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The Requisite Intention for the Acquisition of Domicile of Choice: Permanent or Indefinite – A Comparative Perspective

Document Cited authorities 17 Cited in Related
Vincent
AuthorAnthony O. Nwafor
Pages327-344
Date01 October 2013
DOI10.3366/ajicl.2013.0067
Published date01 October 2013
INTRODUCTION

In determining the jurisdiction of court and the applicable law in cases where a choice of law rules is involved, the courts would always seek to find the most common connecting factor that binds the parties to a particular jurisdiction. Various concepts are employed in different jurisdictions in determining the personal law of the propositus and invariably the applicable law and jurisdiction of the courts. In most of the Continental European and other civil law countries, nationality, that is, the law of the country of which the person is a citizen, is the basic connecting factor. In countries that pay much regard to religious adherence such as India and Cyprus, personal law is determined based on the individual's religion such as Muslim, Hindu or Christian.1

An example is given of the position in Cyprus where the marriage law of the Orthodox, Roman Catholic, Maronite and Armenian Churches, Islamic marriage law and the received English law as modified by local statutes, each applies depending on the religion, origin and nationality of the parties. See C. M. V. Clarkson and Jonathan Hill, The Conflict of Laws, 3rd edn, Oxford University Press (2006), p. 19.

In most common law countries, domicile is the most important connecting factor. It is a person's domicile that usually determines which law governs his or her family relations, which court has jurisdiction in matters of his or her status, and whether the judgments of some foreign courts could be enforced against him or her locally.2

C. F. Forsyth, Private International Law, 4th edn, Juta (2003), p. 119.

Domicile is also a very important concept in jurisdictions with mixed legal families such as Lesotho and South Africa, where the concepts of Roman Dutch law and Common Law apply equally

There is, however, a disagreement in defining the concept and its scope at common law. In some jurisdictions, the parliament has intervened by enacting statutory provisions aimed at streamlining the concept and its applications within those jurisdictions. Domicile has many facets such as domicile of origin, domicile of dependence and domicile of choice. This paper is for convenience narrowed down to domicile of choice.

 MEANING OF DOMICILE

Domicile could be seen as a familiar concept but certainly not an easy one to define.3

To the layman, ‘domicile means home’ as was held by Innes CJ in Gunn v Gunn (1910) TPD 432 at 427. This idea of domicile was described by Kahn as not only distressingly nude but also unfinished, for it does not take account of the circumstances under which the law assigns a domicile to the propositus in a country or area in which he does not have his home. Ellis Kahn, ‘The South African Law of Domicile of Natural Persons’, in B. Beinart, Wouter De Vos and J. D. Thomas (eds), Acta Juridica 1971, Juta (1972), p. 4.

It is familiar in the sense that it governs many aspects of a person's personal law such as the essential validity of a marriage, the effect of marriage on the proprietary rights of husband and wife, jurisdiction in divorce and nullity of marriage, legitimacy, legitimation and adoption, wills of movables, intestate succession to movables and inheritance by dependants.4

J. J. Fawcett and J. M. Carruthers, Cheshire, North & Fawcett Private International Law, 14th edn, Oxford University Press (2008), p. 154. See also Davies v Collins 2010 NSSC 457 (CanLII); Foote v Foote Estate 2011 ABCA 1 (CanLII); Re Foote Estate (2009) ABQB 654 (CanLII); Mark v Mark [2005] UKHL 42 para. 38.

 Domicile also features prominently in some jurisdictions for the purposes of the determination of political and civil rights such as voting, eligibility for office, entitlement to lower tuition rates at State universities, and as a jurisdictional basis for certain kinds of taxations such as an estate tax on intangible property (stocks and bonds), an income tax on income not earned in the state, and as key to diversity of citizenship jurisdictions in the national courts.5

Russell J. Weintraub, Commentary on the Conflict of Laws, 5th edn, Foundation Press (2006), p. 13.

One of the earliest definitions of domicile at common law is that of Lord Cranworth in Whicker v Hume,6

Whicker v Hume (1858) 7 HLC 124 at 160. In fairness to his Lordship, he did not approach the subject matter as though he was proffering a definition but merely drawing inference from existing opinions none which he apparently believes could stand as a definition, as he observed later in the judgment that the definitions were ‘all illustrations in which those who have made them have sought to rival one another by endeavouring, as far as they can, by some epigrammatic neatness or elegance of expression to gloss over the fact that, after all, they are endeavouring to explain something clarum per obscurum’.

where his Lordship said: ‘By domicile we mean home, the permanent home, and if you do not understand your permanent home, I'm afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it.’ Clarkson and Hill rationalised this definition as founded on the assumption that people are deemed to belong to the community in which they have made their home, that is, their centre of gravity.7

See Re Flynn [1968] 1 All ER 49.

