5
Domicile and residence

Meaning of domicile

Domicile is a connecting factor which links a person with a particular legal system, and the law of his domicile is his personal law. That law determines, in principle, whether a man or woman has legal capacity to marry, and how the estate of a deceased person is to be distributed. If a married person is domiciled in England, the English courts have jurisdiction to dissolve or annul his or her marriage. If a married person is domiciled in, say, France, then a divorce decree granted by the French courts to or against that person will be recognised in England. Apart from the conflict of laws itself, domicile is of significance in other areas of the law, especially tax law.

Since it is a connecting factor, a person's domicile must be ascertained by applying English law, and not in accordance with the rules of a foreign legal system.1

The general meaning of domicile is 'permanent home'. This seems clear enough, but the view expressed by Lord Cranworth V-C in Whicker v. Hume (1858)2 that a person's domicile is what he regards as his permanent home is far too simplistic and, indeed, somewhat misleading. It is true that for most people their domicile coincides with their permanent home. However, domicile is a legal concept and a person's 'basic' domicile is his domicile of origin, which is ascribed to him by law at his birth, and is not necessarily the country of his family's permanent home at that time. His domicile of dependence, whilst he is a minor, is the same as that of both or one of his parents, even though he may have no home with either. The ascertainment of a person's domicile of choice does depend upon showing that he intended to establish

____________________
1
Re Martin [1900] P 211; Re Annesley [1926] Ch. 692. By way of exception, but for jurisdictional and not for choice-of-law purposes, statutes have provided for reference to the foreign definition of domicile (Family Law Act 1986, s. 46(5)) and a definition different from that which is considered in this chapter (Civil Jurisdiction and Judgments Act 1982, ss. 41–6). As to the latter see pp. 138–9 below.
2
HLC 124 at 160.

-37-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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