AN APPRAISAL OF THE DOCTRINE OF DOMICILE UNDER THE PRIVATE INTERNATIONAL LAW

BY

OMOTAYO COMFORT OLUWATOBI MATRIC NO: 06/40IA151

BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW, UNIVERSITY OF ILORIN, ILORIN, NIGERIA, IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAW (LL.B HONS.) IN COMMON LAW.

APRIL 2011
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CERTIFICATION
This is to certify that this long essay: AN APPRAISAL OF THE DOCTRINE OF DOMICILE UNDER THE PRIVATE INTERNATIONAL LAW was written by OMOTAYO COMFORT OLUWATOBI. It has been read and approved as meeting part of the requirements for the award of Bachelor of Law (LL.B Hons.) Degree in Common Law in the Faculty of Law, University of Ilorin, Ilorin, Nigeria. DR. (MRS) NIMAT M. ABDULRAHEEM Supervisor DR. ADEDOYIN RAJI HOD of Host Dept. Dept. of Jurisprudence & International law .. PROF. A ZUBAIR HOD of Graduating Dept. Dept. of Islamic Law .. . DATE ... SIGNATURE DATE ...... DATE SIGNATURE ... SIGNATURE

DR. WAHAB O. EGBEWOLE

DATE

SIGNATURE

Dean, Faculty of Law

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EXTERNAL EXAMINER

DATE

SIGNATURE

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ABSTRACT
This write up is to assess the quality of the value of the doctrine of domicile under the Private International Law i. e Conflict of laws. Private International Law is that part of law of a country which deals with cases having a foreign element. It is therefore the that part of law that comes into into play whenever the issue before the affect some events/ facts/ transactions that are so closely connected with a foreign system of laws as to necessitate recourse to that system. The law pertaining to where a person intends to make his permanent home is subject to a lot of argument. No wonder domicile has been said to be easier describe than to define. There are indication from both local and foreign journals which indicate that there are conflicting understanding in the area of domicile. Under the Private International Law, the concept of domicile has several as well as area of applications, some of which include the acquisition and loss of domicile of choice, origin and dependence. In Nigeria, the doctrine of domicile is alien, a product of our colonial link with the British common law. Due to the diversi ethnicity and culture in Nigeria. The doctrine of domicile is based on its character subject to conflict based in the Nigerian context. This long essay identifies the various definition of domicile, the distinctive features of each type of domicile, their workings, variations and also their shortenings.

TABLE OF CONTENTS
COVER PAGE....i CERTIFICATION PAGE.....ii ABSTRACT...iii TABLE OF CONTENTS..................................................................................iv DEDICATION...viii ACKNOWLEDGEMENTix TABLE OF CASESx TABLE OF STATUTES....xii LIST OF ABBREVATIONS.xiii

CHAPTER 1 GENERAL INTRODUCTION 1.0.0: INTRODUCTION.1 1.1.0: BACKGROUND TO THE STUDY............3 1.2.0: OBJECTIVES OF STUDY..3 1.3.0: FOCUS OF STUDY...4 1.4.0: SCOPE OF STUDY4 1.5.0: METHODOLOGY.................5 1.6.0: LITERATURE REVIEW..5 1.7.0: CONCLUSION7

CHAPTER 2 DOCTRINE OF DOMICILE 2.0.0: INTRODUCTION8 2.1.0: DEFINITION OF DOMICILE .......................................................................9 2.2.0:ASCERTAINMENT OF DOMICILE16 2.3.0: DOMICILE AND NATIONALITY...................17 2.4.0: RULES AND TYPES OF DOMICILE.20
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2.5.0: CONCLUSION........................25

CHAPTER 3 ACQUISITION OF DOMICILE 3.0.0: INTRODUCTION27 3.1.0: ACQUISITION OF DOMICILE OF ORIGIN..28 3.2.0: ACQUISITION OF DOMICILE OF CHOICE.31 3.2.1.0: RESIDENCE (FACTUM) ..33 3.2.1.1: THE REQUISITE INTENTION (ANIMUS) 36 3.2.1.2: SPECIAL CASES IN ACQUISITION OF DOMICILE OF CHOICE...49 3.2.1.3: LOSS OF DOMICILE OF CHOICE..........................................................55 3.3.0: DOMICILE OF ORIGIN AND CHOICE CONTRASTED.......55 3.4.0: CHANGE OF DOMICILE AND NATIONALITY ...61 3.5.0: CONCLUSION....62

CHAPTER 4 DOMICILE OF DEPENDENT PERSONS 4.0.0: INTRODUCTION..64

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4.1.0: DOMICILE OF CHILDREN 64 4.2.0: DOMICILE OF MARRIED WOMEN....66 4.3.0: DOMICILE OF PERSON OF UNSOUND MIND 69 4.4.0: MERITS AND DEMERITS OF DOMICILE....70 4.5.0: CONCLUSION 72

CHAPTER 5 GENERAL CONCLUSION 5.0.0: CONCLUSION73 5.1.0: RECOMMENDATION.74 BIBILOGRAPHY.....................................76

DEDICATION To God be the glory for what He has done. I dedicate this work to God almighty for being everything I ever need throughout my course of study. To my parents I am dedicating this work to you too, most especially to my mother Mrs. Abosede Elizabeth I love you so much mummy and thank you for being there for me

ACKNOWLEDGEMENT Above all, I will forever be grateful to the Almighty God for everything, I will never fail to say thank you Jesus for being there for me and for being my pillar throughout my stay on this campus. To my darling parent, thanks for making life worth living, thanks for everything spent on me and for every support given you are the best and I love you so much. I wont fail to acknowledge all my lecturers right from 100L to this stage thanks for every knowledge youve imparted into me thank you so much for building me to be useful in this generation. And to my wonderful and eloquent supervisor Dr Mrs. N.M. Abdulraheem thank you for your support, guidance, correction and approval. I admire you amongst all the female lecturers in this faculty, you are the best. You are a gem. I will not fail to appreciate my friends though countless but some cant be excluded. Folaranmi Eniola Richard thanks for your love, you are the best. To my loving friend Adewole Adefunminiyi, thanks for your support .And to all my friends , kareem Temitope, Adeshina Aminat, Soremekun Oluwaseun, Runsewe Bimpe, Oluwole Olusegun, Egunjimi Emannuel. And to my neighbours in Kemtas. I cannot forget my siblings, thank you all for being there. I love you all. To my wonderful classmates I appreciate you all both friends and foes may we meet at the top. I will never forget my spiritual home the Redeemed Christian Fellowship (RCF)Shadow of the Almighty indeed it is the gathering of the liveliest and happiest people on campus, thank you all for your prayers and support. And to our patron Daddy Bamidele, I admire your courage and zeal, may the Lord continue to strengthen you. Thank you sir for your words of encouragement.

TABLE OF CASES

NIGERIA Adeyemi v Adeyemi (1962) LLR 90 @ 72 Enwonwu v Spira (1965) 2 All NLR 233 Fonseca v Passmen (1958) WRNLR 41 @ 42 Odiase v Odiase (1965) NMLR 196 Udom v Udom (1962) LLR 112 @ 117

GHANA Crammer v Crammer (1987) 1 FLR 116 Lloyd v Lloyd (1961) 2 FLR 349 Att. For Alberta v Cook ( 1926) AC 444

UNITED KINGDOM A. G v Pottinger (1861) 30 L J Ex 284 at 292 Bell v Kennedy(1808)LR .Sc & Div 307 Blender v Johnstone( 1769) LR IP & M 611 Bowie (Ramsay) v Liverpool Royal Infirmary(1930) AC 588 at 598 Collier v Rivas (1841) 2 Curt 855 Doucat v Geoghegeon (1878)L.R.9 Ch .D at 256 Fentiman (1991) CL. J 445
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Gulbenkian v Gulbenkian (1937) 4 All ER 618 at 612 Harrison v Harrison(1953) 1 WLR 865 Henderson v Henderson (1969)p. 77 at 80 Hodgson v De Beauchesne ( 1858) 12 Moo PCC 285 at 329, 330 IRC v Bullock (1976) WLR 1178 IRC v Duchess of Portland (1982) Ch 314 at 318- 319 Moorhouse v Lord (1863)10 HL Cas 27 at 285 Plentika v Plentika (1965) 109 Sol Jo 72 Plummer vIRC (1988)1 All ER 79 Putman v Johnson 10 Mass 488, 501(1813) Re Craignish (1892) 3 Ch 180, 192 Re Flynn (No 1 ) (1968) 1 WLR 103 Re Fulds Estate (No 3) (1968) p 615 at 684 Re Furse ( 1980) 3 All ER 838 Whicker v Hume(1858)7 H L Cas 124 at 160 White v Tenant (1880) WLR 790 Winans v A. G(1904) AC 287 Jopp v Wood (1865) 4 D.J & S.

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TABLE OF STATUES

AUSTRALIA Australian Family Law Act 1975 Australian Matrimonial Causes Act 1959 Australian Domicile Act 1982

CANADIAN Canadian Divorce Act 1968 Code of Domicile Code of Napoleon (French civil code) 1803

ENGLAND Domicile and Matrimonial Proceeding Act 1973

NEW ZEALAND New Zealand Domicile Act 1976

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LIST OF ABBREVIATIONS
A.C: Appeal Cases A.G: Attorney General ALL ER : All England Report All NLR: All Nigerian Law Report Beav: Beavan Charles, Reports Rolls court. Ch: Chancery Ch. D: Chancery Division Curt: Curties, W.C Reports Ecclestical Ed: Edition FLR: Federal Law Report H L Cas: House of Lords Cases LR: Law Report LR. Eq: Law Report Equity Cases LLR: Lagos Law Report NMLR: Nigerian Monthly Law Report NLR: Nigeria Law Report NNLR: Northern Nigeria Law Report NWLR: Nigerian Weekly Law Report WNLR: Western Nigeria Law Report WRNLR: Western Regional Nigeria Law Report WLR: Western Law Report

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CHAPTER 1 GENERAL INTRODUCTION

1.0.0: INTRODUCTION It has been universally recognized that questions affecting the personal status of a human being should be governed constantly by one and the same law irrespective of where he may happen to be or of where the facts giving rise to the question may have occurred. But unanimity goes no further, there is disagreement on two matters. What is the scope of this personal law, as it is called and should its criterion be domicile or nationality?1 In England, however it has long been settled that question affecting status are determined by the law of the domicile of a person and that broadly speaking such questions are those affecting family relations and family property. To be more precise, the following matters are to a greater or lesser extent governed by the personal law: the essential validity of marriage; the effect of marriage on the propriately rights of husband and wife; jurisdiction in divorce and nullity of marriage, though only to a limited degree; legitimacy, legitimating and adoption, wills of movables and intestate succession to movables. The concept of domicile however, is not uniform throughout

Cheshire and Norths :on the merits of nationality and domicile in pp 165- 167 of Private

International Law

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the world Domicile known as habitual residence to some and permanent residence to some people.2 The English concept of domicile is bedeviled by rules, these are complex often impossible to justify in policy terms and lead to uncertainty of outcome. Before looking at these rules in details, one preliminary matter should be considered. This is question of whether the same test for domicile applies regardless of the context I which the matter is raised. English law take the view that the test which determines the place of a mans domicile must remain constant no matter what the nature of the issue may be before the court. Domicile is regarded as a relative term which varies in meaning according to the different situation (e.g. divorce, taxation intestate succession) to which it is applicable. There are however types of domicile, domicile of origin: gotten from birth, domicile of choice: acquired in substitution for the present one and also domicile of dependent persons: acquire through the person they are depending on. These and many more are what is going to be discussed later. Domicile, in its appraisal, its type, workings and also shortenings.

