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

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.¹1

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.²2

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

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.

Domicile could be seen as a familiar concept but certainly not an easy one to define.³3

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.

One of the earliest definitions of domicile at common law is that of Lord Cranworth in Whicker v Hume,⁶6

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’.

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,⁹9

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

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,¹⁶16

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