21 but under 25 years of age has his domicile in a country which fixes majority at 25, he may make generally a valid contract, even of marriage, in a country which fixes majority at 21. 3. Personal disqualifications not arising from the law of nature, especially such as are penal, as disqualifications for heresy, popish recusancy, &c, are not enforced in any other country. The refusal of non-slaveholding States to recognise the status of slavery is an example. 4. Questions of legitimacy are generally to be decided by the law of the place where the marriage was celebrated. When issue bom before marriage may by the law of the country of their birth be legitimated by the subsequent marriage of the parents, such legitimacy would be recognized in other countries. (But see BASTARD and MARRIAGE).

The operation of the law of domicile is most free from doubt in questions touching personal or movable property. Real property is governed by the fa loci; but personal property has in law no locality. On this point English law is now substantially in harmony with Continental jurisprudence. The principle that personal property is subject to the law of the owner's domicile is fully recognized in the distribution of the estate of a person deceased, whether with or without a will. The capacity of a person to make a will, the validity of the will, and its effect, are to be determined by the law of his actual domicile in the case of movable property. In the case of real property, on the other hand, these questions must be decided by the law of the country in which it is situated. It was doubted by Story whether a will valid according to testator's domicile at the time of its execution would be affected by a sub-sequent change of domicile. A recent case (Lynch v. Government of Paraguay) decided that personal property in England is governed by the law of testator's domicile at the time of his death. In this case the testator, a domiciled Paraguayan, died leaving personal property in England ; and between his death and the application for probate a decree of the Government of Paraguay declared that all the property of the deceased, wherever situated, was the property of the state of Paraguay. The court, nevertheless, held that the property in England must be governed by the law of Paraguay as at the time of the death (2 Probate and Matrimonial Cases, 268). So in cases of intestate succes-sion, the law of the actual domicile of the intestate at the time of his death governs his personal property everywhere. The persons entitled, the proportions in which they are to take, <fcc., must be settled by the law of the domicile, how-ever different that may be from the law of the country in which the goods are.

The following statutes relating to the effect of domicile on wills were passed in 1861 :—
24 and 25 Vict. c. 114. Wills made out of the United Kingdom by British subjects (whatever may be the domicile of such person at the time of making the same or at the time of death) shall, as regards personal estate be held to be well executed, if the same be made according to (1), the forms required by the law of the place wdiere the same were made, or (2), the place where such person was domiciled when the same were made, or (3), by the laws in force in that part of her Majesty's dominion where he had his domicile of origin. Willsmade byany British subject (whatevermay be his domicile) shall, as regards personal estate, be well executed if they are according to the forms then required in that part of the United Kingdom in which they are made. No will or other testa-mentary disposition shall be held to be revoked or become valid, nor shall the construction thereof be altered by reason of any subsequent change of domicile.

24 and 25 Vict. c. 121 recites that by the operation of the law of domicile the expectation and belief of British subjects dying abroad with regard to the distribution of their property are often defeated, and enacts that when a convention has been made between Her Majesty and any foreign country, it may be declared and shall be enacted that no British subject dying in such country shall be deemed to have acquired a domicile therein, unless he has been resident in such country for one year previous to death, and has made a declaration in writing of his intention to become domiciled; and British subjects so dying without having so resided and made such declaration shall be deemed for all purposes of testate or intestate succession as to movables to retain the domicile he possessed at the time of going to reside in such foreign country. Similar exemptions are conferred on the subjects of the foreign state dying in Great Britain or Ireland. But the Act does not apply to foreigners who have obtained letters of naturalization in any part of Her Majesty's dominions. (E. R.)


Footnotes

Some Koman jurists, however, maintained that a man might be without any domicile at all, as for example when he has definitely abandoned his old domicile, and is travelling in search of a new abode. It is said that, when a domicile different from that of birth has been acquired and is abandoned, the domicile of birth reverts the moment the other is given up. " The native domicile easily reverts."

When the foreign law which would otherwise operate as lex domicilii is repugnant to the moral principles of the country in which it is sought to be enforced, the lex domicilii would not be allowed to | prevail.







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