Whicker v Hume (1858) 7 H L Cas 124 at 160

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1.1.0: BACKGROUND TO THE STUDY Until the beginning of the nineteenth century, domicile was universally recognized as the basis for the application of personal law.3 However, as a result of the influence of Maincini4 in the mid-nineteenth century some of the continental European countries adopted nationality in preference to domicile as the connecting factor for the ascertainment of personal laws. Since then, some countries have somehow combined the two criteria. For common law countries, however, domicile appears to have been generally accepted. In Nigeria, the adoption of can be justified on ground of practical necessity as Nigeria nationality covers a number of independent legal systems.5

1.2.0: OBJECTIVES OF STUDY The aim of this write up is to 1. Assess the definitions of domicile under the Private International Law. 2. Access the quality of the value of domicile. 3. To discuss the rules of domicile as contained in the received English law and to show how these rules have been, or ought to be modified in order suit Nigerian local conditions.

3 4 5

Logical and Legal basis of the conflict of laws .pp 104. Cheshire G.C ; Private International Law (7th ed) p. 180 The French Civil Code (code Napoleon) 1803

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4. To identify the distinctive features of each types of domicile, their workings, variations and also their shortenings. 5. To proffer recommendations on the doctrine of domicile.

1.3.0: FOCUS OF STUDY Under the Private International Law, the concept of domicile has several as well as areas of applications, some of which include the acquisition and loss of domicile of choice, origin and dependent. The focus of study or centre of interest therefore is on the concept of domicile as adopted to determine the individual personal law which is the law of the country to which the person primarily belongs especially for the purpose of family law and succession. So personal law determine matters such as essential validity of marriage, intestate succession, legitimacy, legitimation and adoption etc. All these and many more are what will be discussed in this essay.

1.4.0: SCOPE OF STUDY The range of this essay however, is strictly on the assessment of domicile under the Private International Law in both the Inter- state and International situations and that the adherence to the English law by the Nigerian judges which should be curbed since the rules itself is being subjected to reform in England.
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1.5.0. METHODOLOGY Both primary and secondary sources of law and the basis for this research work. Thus the Domicile Act, Law Textbooks, Law report, Articles on law, various statute and cases on the subject matter are sources of information. This project shall also be both comparative and analytical in nature.

1.6.0: LITERATURE REVIEW In this study relevant literature, judicial authorities and statutes shall be examined. Thus, credence shall be given to several authors in the field of the Conflict of laws whose works have in no small measure contributed immensely to Private International Law on the whole. Works of different authors both foreign and Nigerian such as Morris and Dicey, Cheshire an Norths, Graveson, Agbede I.O, to mention a few will serve as an aid to arrive at a logical conclusion on this study. Morris in his book The Conflict of laws6 provides a comprehensive and authoritative coverage of the subject but failed to Graveson ,Conflict of laws7 who only commented on the definition of domicile to no longer fits the complexity, movement and sophistication of modern life in which many of our best intentions become temporary through frustrating circumstances. But he failed to point out the ways to go about

6 7

Morris: the Conflict of laws, 4th ed by J D McClean, London, sweet and Maxwell, 1993, p 12 Graveson, conflict of laws (1969) p.20

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giving a definition that will fit our modern life. On the other hand, Agbede .I .O, Themes on Conflict of Laws8 talk on the need to establish residence and intention to remain in a place permanently (or indefinitely),he also went further to provide a comprehensive coverage of the spectrum of the law of domicile as it applies in Nigeria but he did little in expanciating on this requisites of acquiring a domicile of choice. Accordingly, Cheshire and Norths in their book Private International Law9 gave a good insight to domicile being a difficult term to define but rather better in description, but their way of describing was faulty in that there was no clear distinction between a permanent home and habitual home. Many books and Statutes shall be used mostly in the course of this study. This is because textbooks are what has been compiled by various authors while using the Statutes to back up their argument. Thus, it is only logical for this approach to be adopted since the word domicile itself still happen in how day to day living, as people migrate from one country to another, so there was need for domicile. In this vein, Omoruyi. I. O in his Article10 Domicile as a determinant of personal law; a case for the abandonment of the revival doctrine in Nigeria, examined that the common law
8 9

Agbede I.O., Themes on Conflict of Laws.( 2001) Shaneson C. I Ltd Cheshire and Norths , Private International Law, (1974) (7th ed) http://www.nigerianlawguru.com.articles>accessed 2000

10

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conception of domicile vis--vis the revival doctrine cannot adequately fit into the realities of the contemporary society and therefore the law must be reformed to reflect this fact. Though, all these authors have tried to assess the doctrine of domicile but it is however clear that there is need for the modifications of some of these rules of the received English law before it can be incorporated into the Nigerian laws.

1.7.0: CONCLUSION In conclusion, this chapter is an insight into the study of the doctrine of domicile, the quality of it, the aims and objectives, the various methods to be used and also the various authors who dealt succinctly with the assessment of domicile. This chapter is just the introductory part of the study of the doctrine of domicile under Private International Law.

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CHAPTER 2 DOCTRINE OF DOMICILE

2.0.0: INTRODUCTION Differences which exist between two or more legal systems, provide the theoretical foundation for the subject known as conflict of laws. Every legal systems has rules which tends to distinguish it from others. With particular regards to matters considered as bothering on an individuals civil status different legal system have established rules as to the law, which ought to govern in those cases. These matters usually involve those aspects of the individuals interests for which resort can be had to a single system of law, in making a decision as to a appropriate law that ought to govern. In order to identify the specific system of law that should govern these issues with regards to a particular or individual the laws of different countries have established diverse criteria. While in England domicile is the rule, in Italy and some other European countries it is nationality. Some other systems tends to combine both criteria11. As part of our received English law, domicile is the criterion recognized in the Nigerian law.

11

Agbede. I. O: Themes on conflicts of laws, Ibadan. Shaneson , 1989. P 49

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In this chapter, the various definitions of domicile shall be examined, the English conception of domicile, domicile and nationality, how domicile can ascertained and the forms and types of domicile.

2.1.0. DEFINITION OF DOMICILE

It is not an easy task to define the concept of domicile because, the concept is not uniform throughout the world therefore it is subject to diverse meanings. According to Sir GEORGE JESSEL;
The term domicile is incapable of definition
12

MORRIS also has asserted that

Domicile is easier to illustrate than it is to define
13

This is probably due to the fact that traditional definition has become rather obsolete as a result of judicial modification, which has attended the concept overtime. The Oxford Advance and Learners Dictionary define domicile as
The place where somebody lives, especially when it is stated for official or legal purpose
14

12 13 14

Doucat v Geoghegeon (1878) L. R. 9 Ch. D at 256 Morris, Conflict of laws, 4th ed by J. C McLean, Sweet and Maxwell, 1993, p.126th edition 6th edition by Sally Wehmeier (2000)

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The Black Law Dictionary defines the concept of the domicile as

A persons legal home. That place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning
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LORD CRANWORTH attempted a definition sometimes ago in Whicker v Hume16 to the effect that;
By domicile we mean home, the permanent home, and if you do not understand your permanent home I am afraid that no illustration drawn from foreign writers or foreign language will very much help you to it

This definition by Lord Cranworth is obviously simplistic from the subsequent judicial developments on these issues. In fact there is an opinion that the definition by LORD CRANWORTH is far too simplicitic and indeed somewhat misleading17 LORD CRANWORTHs definition errs on the side of simplicity because there are circumstances in which a person may not be residence in his place of domicile. The fact that one has lived in a particular place for several years is irrelevant where there is intention to remain there18. MORRIS also objects to this definition on the ground that a persons domicile may not always be the permanent home. In fact according to him;
15 16 17 18

Bryan A. Garner: 8th edition Thompson West 2004 (1958) H L C 124 at 160 Collier J. G : Conflict of laws, 2nd edition, Cambridge, C. U. P 1994. P 40. White v Tenant (1880) W L R 790 and IRC v Bullock (1976) W L R 1178

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A person may be domiciled in a country which is not and never has been his home; a person may have two homes but he can only have one domicile.
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He concluded that there is often a wide difference between the English concept of domicile and population of a home. Judicial authorities have equally shown that to acquire domicile according to the received English law, it is necessary to establish residence in a place and an intention to reside there permanently. The English courts have with complete justification established the principle of definition of domicile for the purpose of English rule conflict of laws according to thee concept in English law Nevertheless it is clear from decided cases that to acquire domicile in territory, according to the received English law, it is necessary to establish residence and an intention to remain there permanently (or indefinitely). A domicile can only be acquired by the concurrence of these two factors. However, an intention of indefinite residence is not equivalent to permanent residence if it is contingent upon uncertain event.20 Thus in Moorhouse v Lord21 it was held that:
The present intention of making a place a persons permanent home exists only where he has no other idea than to continue there without looking forward to any event, certain or uncertain which might induce him to change his residence. If he

19 20 21

Ibid at 13 Ibid (1863) 10 H L Cas 272 at 285-286

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has in his contemplation some event upon the happening of which his residence will cease it is not rather a present intention of making it a temporary home, though for a period indefinite and contingent.

This rule of domicile might have worked well during its formative (mid-Victorian England) era of comparative certainty, simplicity and legalism but in the contemporary world of tension and increased mobility, few things for human affairs can be certain least of all is ones intention. As stated by CHESHIRE22,
Singular indeed would be the man who could unreservedly warrant that whatever good or evil might befall him he would never return whence he came

In GRAVESONs

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view, this definition no longer fits the complexity movement and

sophistication of modern life in which many of our best intentions become temporary though frustrating circumstances. Rather curiously, this unsatisfactory definition of the English concept of domicile has been in Fonseca V Passman that:
To establish a domicile in Nigeria the mere factum of residence here is not sufficient. There must be unequivocal evidence of animus manendi or intention to remain permanently
24

, THOMAS.J. held

22 23 24

Cheshire: Private International Law (7th ed) at 145 Graveson: Conflict of laws (1969) p. 207 (1958) WRNLR 41 at 42

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More curiously, however is the failure of the Nigerian judged to distinguish between inter-state and international situation. For instance, in Udom v Udom who was concerned with an inter-state conflict problem said:
The subject must not only change his residence to that of a new domicile, but also must have settled or resided in the new territory cum animo manendi The residence in the new territory must be with the intention of remaining there permanently to reside, the factum is the actual residence.
25

, COKER.J.