 As members of that community, it is only right that the laws of the community be applied to them.8

Clarkson and Hill, The Conflict of Laws, supra note 1, pp. 20–1.

Simply belonging to a community, however, cannot be equated with the kind of affection which a person attaches to a place he regards as his home. In Re Foote Estate,9

Re Foote Estate, supra note 4, at para. 88 (CanLII).

a Canadian court defined ‘home’ as the place in which one's domestic affairs are centred, or the place where the centre of gravity of one's life is to be found.10

The court relied on the earlier decisions in Geothermal Energy New Zealand Ltd. v Commissioner of Inland Revenue (1979) 2 NZLR 324 and Re Erasti Petropoulos and Director-General of Social Security [1984] AATA 334.

 Implicit in this definition is that some level of physical presence, or personal activity, is required of a person at the place which he or she regards as his or her home. But that is not what the law says. A person could be found to be domiciled at a place where he or she has never set foot.11

This occurs mostly in domicile of dependence. See Fawcett and Carruthers, Cheshire, North & Fawcett Private International Law, supra note 4, pp. 174–9; David McClean and Kisch Beevers, Morris, The Conflict of Laws, 7th edn, Sweet and Maxwell (2009), pp. 45–9; Forsyth, Private International Law, supra note 2, pp. 149–55; Clarkson and Hill, The Conflict of Laws, supra note 1, pp. 27–31.

 Indeed, as argued by McClean and Beevers, domicile cannot be equated with home. A person may be domiciled in a country which is not and has never been his or her home. He or she may be homeless but must have a domicile.12

McClean and Beevers, Morris, The Conflict of Laws, ibid., p. 30.

 Castel and Walker similarly observed that every individual is regarded as belonging, at every stage of his or her life, to some community consisting of all persons domiciled in a particular legal unit, be it a country, a state, or, in Canada, a province or territory. An individual might have no permanent home, but the law requires him or her to have a domicile. He or she might have more than one home, but he or she must have only one domicile for any one purpose.13

J. Castel and J. Walker, Canadian Conflict of Laws, 6th edn, LexisNexis Butterworths (2005), p. 42.

 Domicile is a legal concept and is different from the popular concept of home. This was depicted in the definition proffered by Barry JP in Mason v Mason,14

Mason v Mason (1885) 4 EDC 330. Kahn sees this definition as more accurate, but not so satisfactory. See Kahn, ‘The South African Law of Domicile of Natural Persons’, supra note 3, p. 4. See also Bell v Kennedy (1868) LR 1 Sc & Div 307 at 320 per Lord Westbury.

 where domicile was defined as ‘the place or country which is considered by law to be a person's permanent home’. The reference to ‘permanent home’ in this context only serves to connect the person to a particular place or locality for the purposes of the law. That person's attitude towards that locality could be of little relevance so long as the purpose is served. Thus, in Berger & Engel Brewing Co v Dreyfus,15

Berger & Engel Brewing Co v Dreyfus 172 Mass 154 at 157, 51 NE 531 at 532 (1898) per Oliver Wendell Holmes J. For a critical discussion of these definitions, see Kahn, ‘The South African Law of Domicile of Natural Persons’, supra note 3, pp. 4–5. See also Robert Allen Leflar, American Conflicts Law, revd edn, Bobbs-Merrill (1968), p. 17, where domicile is defined as ‘a legal relation between a person and a place, created by the law and not by the person, and designed altogether to serve the law's purposes’, adopting the statement of Jessel MR in Doucet v Geoghegan (1878) 9 ChD 441 at 456 (CA). Cf. the South African court definition of the concept in Chinatex Oriental Trading Co v Erksine 1998 (4) SA 1087 (c) at 1093 G as an objective factual relation between a person and a particular jurisdictional area.

 the court defined domicile as the one technically pre-eminent headquarters, which, as a result of either fact or fiction, every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined

The problem of relying on a fiction in defining a concept (as in domicile) is that such definition is usually beclouded by artificial inferences and could be far removed from reality. Thus, a person may find him- or herself being subjected to the law of a country well beyond his or her reasonable contemplation. In Re Montizambert Estate,16

Re Montizambert Estate [1973] OJ No 1035 (QL) Ont. SC (HCJ).

Lerner J had cautioned that ‘while the law of domicile is sometimes, by its nature,...

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