Mark v Mark

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date30 June 2005
Neutral Citation[2005] UKHL 42
Date30 June 2005

[2005] UKHL 42


Appellate Committee

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Phillips of Worth Matravers

Baroness Hale of Richmond



Charles Howard QC

Philip Marshall

Deepak Nagpal

(instructed by Hughes Fowler Carruthers)


Chima Umezuruike

Adedamola Aderemi

Razak Atunwa

(instructed by Osibanjo & Co)


I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Baroness Hale of Richmond. For the reasons they give, with which I agree, I would dismiss this appeal.


I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I would dismiss this appeal.


My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with it, and for the reasons that she gives I would dismiss the appeal. I should like however to add a few comments of my own on the question whether, if a domicile of choice is to be acquired, a person must be lawfully present in the country where he or she intends to remain indefinitely.


The answer to this question is, I think, to be found in the distinction to which Lord Westbury drew attention at the start of his speech in Udny v Udny (1869) LR 1 Sc & Div 441, 457:

"The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend."


Translated into language with which we are familiar today, the point that Lord Westbury was making was that cases where a question of public law is in issue must be distinguished from cases where the issue is one of private law. Public law issues raise questions which concern what Lord Westbury described as the person's political status. The criteria by which status for the purpose of these questions is to be judged may differ from country to country, according to the rules that it lays down as to who may lawfully enter or lawfully remain there. Private law issues, on the other hand, are referred to the law of the person's domicile. The criteria for the determination of a person's domicile are governed by a single principle which ought to be capable of being applied universally. The importance of this distinction has not always been recognised.


As Mr Nicholls for the Queen's Proctor observed in his written case, the proposition that to acquire a domicile of choice a person must be lawfully present in the country with the intention of remaining indefinitely can be traced back to the Roman jurists. In Ex parte Donelly, 1915 WLD 29, a husband had been convicted of drugs offences in South Africa and after serving a period of imprisonment was deported to the United States of America. The wife then applied in South Africa for leave to sue her husband for restitution of conjugal rights or for divorce. Holding that the court had no jurisdiction, Mason J said at p 30:

"A person, it is true, may select any place he likes as his domicile, provided, says the Digest (50, 1, 31), it has not been prohibited for him.

Now in the present case the husband cannot have a true domicile in fact in South Africa; he is liable to instant punishment and deportation if he returns."

The decision in that case was followed, on similar facts, in Ex parte Gordon, 1937 WLD 35. In these two cases it was held that the effect of the husband's deportation was to extinguish his domicile of origin. But the line of reasoning that was adopted would have prevented a domicile of choice from being acquired in the first place if the person was unable to enter the country lawfully: see Solomon v Solomon (1912) 29 WN(NSW) 68 in which was held that unlawful residence in New South Wales prevented the acquisition of a domicile of choice there.


The Digest 50, 1, 31, in a fragment attributed to Marcellus, does indeed state:

"Nihil est impedimento, quo minus quis ubi velit habeat domicilium, quod ei interdictum non sit. [There is no restriction on the place where a person may have his domicilium, so long as it is not prohibited for him.]"

But it is much less clear whether, when Marcellus used the word domicilium in this passage, he was talking about what Lord Westbury described as the person's civil law status, which is the private law context in which we now use the expression "domicile".


The chapter of the Digest in which the fragment appears is headed "Ad municipalem et de incolis". A municipium in Roman law was a town, particularly a town in Italy, which possessed the right of Roman citizenship but was governed by its own laws. Chapter 50 deals with the rights of persons resident in a municipium and describes the rules by which it was determined whether a person had a domicilium there. As for incolae, the following definition is provided: Incola est, qui in aliqua regione domicilium suum contulit, quem Graeci p??o??o? appellant. [An incola is a person who has taken up his domicilum in a place, whom the Greeks call a p??o??os.]: Digest, 50, 16, 239. The Greek word p??o??os was regarded by Justinian as having the same meaning as the Latin word colonus: Justinian, 1, 34, 1. As Buckland, A Textbook of Roman Law, 3rd ed (1963) p 86, note 14 explains, persons resident in a community had widely different civil rights from the point of view of civitas according to their classification in society. These rights included the use of public facilities such as baths, and the right to invoke the civil jurisdiction of the magistrate. Leaving aside those residents who because they were cives were specially privileged, there were various other classes of residents such as coloni, or incolae, whose rights were more or less restricted according to the class in which the person was placed. These disabilities related to matters of public as well as private law. Persons resident in the Latin colonies, for example, were on a level with Romans in the ordinary relations of private law, but they could not serve in Roman legions or hold a Roman magistracy: Buckland, pp 92–93.


It would not be surprising to find that there was a rule in Roman law that a person had to be lawfully resident in the community before he could acquire a domicilium there, as the law did not distinguish between the public and the private law consequences of his presence in the community. But I think that the concept embraced by the word domicilium in Roman law is more accurately reflected today, as it is in civilian jurisdictions, by the words "home" or "residence" than by the word "domicile". The word "home" in article 8(1) of the European Convention for the Protection of Fundamental Rights and Freedoms, for example, is expressed in other languages as "suo domicile", "proprio domicile" and "suo domicilio". With us the word "domicile" has acquired a narrower meaning. It refers to what Lord Westbury described as a person's civil status for the purpose of determining various rights in private law.


In Puttick v Attorney-General [1980] Fam 1 the petitioner had been permitted to enter the United Kingdom. She sought a declaration that a marriage which she had celebrated following her arrival in this country was a valid and subsisting marriage, as she had acquired a domicile of choice in England. Sir George Baker P held that, as her leave to enter had been obtained by the fraudulent production of an invalid passport, she was barred from acquiring a domicile of choice here. At p 19C-D he cited, in support of this view, the following passage in Dicey & Morris, The Conflict of Laws, 9th ed (1973), p 96:

"It has been held that a domicile of choice cannot be acquired by illegal residence. The reason for this rule is that a court cannot allow a person to acquire a domicile in defiance of the law which that court itself administers."


This passage has been retained in the current edition: Dicey & Morris, The Conflict of Laws, 13th ed (2000), Vol 1, para 6–037. The editors cite Puttick as authority for it, as well as cases from Australia and South Africa. As Anton and Beaumont, Private International Law, 2nd ed (Edinburgh, 1990), point out, at p 140, however, these propositions are perfectly understandable where the issue is one of public law. But they find no similar justification in matters of private law. Dicey & Morris, para 6–037, states that it is an open question whether the courts of one country would hold that a person could acquire a domicile of choice in some other country by residence there which was illegal under the law of the second country. The better view would seem to be that, as our courts do not apply the public policy of a foreign state, the illegality of the residence...

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