This dictum appears to ignore the warning of BEALE26that the circumstances of life in a country must have weight with the judge in determining the meaning of domicile.
In USA there is a habit of moving from place to place; in England the habit is to remain indefinitely in one place. The rule of English law will have many Americans without a domicile of choice.
27

American judges are equally conscious of the inconvenience that will result from adopting the English rigid definition of domicile. Thus, PARKER .J. held in Putman v Johnson
28

In this new and enterprising country it is doubtful whether one half of

the young men, at the time of their emancipation, fix themselves in any town with an intention of always staying there. They settle in a place by way of experiment to see whether it would suit their view of business and advancement in life, and with an
25 26 27 28

(1962)LLR.112 at 117 Beale, J.HA. :Treatise on the conflict of law (1935),P.106 Ibid 10 Mass 488,501(1813)

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intention of removing to some more advantageous position, if they should be disappointed. Nevertheless they have their home in their chosen abode while they remain. Where in accordance with COKER Js dictum shall we locate the domicile of the nomadic cattle Fulanis? it is common knowledge that an Ibo man, for example, who was born in a northern state, who has been living in the in North all his life and who has no fixed intention as when he would leave there, would nonetheless entertain a hope, however remote, of returning to the East dead or alive. It may be appropriate to recall, at this junction, the decision in a post reception English case, where it was held that a person who intended to reside in a country indefinitely might be domiciled there although he envisaged the possibility of returning one day to his domicile of origin. In GRAVESONs29 view, we must not deny local domicile to a man who has settled in a place without intending to remain there as long as circumstances allow him to do so. In view of the limited function of domicile in matters of inter-state conflict problems in Nigeria. It is suggested that habitual residence in any constituent state should be sufficient to found a domicile in such a state. This suggestion appears more practical and more consonant with the social conditions in Nigeria than the dictum in Udom v Udom30. In a union where inter-state
29

Graveson,op,cit,Five Sheffield Jubilee Lectures at 97

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movements are unrestricted, it will be difficult, if not impossible to find people who will wish to reside in a particular state for better for worse. Moreover, it is in best interest of Nigerian people to discourage ethnic cohesion and minimizing its attendant evils. Such a social policy ought to influence judicial decisions, but the decision in Udom v Udom31 domicile does not appear to take account of this policy. As for the necessary requirements for establishing a domicile in Nigeria at the international level, it would be better, one imagines, to impute an intention to be domiciled in Nigeria to persons who are habitually resident in Nigeria. This suggestion is designed to aid the courts in ascertaining a persons v. therefore, if there is evidence convincingly showing that a propositus has no such intention, he should he should be denied a local domicile. The object of determining a persons domicile is to connect him with some legal system for certain legal purposes. To establish this connection it is sufficient to fix his domicile in some country in the sense of the conflict of laws .e.g. England or Scotland, California or New York. It is not necessary to show in what part of such a country he is domiciled32, but it is usually insufficient to show that he is domiciled in some composite state like the United Kingdom, the United states, Australia or Canada
30 31 32

Ibid Ibid Re craignish(1892)3 Ch 180,192

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with, each of which comprised several countries in the conflict of laws sense. A person who emigrates, Scotland or to Canada with the intention of settling either in England or British Columbia, does not change his domicile until he has decided in which country he intends to settle and has actually settled there33.

2.2.0: ASCERTAINMENT OF DOMICILE The question as to whether a person has established factual residence in a particular country raises little or no problem in practice. However, the thorough manner in which the English courts attempt to discover the necessary intention has produced absurd results. These courts have found it necessary to consider such difficult as a persons taste, habits, conducts, action, ambitions, health, hopes, projects and so on. there is no act, no circumstances in a mans life however trivial it may be in itself, which ought to be left out of considerationBut these factors are, one imagines, hardly suitable for judicial enquiry. What is rather absurd in the whole exercise is that circumstances which are treated as decisive in one case may be disregarded in another or even relied upon in support of a different conclusion. No circumstances of group of circumstances appear to furnish a definite criterion of the existence of the necessary intention.

33

Att.Gen For Alberta v Cook (1926) AC 444

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The latitude of discretion which the courts reserve to themselves makes their decisions appear arbitrary and very often inconsistent. The result is that a persons domicile may remain uncertain throughout his life. Must our domicile asks Gravenson continue to be kept a legal secret from us until we either invoke divorce jurisdiction or die? A desirable approach for the Nigerian courts in this regards is to tackle this problems with the presumption that a person intends to reside indefinitely in a country where he is habitually resident. This presumption which should be rebuttable will, it is hoped, obviate the very complicated problems involved in discovering a persons exact intention when he is absent from jurisdiction or when (as is usually the case) he is already dead.

2.3.0: DOMICILE AND NATIONALITY. The change from domicile to nationality on the continent of Europe started in France with the promulgation of the code Napoleon in 1804. One of the principal objects of the codifiers was to substitute a uniform law throughout the whole of France for the different coutumes of the French provinces. In matters of personal status these coutumes applied to persons domiciled within the province, whenever they happened to be. It was natural that the new uniform law should apply to Frenchmen everywhere,

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Article 3 (1)34 of the civil code provided that the laws governing the status and capacity of persons govern Frenchmen even though they are residing in foreign countries.No provision was expressly made for the converse case of foreigners residing in France, but the French courts held that in matters of status and capacity they too were governed by their national law. The provisions of the French code were adopted in Belgium and Luxembourg and similar provisions were contained in the Austrian code of 1811 and the Dutch code of 1829. The change from domicile to nationality on the continent of Europe was accelerated by Mancinis famous lecture he advocated the principle of nationality on the ground that laws are made more for an ascertained people than for an ascertained territory. A sovereign (he said) in framing laws for his people should consider their habits and temperament, their physical and moral qualities and even the climate, the temperature and fertility of the soil. This was heady wine for a people preparing to throw off a foreign yoke and unify all the small state of Italy into a new nation. Under Mancinis influence article 6 of the Italian civil code (1865) provided that the status and capacity of persons and family relations are governed by the laws of the nation to which they belong. Mancinis ideas proved extremely influential outside Italy too, and in the second half of the nineteenth century the principle of nationality replaced that of domicile in code after code in continental Europe, until today only Norway and
34

Code Napoleon 1804

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Denmark retain the principle of domicile. The result is that the nations of their world have become divided in their definition of the personal law; and it is the fact more than any other which impedes international agreement on uniform rules of the conflict of laws. What then are the arguments in favour of nationality and domicile as the personal law? The advocates of nationality claim that it is more stable than domicile because nationality cannot be charged without the formal consent of the state of new nationality. However, as has been well said, the principle of nationality achieves stability, but by the sacrifice of a mans personal freedom to adopt the legal system of his own choice. The fundamental objection to the concept of nationality is that it may require the application to a man, against his own wishes and desires has perhaps risked his life. It is also claimed that nationality is easier to ascertain than domicile because it involves a formal act of naturalization and does not depend o the subjective intentions of the propositus. This is undoubtedly time, though there may be difficult cases of double nationality or of statelessness35. But it does not follows that the most easily ascertained laws is the most appropriate law. Many immigrants who have no intention of returning to their country of origin do not trouble to apply for naturalization. It would have been ludicrous to say that only the English courts, and not the courts of
35

Beckett(then second legal adviser to the foreign office) 1939

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California, had jurisdiction to grant a divorce to the film actor Charlie Chaplin- or, for that matter, that only the American courts had jurisdiction to grant a divorce to Mr. Winans. The decisive consideration for countries like the United Kingdom, the United State, Australia and Canada is that, save in a very few respects, there is no such things as United Kingdom, American, Australian, or Canadian law. Since the object of referring matters of status and capacity to the personal law is to connect a man with some one legal system for many legal purposes, nationality breaks down altogether if the state contains more than one country in the sense of the conflict of laws. This is something which continental lawyers seem unable to comprehend. They sometimes speak as though the United kingdom and the United States are as legally backward today as France was before 1804 or Italy before 1865, simply because there is a diversity of legal systems throughout the state.

2.4.0: RULES AND KIND OF DOMICILE There are five general rules or principles to be discussed 1. It is a settled principle that no person can be without a domicile36. The rule springs with some system of law by which a number of his legal relationships may regulated.

36

Bell v Kennedy(1868) LR 1 Sc & Div 307

33

it is a settled principle said Lord Westbury in leading case37, that no man shall be without a domicile and to secure this result 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 the mother if illegitimate,. This has been called the domicile of origin, and involuntary38 Also to a foundling, the place where is found will be his domicile. This prevail until a new domicile has been acquire39, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevertheless, his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. 2. A person cannot have two domiciles. Since the object of law in insisting that no person shall be without a domicile is to establish a definite legal system by which certain of his rights and obligations may be governed, and since the fact and events of his life frequently impinge upon several countries, it is necessary on practical grounds to hold that he cannot possess more than one domicile at the same time, at least for the same purpose.

37 38 39

Udny v Udny (1869) L.R. 1 Sc 441, 458 Westlake :S 248; Dicey and Morris P.126 IRc v Bullock(1976) 1 WLR 1178 at 1184

34

Domicile signifies connection with what has conveniently been called a law district.40 i.e. a territory subject to a single system of law. In the case of a federation, where the legislation authority is distributed between the state and federal legislatures, this law district is generally represented by the particular state in which the propositus has established his home41. A resident in the USA, for instance is not normally domiciled in the USA as such, but in one of its states. Nevertheless, the doctrine of unity of domicile one man, one domicile- may be modified by federal legislation. Thus the family law 1975, which has force throughout the commonwealth of Australia, provides inter alia that proceedings for a decree of dissolution of marriage is domiciled in Australia42. Thus, the effect within a limit field is to create an Australian, as distinct from a state, domicile and, indeed, one that, because of statutory amendments in this limited content, is different from domicile in a state for other purpose, e.g. succession43. 3. The fact that domicile signifies connection with a single system of territory law does not necessarily connote a system that prescribes identical rule for all classes of persons. It may well be that in a unit such as India different classes of the population according to their religion, race or caste, but none the less it is the territorial law of
40 41 42 43

Dicey and Morris, pg 118- 119 Odiase v Odiase (1965) NMLR 196 Family Law Act 1975, s 39(3) (b) Lloyd v Lloyd (1961) 2 FLR 349

35

India that governs each person domiciled there, not withstanding that Hindu law may apply to one case, Muslim to another. 4. An existing domicile is presumed to continue until it is proved that a new domicile has been acquire. Hence, the burden of proving a change of domicile lies on those who assert it. Conflicting views have been expressed as to the standard proof require to rebut the presumption. According to SCARMAN. J., the standard is that adopted in civil proceeding, proof on a balance probability not that adopted proof beyond reasonable doubt in the criminal proceedings.44 On the other hand, according to SIR. JOCELYN SIMON P., the standard of proof goes beyond a mere balance of probabilities45. This observation no doubt stems from such cases as Winans v A.G46 which appear to regard the intention in favouring of retaining the domicile of origin as an almost irrebuttable presumption SCARMAN.J., however, added that two things are clear-first, change, the domicile of origin persists; and secondly, that the acquisition of a domicile of choice is serious matter not to be lightly inferred from slight indications or casual words. The presumption of continuance of domicile varies in strength according to the kind of domicile which is alleged to. It is weakest when that domicile is one of dependency47
44 45 46 47

Re Fynn (No 1 ) (1968) 1 WLR 103 Henderson v Henderson ( 1969) p. 77 at 80 (1904) AC 287 Harrison v Harrison (1953) 1 WLR 865

36

and strongest when domicile is one of origin, for its character is more enduring, its hold stronger, and easily shaken off48. The law commissions proposals for the reform of the law of domicile would leave unchanged the rule the burden of proving the acquisition of a new domicile falls on the person alleging it. However, the normal civil standard of proof on a balance of probabilities would apply in all disputes about domicile and no higher on different quality of intention would be required when the alleged change of domicile was from one acquired at birth than when it was from any other domicile. 5. For the purpose of a rule of conflict of laws, domicile means domicile in the English sense. The question where a person in domiciled is determined soled in accordance with English law. Thus, persons domiciled in England often acquired a domicile of choice in France without complying with the formalities formerly required by French law for the acquisition of a French domicile49. Conversely, a person domiciled in e.g. France may acquire an English domicile of choice regardless of whether French law would regard him as domiciled in England50. There is one statutory exception to this rule. Section46(5) of the family law Act 1986 refers to domicile in a country in the sense of that countrys law

48 49 50

Ibid Collier v Rivas (1841)2 Curt 855 Ibid

37

It is too wide a formulation to say that an English court, domicile means domicile in the English sense. Under the renvoi doctrine, English courts sometimes refers to the whole law of a foreign country, including its rules of the conflict of laws, and accept a reference back to English law either because the foreign conflict rule referrers to the law of the nationality, and the propositus is a British citizen; or because the foreign conflict rule refers to the law of the domicile, and the foreign court regards the propositus as domiciled in England. In the latter case, it is not true that domicile in English court always means domicile in the English sense; but it is still true that it means domicile in the English sense for the purpose of an English rule of the conflict of laws There are different kind of domicile and they are;. 1. Domicile of origin 2. Domicile of choice 3. Domicile of dependent person e.g. domicile of children, married women, persons of unsound mind and so on. All these will be discussed extensively in the next chapter

2.5.0: CONCLUSION In conclusion of this chapter, domicile is regarded as a relative term which varies in meaning according to different situation (for example taxation divorce interstate succession) to which it is applicable. A judge must however inevitably focus his
38

attention on the concrete problem before him, otherwise he will neglect the social and economic requirements of the situation. Also it is hard to believe that judges in this country have not been influenced by an awareness of the consequences of the finding as to domicile in the particular case before them. There is evidence that the courts wish to achieve a number of policy objectives in particular, to validate wills and to tale jurisdiction to grant a divorce whenever possible. It is easy for courts to achieve the right result by manipulating the process of ascertaining the domicile, and is a likely explanation of many cases which are otherwise hard to reconcile on their fact.

39

CHAPTER 3 ACQUISITION OF DOMICILE

3.0.0: INTRODUCTION Every person in accordance with the English law is required to have or acquire a domicile and since domicile is the means of ascertaining a persons personal law under the English. In this regard, acquisition of domicile is a way by which domicile can be obtained by a person. The various types of domicile has a way they can be acquired e.g. domicile of origin is acquired at birth, this is rather automatic in that it is ascribe to every person at birth unless such person acquire another by his own choice when eligible51. Domicile of choice on the other hand is acquired when a person takes up residence in another country which is backed up by an intention to remain permanently. There are however special cases where domicile is being dictated by some external necessity, such as offices, the demands of creditors or relief from illness52. The loss of domicile of choice, domicile of origin and choice contrasted and how domicile and nationality can be changed. All these are what shall be discussed extensively as we proceed in this chapter.

51 52

Ibid at 458 Ibid at 458

40

3.1.0: DOMICILE OF ORIGIN As domicile is the only means of ascertaining a persons personal under the English law, it is inevitable that English law should require that everybody must have a domicile. In order to make this rule work, the law assigns to every person a domicile at birth which is known as domicile of origin. According to this rule , a legitimate child takes the domicile of his father. An illegitimate child takes the domicile of its mother. A foundling takes the domicile of the country where it is found.53 There are only few Nigerian cases on these,
54

but one may make the following

comments with regard to the operation of this rule in Nigeria. Unlike England, where the husband and the wife (together with their infant children) constitute the unit of the family, a Nigerian family (family in this regard is the immediate family) often includes collaterals of the third or fourth degree of relationship. The death of the father in this regard does not invariably transmit to the mother the responsibility and the care and maintenance of the child. The fathers brother or other male relation often steps into his shoes. It will not be fair if the responsibility of the child rest on the uncle especially when his personal law depends on that of the mother.55

53
54 55

Dicey and Morris , The conflict of laws ( 8th ed. 1967) , Rule 6 (3) Enwonwu v Spira (1965) 2 All NLR 233 Sec. 2 Fatal Accident Law Cap. 52 Laws Of Eastern Nigeria (1963) Edition

41

It is suggested therefore that an illegitimate child should be presumed to take the domicile of the head of its family. It should be stressed, however, that this rule is by no means absolute. It is merely a presumption so that in those cases where a child is virtually reared and maintained by the mother or her family this presumption may be rebutted. This suggestion has no other basis than the welfare of the child. It is therefore the childs welfare that must be given overriding consideration in this regard. It is however, the exaggerated importance attached to the domicile of origin under the English law and stands in need of radical modifications in Nigeria. According to this law, almost overwhelming evidence is required to shake off the domicile of origin. 56Its character is more enduring, its hold is stronger and less easily shaken off. 57 As put by Lord WESTBURY
The domicile of origin is the creature of law and is dependent of the will of the party, it would be inconsistent with the principle on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exist wherever there is no other domicile and does not require to be reacquire or reconstituted animo et facto a manner which is necessary for the acquisition of a domicile of choice.
58

56 57 58

Udom v Udom (1962) L. L .R 112 Winans v Att. Gen (1904) A.C.287 at 290,Per Lord MACNAGHTEN Cheshire: Private International Law (7th Ed) at 164

42

Cheshire has suggested that these rules evolve in the nineteenth century when England was a nation of enterprising pioneers, most of whom regarded their ultimate return home as a forgone conclusion.59 The revival doctrine (this is done when one abandons his domicile of choice, such revives back the domicile of origin) as well as the enduring character of domicile of origin appear to rest on the assumption that a man belongs to his country of origin much more that to the country of his choice. But this assumption has been dismissed as archaic and meaningless in an age of migratory population. Perhaps, a better explanation for the development of rules of domicile of origin in its rigid sense from the view of Rabel who wrote that;.
The doctrine of domicile of origin was maintained and developed to satisfy the natural desire of a home country from which innumerable colonizer have gone out into the world
60

While a person may easily sever his connection with the country of his nationality (where that is the connecting factor) he remains, for all times, a miserable prey to his domicile of origin.61 Undoubtedly, the revival doctrine of domicile of origin runs

59 60 61

Wolff: m, Private International Law (2nd Ed 1950)p.109 Rabel: E, The Conflict of Laws : A Comparative study ( 2nd Ed.1958) vol 1, p.165 Cheshire: Private International Law (7th Ed)at 165, the domicile of origin transcends even nationality instability and permanence.

43

counter to the fundamental principle of domicile as it may located a persons domicile in a country which cannot be regarded as his home by any stretch of the imagination. The rule of domicile of origin might have been good law in an era where families were born and when they lived and died in the same community and when the ties, both material and sentimental, which bind one to his birth place were strong.62 But under the present political arrangement in Nigeria where state boundaries bear little relation to ethnic loyalty, to adopt such rules will be socially undesirable if not legally embarrassing. Moreover the mobility of society generally has provoked, even in England, an almost unanimous critism of this rule and the recommendation for its change. Indeed the English rules of domicile of origin have found a place in American law.63

3.2.0: DOMICILE OF CHOICE Any person who is not dependent on another (i.e. one who is not a child or a mentally disordered person) can acquire a domicile of choice or may change his domicile by taking up residence in another country with the intention of remaining there permanently64.

62 63 64

Goodrich and Scoles: Conflict of Laws (1964) 39 Beale, Treatise on the conflict of Laws (1935) at pp. 184-185 Ibid at 17

44

The two requisite here is residence and intention and they are normally referred to as factum and animus respectively. It is not essential that the factum and animus should come in any particular order so long as it comes at a point in time. These two factors must coincide before the law will recognize a change of domicile. Residence however long in a country will not result in the acquisition of domicile of choice, if the necessary intention is lacking.65 Conversely intention however strong to change a domicile will not have the result if the necessary residence in the new country is lacking. A new domicile is not acquired until there is not only a fixed intention establishing a permanent residence in the new country, but until also this intention has been carried out by actual residence there.66 Hence, a domicile cannot be acquired in itinere,67 it is necessary not only to travel, but to arrive. It is very difficult to keep the two requirements of residence and intention watertight compartments, but in the nearest of clarity of exposition they must be considered separately. However, residence and intention are separate but interrelated concepts.

65 66 67

Jopp v Wood (1865) 4 D.J & S.616: Winans v Att. Gen.(1904)A.C.287 Bell v Kennedy (1868) L .R 1 Sc & div, 307,319 Per Lord Chelmsford Ibid at 454.

45

3.2.1.0: RESIDENCE (FACTUM) Residence in a country for the purposes of the law of domicile is physical presence in that country as an habitant of it.68 In one case a taxpayer who spent ten to twelve weeks each year in Quebec for the purpose of maintaining her links with that province with a view ultimately to returning to live was held not to be a resident of Quebec during her presence there since she was not there as an inhabitant. Normally, though, the requirement of residence is easy to establish. Residence is a fact, though a necessary one, from which intention may be inferred. Older cases adopted a presumption in favour of domicile which grew in strength with the length of residence and was so hard to rebut. However, more recent cases, including House of the Lords authorities have attached less weight to the length of residence, and have taken the view that, although a material consideration, it is rarely decisive. Whatever weight is given to the length of residence it is undeniable that time is not the sole criterion of domicile.69 Both long residence and short residence does not constitute negative domicile everything depends on the attendant circumstances, for they alone disclose the nature of the persons presence in a country. In short, the

68 69

IRC v Duchess of Portland (1982)Ch 314 at 318-319 Hodgson v De Beauchesne (1858) 12 Mco PCC 285 at 329, 330

46

residence must answer a qualitative as well as a quantitative test.70 Thus in Jopp v Wood71 it was held that a residence of twenty- five years in India did not suffice to give a certain John Smith an Indian domicile because of his alleged intention ultimately to return to Scotland, the land of his birth. Again in IRC v Bullock72 a Canadian who had a domicile of origin in Nova Scotia was held not to have become domicile in England, despite the fact that he had either serve in RAF or lived in England for over forty years. He retained his domicile in Nova Scotia because he intended to return there, should his wife predecease him. Conversely, brevity of residence is no obstacle to the acquisition of a domicile if the necessary intention exists. If a man clearly intends to live in another country permanently, as for example, where an emigrant, having wound up his affairs in the country of his origin, flies off with his wife and family to Australia, his mere arrival there will satisfy the element of residence.73 A striking example of this truth occurred in America: where a man abandoned his home in State X and took his family to a house in state Y, about half a mile from X, intending to live there permanently. Having deposited belongings there, he and his

70 71 72 73

Bowie (or Ramsay) v Liverpool Royal Infirmary (1930) AC 588 at 598 (1865) 4 De GJ & Sm 616 (1976) 3 All ER 353, (1976) 1 WLR 1178 Hodgson v De Beauchesne(1858) 12 Moo PCC 285 at 329, 330

47

family returned to X, in order to spend the night with a relative. He fell ill and died there. It was held that his domicile at death was in Y.74 It is possible for a person to be resident in several countries at the same time. In such a case only the dual or multiple residence of domicile of choice can be acquire in a country if this can be shown, to be chief residence. This was established in Plummer v IRC.75The tax payer had an English domicile of origin, she spent the majority of each year in England, where she was being educated. However, she spent more than three month of each year in Guernsey, which had become her family home. HOFFMAN.J. held that, despite the taxpayer retention of a residence in England, her domicile of origin, she could acquire a domicile of choice in Guernsey. If she could show that this was her chief residence. This she was unable to do because she had not yet settle in Guernsey. Accordingly she retained her English domicile. This case could, though, have been decided on the much simpler ground that she lacked the requisite of intention of acquisitions of a Guernsey domicile of choice.76It seems better to regard question of this sort, as to the quality of residence, as primarily relevant in considering whether the propositus has the animus menendi, the intention of permanent or indefinite residence. However, problem in relation to residence will

74 75 76

White v Tennant 31 W Va 790, 8 SE 596 (1888). (1988) 1 All ER 97, (1988) 1 WLR 292: Fentiman (1991) CL.J 445

48

disappear if the law commissions proposal, that residence be replace by simpler concept of presence, is adopted.77

3.2.1.1: THE REQUISITE INTENTION (ANIMUS) An intention to reside permanently or for an unlimited time in a particular country is required for the acquisition of domicile of choice. This may however not pose any difficulty as the word permanently is used in its ordinary meaning as signifying the opposite of temporary. The word ;permanent aaccording to the Shorter Oxford English Dictionary means lasting or designed to last indefinitely without change, and this indeed is the definition that most of the judges have recognized when require to consider the nature of intention necessary for a change of domicile. In Udny v Udny,78 for instance, Lord WESTBURY described the intention as being one to reside for an unlimited time. A more modern statement to the same effect is that of SCARMAN J,79 who referred to an intention to reside indefinitely. The essence, therefore of these and many other similar statements is that the intended residence must not be for a limited period, whether the limitation is expressed in term of time or made dependent on the occurrence of a contingency (i.e. a possible but

77 78 79

Law Com No 168 (1987) Scot, Law Com No 107 (1981), Para 5,7 (1869) L.R 1 Sc & Div 441 at 458 Re Fulds Estate (No 3) (1968) p 615 at 684

49

unpredictable future event), such as the accomplishment of a definite task, that will occur if at all during the life of the propositus. It is also clear that a conditional intention will not suffice. Thus in Crammer v Crammer,80 a woman with a French domicile of origin who came to England

intending to remain there and marry an Englishman, who was already married, did not acquire an English domicile of choice. Her intention to remain was conditional on both herself and her proposed husband obtaining divorces or their relationship continuing. It would, no doubt, have been different if she had intended to remain there without a condition, but this was not her intention. In cases where the termination of residence is dependent on the occurrence of a contingency(i. e, a possible but unpredicted future event) this will not prevent the acquisition of a domicile unless the contingency is itself unambiguous and realistic, in the world of SCARMAN J: If a man intends to return to the land of his birth upon a clearly foreseen and reasonable anticipated contingency, e.g. the end of his job the intention require by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool)such a state of mind is consistent with the intention require by law. Subsequently, a distinction has been drawn between the question of whether a

80

(1987) 1 FLR 116

50

contingency itself is clear and the question of whether a contingency which is clear will happen.81 If a contingency is not sufficiently clear to be identified then it cannot operate to prevent the acquisition of a domicile of choice. Thus in Re Furse82 evidence that the propositus, who had a Rhode Island domicile of origin would leave England, where he had lived for nearly forty years, if he was no longer able to live an active physical life on his farm was not fatal to a change of domicile, and it was held that the propositus had acquired an English domicile of choice. On the other hand, if the contingency can be identified, it has to be asked whether there is a substantial possibility of the contingency happening; if there is , this will prevent the acquisition of domicile of choice. Thus in IRC v Bullock,83 where a husband intended to return to Canada to live permanently if his wife predeceased him, it was held that the husband did not acquire the English domicile of choice, since there was a real possibility, in view of their ages, of this happening. Of course, if there is no substantial possibility of a contingency happening the evidence showing a desire to leave the residence will not prevent the acquisition of the domicile of choice.84

81 82 83 84

IRC v Bullock (1967) 1 WLR 1178 at 1186 (1980) 3 All ER 838 (1976) 1 WLR 1178 Pletinka v Pletinka (1965) 109 Sol Jo 72

51

The former attitude towards contingencies was criticized in Winans v A-G, Ramsay v Liverpool Royal Infirmary85. That a contingency must be something more than a vague possibility if it is to prevent the acquisition of a domicile in the country of residence has not been invariably accepted by the courts. It has several times been affirmed, and more than once by the House of the Lords, that the present residence of a man is not to be equated with domicile if he contemplates some remote or uncertain event, whose occurrence at some indeterminate time in the future might cause him to leave his country of residence. If this possibility is to present to his mind, even an intention to reside indefinitely in the country is said to be ineffective. 86 This view appears to equate the word permanent with perpetual, and to require for a change of domicile an irrevocable intention never to abandon the present place of domicile. Yet it is no part of the law that the intention to maintain the residence should be irrevocable,87 for such a requirement would actually exclude the acquisition of a domicile of choice.88Nevertheless, in Winans v A-G89 and Ramsay v Liverpool Royal Infirmary,90 the house of Lords came very near to regarding a vague

85 86 87 88 89 90

Ibid at 300 Moorhouse v Lord (1863) 10 HL Cas 27 at 285-186 Gulbenkian v Gulbenkian (1937) 4 All ER 618 at 612 A -G v Pottinger (1861) 30 L J Ex 284 at 292 Ibid at 300 Ibid at 598

52

possibility as if were to cite the word of SCARMAN J. again, a clearly foreseen and reasonable anticipated contingency. The facts of the former case were these: Winans was born in 1823 in the United State, where he was continuously engage in his fathers business until 1850. From 1850 to 1859 he resided in Russia. He married a British subject and appears never to have set foot again in the USA. In 1859 he showed signs of consumption and being advised by the doctors to winter in Brighton in England, he reluctantly took rooms at a hotel there, and in 1860 leased two adjourning houses. He still held these houses at the time of his death. From 1860 to 1893 he spent time each year in England but also in Scotland, Germany or Russia. From 1893 until he died in 1897 he lived entirely in England. Estate duty was paid on English fortune of over two million pounds, but the crown now claimed legacy duty on a comparatively small amount of property abroad. Such duty was payable only if he had acquired an English domiciles at the time of his death.91 The fact that he had resided principally in England for the last thirty-seven years of his life raised a very strong presumption in favour of an English domiciles, but there was no direct evidence as to what his intention was analysed by LORD MACNAGHTEN with some particularly the hope, projects and daily habits of Mr. Winans. He found that, in addition to the care of his health. Mr. Winans had two objects in life. The first was the construction in Baltimore of a large fleet of spindle-shape vessels, which
91

Ibid at 290

53

would give America superiority at sea over Britain. The second object was to develop a large property of about 200 acres in Baltimore. On this, wharves and docks were to be constructed for the spindle-shaped vessels, and a large house built in which Mr. Winans intended to live in order that he might take personal command of the whole undertaking. He succeeded in getting control of the property only at the very end of his, and at the time of his death he was working day and night on the scheme. LORD MACNAGHTEN reached the conclusion that the domicile of origin in New Jersey had not been lost. He said that up to the very last he had an expectation or hope of returning to America and seeing his grand scheme inaugurated.92 LORD HALSBURY found it impossible to infer from the evidence what Mr. Winans intention was, and he held therefore that the crown had not discharged its duty of proving a change in domiciles. LORD LINDLEY vigorously dissented. In his view Winans had given up all serious idea of returning to America.93 In Bowie (or Ramsay) v Liverpool Royal Infirmary,94 one George Bowie, who had left a will that was formally valid if his domiciles at death was Scottish but invalid if it was English. The story of his life was uneventful. He was born in Glasgow in 1845 with a Scottish domicile of origin. He gave up his employment as a commercial traveller at the age of thirty-seven and refused to do any more work during the
92 93 94

Ibid at 298 Ibid at 300 Ibid at 588

54

remaining forty-five years of his life, but even idle must be fed, and after residing with his mother and sister in Glasgow, he moved his residence to Liverpool in 1982 in order to live on the bounty of his brother. At first he lived in lodgings, but moved to his brothers house when the latter died twenty-one years later and resided there with his sole surviving sister until she died in 1920. He remained there until his own death in 1927. Thus George lived in England for the last thirty-six years of his life. During that time he left the country only twice, once on a short visit to the USA, on the second occasion to take a holiday in the Isle of man. Though he often said he was proud to be a Glasgow man, he resolutely refused in several occasion to return to Scotland, even for the purpose of attending his mothers funeral. On the contrary, he had expressed his determination never to set his foot in Glasgow again and had arranged for his own burial in Liverpool. Thus evidence was completely lacking of any inclination, either by words or actions, to disturb a long and practically interrupted residence in England nevertheless, the House of Lords held unanimously that George died domiciled in Scotland. Their Lordships denied that his prolong residence disclosed an intention to choose England as his permanent home rather they inferred that had his English source of supply failed, he would have retreated Glasgow. It would, however be a mistake to exaggerate the importance of judicial pronouncements or decisions which on the surface appear to distort the character of the intention that is necessary for the acquisition of domicile. SCARMAN J. has
55

stressed that the difficulty in reconciling the numerous statements arises not from clarity of judicial thought, but from the nature of the subject. The cases involved a detailed examination of the facts and it is not surprising that different factual situations have chosen different language to describe the law.95 SCARMAN J. would regard the difference between the statements of judges in earlier cases as showing a difference of emphasis and therefore as being of no great moment. It may well be, then, that to construct a formula which describes the precise intention required by English law for the acquisition of a domicile of choice is an impossibility, but perhaps the most satisfactory definition was that offered a hundred years ago by KINDERSLEY V-C:That place is properly the domicile of a person in which he has voluntary fixed the habitation of himself and his family, not for mere temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected of the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.96 There is a time at which intention is relevant. The traditional statement that there must be at present intention of permanent residence merely means that so far as the mind of the person at the relevant time was concerned he possessed the requisite intention. The relevant time varies with the nature of inquiry. It may be past or present. If, for

95 96

Re Fulds Estate (No 3 ) (1968 ) P 675 at 682 - 683 Lord v Calvin (1859) 4 Drew 366 at 376

56

example, the inquiry relate to a domicile of inquiry of a deceased person. It must be ascertained whether at some period in his life he had formed and retained a fixed and settled intention of residence in a given country. Once this is established, evidence of his subsequent fluctuations of opinion whether he would or would not will be ignored.97 There is evidence of intention i.e. intention needs to be proved. Most disputes as to domicile turn on the question whether the necessary intention is accompanied with residence, and this question often involves very complex and intricate issues of fact. This is because there is no act, no circumstance in a mans life, however trivial it may be in itself, which ought to be left out of consideration in trying the question whether there was an intention to change the domicile. A trivial act might possibly be weightier with regard to determining this question than an act which was of more importance to a man in his lifetime.98 It is impossible to lay down any positive rule with respect to the evidence necessary to prove intention. All that can be said is that every conceivable event and incident in a mans life is a relevant and an admissible indication of his state of mind. It may be necessary to examine the history of his life with the most scrupulous care, and to resort even to hearsay evidence where the question concerns the domicile of a person,

97 98

Re Marrett, Chalmers v Wingfield (1887) 36 Ch D 400 Drevon v Drevon (1864) 34 L.J. Ch.129, 133,Per Kindersley V- C.

57

now deceased, possessed in his lifetime.99Nothing must be overlooked that might possibly show the place which he regarded as his permanent home at the relevant time. No fact is too trivial to merit consideration. Indeed, one of the defects of English law is that the evidence adduced in a disputed case of domicile is often both voluminous and difficult to assess. This is due to the over- scrupulous manner the courts attempt to discover a mans exact intention. The tendency is to investigate his actual state of mind, rather than to rest content with the natural inference of his long continued residence in a given country. This, indeed, is to set sail on an uncharted sea. Nothing must be neglected that can possibly indicate the bent of his residents mind. His aspirations whims, amours, prejudice, religion, financial expectations all are taken into account.100 Having regard, therefore, roving commission imposed on the courts, it is not surprising that their decisions exhibit a multiplicity of different factors that have been regarded as indicia of intention. Without attempting to give an exhaustive list, it may be useful to observe that at one time or another the following have been regarded as relevant criteria of intent: naturalization, retention of citizenship, purchases of a house, or of a burial ground, the exercise of political rights, the establishment of children in business, the statutory declaration made by a candidate for naturalization that he

99

Scappaticci v A-G (1955) P 47,(1955) 1 All ER 193n Casdagli v Casdgli (1919) AC 145 at 178

100

58

intends to reside permanently in the United Kingdom, the where a mans wife and his family reside, departure from a country owing to compulsion of war, the refusal of a foreign fianc to leave her own country, statements as his domiciliary intentions made by a deceased person in his lifetime, the effect of the radical intolerance on domiciliary intention, and the fact that a family is split between England and abroad.101 Undue stress must not be laid on any single fact, however impressive it may appear when viewed out of its context, for its importance as a determining factor may well be minimized when considered in the light of other qualifying events. Again, no one fact is of constant value, for every case varies in its circumstances and what is of decisive importance in one may be of little weight in another.102 It is for this reason that it is impossible to formulate a rule specifying the weight to be given to particular evidence. All that can be gathered from the authorities in this respect is that more reliance is placed on conduct than on declarations of intention, especially if they are oral. Nevertheless, the common law rule, that expression of intention by a living person cannot be received in evidence unless against his own interest, is not applicable in an issue of domicile, and it is common enough for witness to testify to parol declarations made during his life by the person whose domicile is in

101 102

Begum v Entry Clearance Officer, Dacca (1983) Imm AR 163 Hodgson v De Beauchesne (supra)

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question. This kind of evidence, however, especially when given long after the conversation occurred, is suspect, for witness may lie or forget. Declarations should contain a real expression of intention for it only too frequently happens that they cannot be taken at their fact value. They may be interested in statements designed to flatter or to deceive the hearer, they may represent nothing more than vain expectations unlikely to be fulfilled, and the very facility with which they can be made require their sincerity to be manifested by some active step taken in furtherance of the expressed intention. The circumstance in which the statement is made needs to be considered and any declaration must be backed up by conduct consistent with the declared intention. Even lower in the scale of values is evidence given in the course of the trial by the person himself not of his past declarations, but of his past intention. This must be accepted with very considerable reserve, for on such personal issue as his own place of domicile he is under a bias that is likely to influence his mind, perhaps even his veracity.103 In at least two respects, motive in the sense of the antecedent desire that determines the will to act is one of the indicia of the intention requisite for the acquisition of a domicile of choice. First it may throw light on the question whether the removal to

103

Ibid , but in Brown v Brown(1982) 3 FLR 212 at214 -215 where the declaration was consistence

with conduct.

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another country was intended to be permanent. It will serve, for instance, to contrast the case of a man who flees to England to escape political persecution in his own country with that of retired officer who goes to Jersey to avoid heavy taxation. Secondly, it may provide a means of testing the sincerity of a declaration of intention. Thus if a widower testifies that at the time of his wifes death he and his wife regarded Scotland as their permanent home, the fact that Scotlands law he is entitled to onehalf of his wifes property may make his testimony a little suspect.104 It is important to realize that the only intention relevant to a change of domicile is an intention to settle permanently in a country. This will effect a change of domicile even if the propositus intended to retain his former personal law. 105 One of the legal consequences of an intention to settle in country X is that the person in question becomes subject to the law of X whether this is his wish or not. It is inevitable effect to his residence in that country couples with his intention to remain there without any limit of time106. Thus in Re Steer107 An English man, having taken up his residence in Hamburg with the intention of settling there for good, remained there until his death some fifty years later. On the occasion, when he came to England for a temporary purpose, he made a Will in which he declared that though he intended to return to
104 105 106 107

Cf Re Craignish (1892) 3 Ch 180. Douglas v Douglas (1871) LR 12 Eq 617 at 644, 645. Re Craignish (1892) 3 Ch 180 at 188, 189. (1858) 3 H & N 594.

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Hamburg it was not his intention to renounce his English domicile of origin. It was held that this declaration which suggested a desire to have two simultaneous domiciles, could not nullify the consequences of having in fact acquire a German domicile.

3.2.1.2: SPECIAL CASES IN ACQUISITION OF DOMICILE OF CHOICE In order that a person may acquire a domicile of choice, it has been said that there must be a residence free chosen, and prescribed or dictated by any external necessity, such as the duties of offices the demands of creditors or the relief from illnesses108. This is a somewhat misleading statement. It certainly does not mean that only a person able to exercise the most perfect freedom of choice can acquire a domicile of choice, for it did, the acquisition of a domicile of choice would be a rare event. What it does means can only be elucidated by examining a number of a special cases. These are; person liable to deportation; fugitives from justice; refuges; invalids; member of the armed forces; employees; and diplomats. Persons liable to deportation: A person who resides in a country from which he is liable to be deported may lack the necessary intention because his residence is precarious. But if in fact the forms the necessary intention, he acquires a domicile of

108

Ibid at 458

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choice.109Once such a person has acquired a domicile of choice he does not lose it merely because a deportation order has been made against him. He only loses it when he is actually deported and can no longer be said to have an intention to return as a lawful resident. Fugitives from justice: A person, who leaves a country as a fugitive from criminal justice, or in order to evade his creditors, has a special motive for leaving it, but no special motive for living in any other country. In the case of a fugitive from justice, the intention to abandon his previous domicile will readily be inferred, unless perhaps the punishment which he seeks to avoid is trivial, or by the law of that country a relatively short period of prescription bars liability to punishment. In Re Martin,110 a French professor committed a crime in France in connection with professorship and fled to England, where he remained for the next twenty years. Two years after the French period of prescription had expired he returned to France. The court of Appeal by a majority held that he had an English domicile six years after his arrival in England.

109 110

Boldrini v Boldrini (1932) P. 9 (1900) P. 211

63

Similarly, a person who leaves a country in order to evade his creditors may lose a domicile there; but if he plans to return as soon as he has paid or otherwise got rid of his debts, there is no change of domicile.111 Refugees: If a political refugee intends to return to the country from which he has fled as soon as the political situation changes, he retains his domicile there; but if his intention was not to live that country even when the political situation has changed, he can acquire a domicile of choice in the country to which he has fled. Thus in Re Lloyd Evans112 an Englishman with a Belgian domicile of choice returned to England very reluctantly in June 1940 because of the German invasion, and lived in furnished flat in England until he died in 1944. He always intended to return to Belgium after the war. It was held that he retained his Belgian domicile. On the other hand, in May v May113 a Jew fled from Germany to England in 1938 to escape persecution by the Nazis. He originally intended to emigrate to the United States, but his hope of doing so was frustrated by the outbreak of war in 1930. In 1914 the idea of going to the United States gradually faded from his mind. He declared that he would never return to Germany even if the Nazis were overthrown. It was held that he had acquired an English domicile of choice by the beginning of 1942.

111 112 113

Re Wrights Trusts (1856) 2 K & J. (1947) Ch. 695 (1943) 2 All E.R. 146.

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Invalids: If a person changes his residence for the sake of health, does he change his domicile? Different judges have given different answers to this questions. Since illness vary greatly in intensity, no general rule can be laid down. Each cases turn on its own facts. A person who goes to a country for a temporary purpose of undergoing medical treatment there clearly lacks the necessary intention for a change of domicile. So does a person who is mortally ill and decides to move to a country to alleviate his last sufferings. On the other hand, a person who moves to a new country because he believes that he will enjoy better health there may well intend to live there permanently or indefinitely, but of course he does not necessarily have this intention. In Hoskins v Matthews,114a man whose domicile of origin was English went to Florence at the age of sixty, and lived there except for three of four months in each year in a villa that he had bought until he died twelve year later. He was suffering from an inquiry to the spine and left England solely because he thought that the warmer climate of Italy would benefit his health. His housekeeper deposed that he would have retuned to England if he had been restored to health. Nevertheless, it was held that he had acquired a domicile in Tuscany, because he was exercising a preference and not acting upon necessity. On the other hand, in Re James115 a man with an English domicile of origin went to South Africa in 1891 when he was thirty-

114 115

(1855) 8 D. M. & G. 13 (1908) 98 L.T. 438.

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eight, obtained employment there, and lived there in apartments until he died in 1905. He went to South Africa because his doctor advised him that he was not likely to live long if he remained in Wales. Just before he left Wales he said he would never return except for a short time. He did return for six weeks in 1902, but on leaving again he said he would never return as the climate did not suit him; and that he enjoyed better health in South Africa than he ever had in Wales on the other hand, he continued to own a small farm in Wales until his death. It was held that he died domiciled in England. Members of the armed forces: It was at one time supposed that a member of the armed forces, whether British or foreign, could not as a matter of law acquire a domicile of choice during his service, because he was bound to obey orders and go where he was sent by his superiors. But now it is clear that a member of the armed forced can, during service, acquire a domicile of choice in the country in which he is stationed or elsewhere, provided he has established the necessary residence and formed the necessary intention. But in the great majority of cases he does not intend to makes his permanent home where he is stationed, and retains the domicile which he had on entering service116. Employees: A person who goes to a country in pursuance of a contact of service is in position similar to that of a member of the armed forces in that his residence or for a
116

Donaldson v Donaldson (1949) P. 363

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limited time. On the other hand an employee can more easily gives up his employment than a member of the armed forces can. The question whether an employee who is sent to a country intends to reside there permanently or indefinitely remains in the last resort a question of fact. There is, for the purpose, no distinction between public servants and other employees. If such persons go to a country for the temporary purposes of performing the duties of their office or employment, they do not acquire a domicile of choice there, but if they go not merely to work but also to settle, they do acquire domicile of choice. This in Att. Gen v Rowe117 an English barrister was appointed chief Justice of Ceylon. His intention was to hold this office until he had earned his pension and then return to England. It was held that he retained his English domicile. On the other hand, in Gunn v Gunn118 a man with a domicile of origin in Manitoba was employed by a corporation owning a chain in cinema in Saskatchewan. He moved to Saskatchewan with the intention of residing there for an indefinite period. It was held that he acquire domicile of choice in Saskatchewan. Diplomats: Diplomats are simply a special category of public servants and the same principles apply to them. It is a question of fact whether they intend to reside permanently or indefinitely in the country to which they are accredited. Generally, of course, they form no such intention, but occasionally they may do so and thus acquire

117 118

(1862) 1 H & C 31 (1956) 2 D .L. D

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a domicile of choice in a country, he does not lose it merely by reason of being appointed to a diplomatic post in that country.119

3.2.1.3: LOSS OF DOMICILE OF CHOICE A domicile of choice is said to be lost when both the residence and intention, which must exist for its acquisition are given up. This is not lost by given up residence and intention only, neither is it necessary to prove a positive intention not to return. It is sufficient to prove merely the absence of intention to continue to reside.120

3.3.0: DOMICILE OF ORIGIN AND CHOICE CONTRASTED As compared with the views held in civil law countries, in the USA, in New Zealand and Australia121, the domicile of origin is regarded by the present English law as fundamentally different from a domicile of choice. It differs in its character, in the conditions necessary for its abandonment and in its capacity for revival. These is categorized into two TENACITY OF THE DOMICILE OF ORIGIN There is the strongest possible presumption in favour of the continuance of a domicile of origin. As contrasted with a domicile of choice, it has been said by LORD
119 120 121

An instance is afforded by Naville v Naville(1957) (1) S.A. 280 Re Flynn (No 1) (1968) 1 W. L. R. 103, 113-115 New Zealand Domicile Act 1976 and the Australian Domicile Acts 1982; Nygh, pp 177- 178

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MACNAGHTEN that its character is more enduring, its hold stronger and less easily shaken off122. In fact decision such as Winans v A-G123 and Ramsay v Liverpool Royal Infirmary
124

warrant the conclusion that almost overwhelming evidence is

require to shake it off. In the latter of these cases evidence was completely lacking of the slightest indication, either by words or actions, that George Bowie intended to live anywhere else than in England. Yet it was held that the tenacity of his Scottish domicile of origin had not yielded. Also in Cramer v Cramer Stephen BROWN and BALCOMBE LJJ held that the burden of proving a change of domicile from one of origin to one of choice was a heavy one.125 ABANDONMENT OF AN EXISTING DOMICILE. Since a domicile of choice is voluntarily acquire if there is the requisite intention and residence, so it is extinguishable in the same manner, i.e. merely by a removal from the country with an intention not to return and even without acquiring a fresh domicile126. In case of dual or multiple residence what is necessary is that the country ceases to be the chief residence with presumably an intention not to reside there as the chief residence. The only distinction between acquisition and abandonment is that the

122 123 124 125 126

Ibid at 290 Ibid at 290 Ibid at 558 (1987) 1 FLR 116 and (1982) 3 FLR 212 Tee v Tee (1947) 1 WLR 213 at 215

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latter requires less evidence than the former. There cannot be abandonment by intention alone. But it has been objected by MEGGARY J, obiter, that to require proof of an intention not to return is too rigorous a test, since it denies effect to a departure from a country without an intention of returning. In his view, it is unnecessary to prove a positive intention not to return, since the merely negative absence of any intention127, to resume the residence will suffice of effect an abandonment of the domicile. It is submitted that this suggested distinction between an intention not to return and the absence of an intention to return is fallacious. The difference between the two variants of intention is not obvious, but presumably the absence of an intention not to return can only mean that at the time of departure the person in question has not decided whether to return or not . if this is the state of his mind, the result in law is that his mind domicile is unchanged. In other words, it would seem clear on the authorities that there must always be a positive intention not to return before it can be said that a domicile of choice has been lost. But the identification of a persons domicile is always inferred from his conduct together with his declarations, if any, and at the time when the question falls to be determined the inference from the evidence may well be that what began as indecision has been gradually transformed into a definite resolve not to return.
127

Ibid at 113

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But the domicile of origin on the other hand, which in its inceptionn is not a matter of free will but is communicated to a person by operation of law; is not extinguished by mere removal with an intention not to return. It cannot be lost by mere abandonment. It endures until supplanted by a fresh domicile of choice. Bell v Kennedy128 is the leading authority for this rule, The domicile of origin of Bell was in Jamaica, where he had been born of Scottish parents domiciled in that Island. He was educated in Scotland but returned to Jamaica after reaching his majority. Some fourteen years later, in 1837, he left the Island without any intention of returning, resided with his mother-in-law in Scotland, and occupied himself in looking for an estate in that country on which to settle down. He had not been successful in this when his wife died in 1838, but after her death he bought an estate and it was admitted that at the time of the trial he had acquired a Scottish domicile. The question for decision, however, was what his domicile was at the time of his wifes death? It was held that his domicile at the moment was in Jamaica. Although he abandoned the Island for good in 1837 and was resident in Scotland, he had not at that time decided to make his permanent residence there. The evidence showed that in 1838 his mind was vacillating with regard to his future home. Therefore, since he had not acquired a Scottish domicile of choice, he retained his domicile of origin.
128

(1868) LR 1 Sc & Div 307

71

A modern instance of removal from the domicile of origin with an intention to return is Brown v Brown129. In this case there was evidence of willingness by the court to infer the intention necessary for the acquisition of a domicile of choice, on the bases that the person in question, who work for a multinational oil company had severe his links with his domicile of origin in United State and the nature of his work make him had opportunity for the acquisition of a new domicile abroad. There is also what is called the revival of domicile(i.e revival doctrine as mentioned above) in that the domicile of origin, in the rule of English law in that it is merely place in abeyance for the time been. It remains in the background ever ready to revive and to fasting upon the propositus immediately he abandon his domicile of choice130. The position, may be illustrated by an example based on the hypothesis that George Bowie, whose case was decided in Ramsey v Liverpool Royal infirmary131, had married after his arrival in England and that a son, X had been to him in these circumstances Xs domicile of origin Scottish since at his birth his father was domicile in Scotland. An illustration is now given where at the age of 22 X, who has developed a strong dislike for the United Kingdom, leaves the country determined never to set foot here again. He acquires domicile of choice in Peru. After residing there for forty years, in the course of which he has amassed a fortune, he leaves the country for good
129 130 131

(1982) 3 FLR 212,Cf Vien Estate v Vien Estate (1988) 49 DLR (4th) 558. Ibid at 458 Ibid at 558

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and takes up his temporary residence in New York, being undecided whether to settle permanently in Virginia or California. The result is that immediately on his departure from Peru his Peruvian domicile ceases abruptly, but his Scotlands domicile of origin revives and remains attached to him until he has in fact acquired a domicile of choice in some other country. It is clear that during his period of indecision in New York there must be some personal law applicable to him. This might be either Peruvian or Scottish law. In the United States of America, where revival doctrine is not accepted132, it would be the law of Peru. According to Lord chancellor HATHERLEY, however, to admit this is to be absurdity of asserting a person to be domiciled in a country which he has resolutely forsaken and cast off, simply because he may perhaps for years be deliberating before he settles himself elsewhere. Yet certain doubts suggest themselves. Is it so absurd to prefer the law under which the man has recently been living, perhaps for a prolonged period? Are the claims of the law which is imposed on him at birth, independently of his volition, superior to that which he has voluntarily chosen and long retained? At any rate the advantages of preferring the domicile of origin in the case of our hypothetical X are not particularly conspicuous. The country that determines his personal law is one that he has never visited and for which he feels repugnance. Nevertheless, if he wishes to marry, his capacity will be determined by reference to the law of Scotland. If he dies intestate
132

Re Jones Estate (1921) 192 Iowa 78, 182 NW 227.

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leaving movables in England, they will be disturbed according to Scotlands law and United Kingdom inheritance tax will be payable. These illustrations, which could be multiplied, provoke the thought that the virtues of the doctrine of revival are not so obvious as appeared to the mid-Victorian judges. The doctrine of revival has in fact been rejected in New Zealand133 and in Australia Kingdom has been proposed by the law commission.
134

and its rejection in the United

3.4.0: CHANGE OF DOMICILE AND NATIONALITY It is importantt to emphasise that nationality and domicile are two different conceptions and that a man may change the latter without divesting himself of his nationality135. An Englishman may remain an Englishman in the sense that his allegiance renders him subject to certain duties to the crown, and yet he may so change his residence that many of his legal rights and obligations will be determinable by a foreign system of law, as being the law of his domicile. The mere fact that an alien living in England under a certificate of registration is liable to deportation for misbehavior or has even been recommended for deportation does not prevent him

133 134 135

Domicile Act 1976, s 11. Webb (1977) 26 ICLQ 194 Domicile Acts 1982, s 7 Bradfield v Swanton (1931) IR 446; also a discussion By Westlake in Private International Law(7th

edn) pp 348-354

74

from acquiring an English domicile of choice136, or deprive him of a domicile already acquired. Indeed, a domicile of choice may even continue after deportation if re-entry is lawful137. Neither the permissive nor the precarious character of his residence nullifies his intention to settle in England. Although it has been held in Canada, that an illegal immigrant may acquire a domicile of choice in the country which he has entered illegally, the predominant view which has been accepted in England138 is that no domicile of choice can be acquired in defiance of the laws of the country entered.

3.5.0: CONCLUSION It should be borne in mind that the acquisition of domicile as contained in the English law is being adopted in Nigeria though Nigeria has little issues on domicile. Moreover, in so far as matter governed by the lex domicili (law of domicile) is concerned, the state laws are broadly similar. It follows therefore that a change of domicile of origin or choice, from one state to another does not entail serious or far reaching consequences as to require very strong evidence as claimed by the court. It is

therefore suggested that an existing domicile (whether of origin or choice) should continue until another is acquired and that the same evidence required for the

136 137 138

May v May (1943) 169 LT 42 Thiele v Thiele (1920) 150 LT Jo 387 and Dicey & Morris, p 142 Puttick v A-G (1980) Fam 1

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abandonment of domicile of choice should be sufficient for the abandonment of domicile of origin.139

139

Agbede. I. O. Personal law and personal system of law : Synthesis or Symbolisms

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CHAPTER 4 DOMICILE OF DEPENDENT PERSONS

4.0.0: INTRODUCTION No dependent person can acquire a domicile of choice by his own act. As a general rule, the domicile of such persons is the same as, and changes with the domicile of the person (if any) on whom he is legally dependent. The class of dependent persons is children, women, and persons of unsound mind. This was stream lined by the law of England on Domicile and and Matrimonial Proceedings Act.140These classes of people can only acquire domicile based on the act of the person they are dependent upon. All these shall be dicussed as we proceed in this chapter.

4.1.0: DOMICILE OF CHILDREN The Common law rules as to the domicile of dependency emphasized the link between a child and its father, the child was treated as dependent upon the father even if the parents had separated and the child was living with the mother. Section 4 of the Domicile and Matrimonial Proceeding Act141 sought to introduce greater flexibility into the rules as to dependency, enabling the child to be dependent upon the mother in appropriate circumstances. It provides that the domicile of a dependent child whose
140 141

1974 ibid

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parents are alive but living apart shall be that of his mother if he has his home with her and no home with his father, or he has at any time had her domicile by virtue of above and has not since had a home with his father. Living apart does not imply any breakdown in the relationship between the parents, who may be living apart because of the demands of one parents work. Home is also undefined; the home of a preschool child may be more easily identified than that of a young teenager educated at boarding school. Section 4(3)142 provides that the domicile of a dependent child whose mother is dead shall be that which she last had before she died if at her death he had her domicile by virtue of Section 4(2)143 above and he has not since had a home with his father. The main object of this enactment is to increase the number of cases in which the domicile of dependency of a child will be that of his mother; previously existing rules of law to that effect (e.g. those relating to illegitimate children and legitimate children whose fathers are dead) are expressly preserved by section 4 (4).144 An adopted child is now treated in law as if he had been born to the adopter or adopters in wedlock. Accordingly the domicile of an adopted child under sixteen will be determined as if he were the legitimate child of his adopted parent or parents. The domicile of a legitimate child whose parents are both dead, or of an illegitimate child whose mother is dead, probably cannot be changed at all.
142 143 144

Domicile and Matrimonial Proceeding Act (England)1973 ibid ibid

78

When the domicile of a dependent child is change as a result of a change in his parents domicile or as a result of his legitimation, the new domicile which the child gets in this way is the domicile of dependency and not a domicile of origin. Hence, it is not domicile but the one he acquired at birth which will revive if in later life he abandons one domicile of choice without acquiring another at the same time.. On the other hand, it would seem to follow from what has been said above about adopted children that the domicile of origin of an adopted child is deemed to be the domicile of his adopted parent or parents at the time of his adoption. If this is so, it is the only example in English law in which a domicile of origin can be changed.

4.2.0: DOMICILE OF MARRIED WOMEN Until 1974, the rule was that the domicile of a husband was communicated to his wife immediately on marriage and it was necessarily and inevitably retained by her for the duration of the marriage. This rule was much criticized as the last barbarous relic of a wifes servitude145 and was abolished by section 1 of the Domicile and Matrimonial Proceedings Act.146 The domicile of a married woman as at any time on or after 1st January 1974 shall, instead of being the same as her husbands by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other

145 146

Gray v Formosa (1963) pg 259.267. 1973

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individual capable of having an independent domicile .This means that for all purposes a married woman is to be treated as capable of acquiring a separate domicile; though in vast majority of cases she and her husband will, independently, acquire the same domicile. It is however quite possible for happily married spouses to have separate domiciles. For example, a person domiciled in New York marries a fellow domiciled in England, both intending at the end to go live in New York.147 However, before 1974 there was an absolute rule, to which there were exceptions, that the domicile of a married woman was the same as, and changed with, the domicile of her husband as discussed above.148 This rule reflected social conditions and attitudes of past age; it led to serious injustice to wives especially in the matter of divorce jurisdiction, but it has been abolished in 1974. Section 1 (1) of the Act is retrospective in the sense that it applies to women married before as well as after January 1, 1974. Hence, a transitional provision was needed. Section 1(2) provides that where immediately before that date a woman was married and then had her husbands domicile by dependence, she is to be treated as retaining the domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until it is changed by acquisition of another domicile either on or after that date. Thus,

147 148

Ibid Ibid

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in IRC v Duchess of Portland,149 a woman with a domicile of origin in Quebec married a domiciled Englishman in 1948. She lived with her husband in England but retained links with Quebec, visiting it for ten to twelve weeks every summer, keeping a house which she owned there ready for immediate occupation and retaining Canadian citizenship. She intended to return permanently to Quebec with her husband when he retired from business, but continued to live in England. It was held that the effect of section 1 (2) was that she retained her English domicile of dependency as a domicile of choice. In effect, the pattern of her own life before 1974 was given no weight. The Law Commission has recommended, in the context of its proposal on reformulation of the domicile that any person at any date after the enactment of the new rules should be determined as if those rules had always been in force.150 However, this transitional problems may give rise to a problem similar to one found at common law when the husband died. Taking an hypothetical case; where H domiciled in France marries W domiciled in Scotland and they live in England. In 1972, H leaves W in England and returns to live in France. Where is W domiciled in 1974? After 1973, W retains Hs domicile in France as if it were a domicile of choice and this will continue until she utilizes her new capacity to acquire a domicile of choice in England, where she wishes to remain living. Does she acquire such an English

149 150

(1982) Ch 314 Law of Domicile, para, 8. 7

81

domicile merely by continuing and intending to live permanently in England. On the analogy of common law decisions involving acquisition of a domicile of choice after the death of a husband, W immediately acquires an English domicile and no further act on her part is necessary. Authority for this view can be found in the obiter dicta in IRC v Duchess of Portland.151

4.3.0: DOMICILE OF PERSONS OF UNSOUND MIND A person of unsound mind cannot acquire a domicile of choice and as a general rule, retains the domicile which he had when he became insane.152 Since he cannot exercise any will, he can neither acquire nor lose a domicile. Nor can his domicile be changed by the person in charge of him. Most of the cases which support these statements concerned persons who were lunatics so found by inquisition. This procedure and the term lunatic are obsolete in English domestic law, which now make provision for many kind and degrees of mental disorder.153 It seems unlikely that all persons who suffered from any form of mental disorder for which provision is made by English domestic law would be regarded as dependent persons for the purpose of the law of domicile. Whether or not

151 152 153

Ibid Bempde v. Johnstone (1796) 3 Ves, 198 Mental Health Act (1983)

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they could form the necessary intention to acquire or lose a domicile is likely to be treated as a question of fact in each case. There is one exception to the rule stated above that a mentally disordered person retains the domicile he had when he became insane. If a dependent child becomes insane and remains so after attaining the age of sixteen, the appropriate parent has power to change his domicile even after he attains that age. Whether the power is exercised or not is a question of fact in each case. Under the new domicile provisions proposed by the Law Commission,154 an adult lacking the capacity to form the intention necessary for acquiring a domicile would be domiciled in the country with which he was for the time being most closely connected. When that capacity was restored to him, he would retain the domicile he had immediately it was restored, but could of course then acquire a new domicile under the rules applying to adults generally.

4.4.0: MERITS AND DEMERITS OF DOMICILE The English preference for domicile is based on two main grounds. First, domicile means the country in which a man has established his permanent home, and what can be more natural or more appropriate than subject him to his home law? It is difficult to agree that he should be excommunicated from that law merely because technically he
154

Law Commission

83

is a citizen of some state that he may have abandoned years ago.155 Secondly, domicile furnishes the only practicable test in the case of such political units as the United Kingdom, Canada, Australia, and USA where the same nationality embraces a number of sometimes diverse legal systems. The expression national law when applied to a British subject is meaningless. It is one system in England, another in Scotland; similarly for a Canadian, there is one system in Ontario and a quiet different one in Quebec. In the course of its development in England, however, the law relating to domicile has acquired certain vices. A short mention of these will suffice. First, it will not infrequently happen that the legal domicile of a man is out of touch with reality, for the exaggerated importance attributed to domicile of origin, coupled with the technical doctrine of its revival may well ascribe to a man a domicile in a country which by no stretch of the imagination can be called his home. Secondly, an equally irrational result may ensue from the view, sometimes accepted by the English courts, that long residence is not equivalent to domicile if accompanied by the contemplation of some uncertain event the occurrence of which will cause a termination of the residence. Thirdly, the ascertainment of a mans domicile depends to such an extent on the proof of his intention, the most elusive of all factors, that only too often it will be impossible to identify it with certainty without recourse to the courts.
155

Law of Domicile

84

4.5.0: CONCLUSION In conclusion, it has been suggested that the capacity to acquire a domicile of dependent person is not always governed by English law, the law forum. Such a possibility was adumbrated obiter in an English case in 1887. 156 Its acquisition is not itself a problem for the solution of which a rule for the choice of law is required. For the connecting factor in any English choice of law rule must logically always be interpreted according to English notions.157

156 157

Urquhart v Butterfield (1887) 37 Ch.D 357 at 384 Re Martin (1900) P 211 at 227

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CHAPTER 5 GENERAL CONCLUSION AND RECOMMENDATION

5.0.0: CONCLUSION In summary of this essay, questions concerning the status of a body of persons associated together for some enterprise, including the fundamental question whether it posses the attribute of legal personality, must on principle be governed by the same law that governs the status of the individual, i.e. by the law of domicile. What this law admits of no doubt if we reason on the analogy of the individual. Every person acquirers at birth a domicile of origin by operation of law. In the case of the legitimate natural person it is the domicile of his father. It is however clear that the law of domicile needs some radical modifications especially concerning on the few Nigerian situations. It is so dishearten to know that our judges have now chosen to adhere strictly to the received English law rules which have been subjected to reform in England where they originated from, but further cling conservatively to the outdated rules. In conclusion, it may be said that a system which is based upon domicile, is free and more elastic than that which is based upon nationality because nationality is generally too artificial and has little to recommend it. The Nigerian legislature and court should remove some of the archaic doctrines that seem to have eaten deep into our modern

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dispensation, and should form a new definition of domicile, simple and more workable and in line with the concept of habitual home rather than permanent home.

5.1.0: RECOMMENDATIONS I would recommend that as touching intention to prove acquisition of domicile; a) When a person has his home in a country, he should be presumed to intend to live there permanently. b) Where a person has more than one home, he should be presumed to intend to live permanently in the country in which he has his principal home. c) Where a person is stationed in a country for the principal purpose of carrying on a business, profession or occupation and his wife and children have their home in another country, he shall be presumed to intend to live permanently in the latter country.158 d) The rule of reviving domicile of origin should be regarded as the principle of continuity i.e. a persons domicile once acquired would continue until he obtained another one. There will be no question of previous reviving. e) The fact that a dependent person can only acquire his/her domicile by the act of the person he is depensdent upon should be rerconsidered. Especially that of a married woman, she should retain her domicile after acquiring that of her husband.
158

Article 2 of Code of Domicile

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f)

In all, the law commissions proposals should be considered as a further important step in the process of improving the structure, effectiveness and fairness of the rules of domicile

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BIBLOGRAPHY

ARTICLE ON INTERNET Omoruyi . I. O. Domicile As A Determinant Of Personal Laws: A Case For The Abandonment Of The Revival Doctrine In Nigeria http://www.nigerianlawguru.com.article>accessed 2000

BOOKS Agbede. I. O, Themes on Conflict of Laws (2001) Shaneson C.I Ltd Beale, Treatise on the conflict of laws (1935) Bryan A. Garner, Blacks Law Dictionary 8th ed. Thompson West 2004 Cheshire and Norths; Private International Law(1974)7th edition Colier J.G; Conflict of laws 2nd ed. Cambridge C. UP 1994 Dicey and Morris; Private International Law (8th ed.1969) Goodrich and Scoles; Conflict of laws (1964)39 Graveson; conflict of laws (1969) Morris, Private International Law 4th ed by J.C Mclean Sweet & Maxwell 1993 Oxford Learners Advanced Dictionary 6th ed.by Sally Wehmeier (2000) Rabel .E.; The Conflict of laws ; A comparative study.(2nd ed.1958) Wolff. M., Private International Law (2nd ed. 1950) p 109

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