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Domicile (law)
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In Conflict of Laws, domicile (sometimes termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a person's status, capacity and rights. The international term for this as a connecting factor is the lex domicilii, i.e. the law of the domicile.
arly societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children become adult at different ages, etc.? One answer is that people must be given a basic set of rights, like a passport, that they carry with them wherever they go.
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Encyclopedia
In Conflict of Laws, domicile (sometimes termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a person's status, capacity and rights. The international term for this as a connecting factor is the lex domicilii, i.e. the law of the domicile.
Development of the concept
In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children become adult at different ages, etc.? One answer is that people must be given a basic set of rights, like a passport, that they carry with them wherever they go. Hence, if according to their domicile of origin a person has the right to marry multiple spouses, the marriages should not alternate between valid and invalid every time they cross a state boundary where the laws are different. If someone is an infant and therefore has reduced contractual capacity, that will tend to apply wherever they go. Furthermore, when a person dies, it is the law of their domicile that determines how their will is interpreted, or if the person has no valid will, how their property will pass by intestate succession.
Domicile should also be clearly distinguished from nationality (also known as lex patriae) which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two are the same. However, where the country is federated into separate legal systems, nationality and domicile will be different. Hence, one might have American nationality and a domicile in Texas. Further, one can have dual nationality but not more than one domicile at a time. This does not prevent a person from having a domicile in one state while maintaining nationality in another country. Unlike nationality, no person can be without a domicile even if stateless. Domicile is being supplanted by habitual residence in the international conventions dealing with Conflict and other private law matters.
Domicile of origin
A person acquires a domicile of origin at birth. The domicile of a minor child is that of:
- the father if legitimate;
- the mother if illegitimate;
- the individual who has primary parental responsibility rights if not a parent; or
- the country in which the child was found if a foundling. Under the law of the United States, where a person's place of birth is unknown, their domicile of origin is "the place to which a person can earliest be traced.".
The domicile of origin is absolute and will be the base reference point throughout a person's life. Thus, if a person acquires a domicile of choice but later abandons it, the domicile of origin will automatically revive. During the minority, the child has domicile of dependency, and it changes to match that of the relevant adult.
Domicile of choice
A person who has reached the age of majority, is free to choose a new domicile. This choice is effective when an individual has both:
- the factum, i.e. unequivocally abandons the old domicile, and
- the animus semper manendi, i.e. enters a new state with the intent to make it their permanent home.
The latter is very difficult to prove because most people retain affection for their previous state and think that they may one day return. Even if a domicile of choice is found to have arisen, it will be lost as soon as either the factum or the animus is lost. At this point, the domicile of origin revives.
State domicile in the United States of America
Each State of the United States is considered a separate sovereign within the U.S. federal system, and each therefore has its own laws on questions of marriage, inheritance, and liability for tort and contract actions. Persons who reside in the U.S. must have a state domicile for various purposes. For example, an individual can always be sued in their state of domicile. Furthermore, in order for parties to invoke the diversity jurisdiction of a United States Federal Court, the plaintiffs must have a different state of domicile from at least one of the defendant]s].
Australian law
In Australia, the rules of domicile were originally part of common law rather than legislation. However, during the late 1970s and early 1980s, the Commonwealth and all the States passed Domicile Acts. The main purpose of these Acts was to remove discrimination against women. They also go a significant way towards codifying the common law rules of domicile; but they were not intended to be an all-encompassing codification of the common law.
The main purpose of the Domicile Act 1982 (Cth), was to abolish, insofar as it was part of the law of the Commonwealth or of the Territories, "the rule of law whereby a married woman has at all times the domicile of her husband" (s. 3(1)). In particular, section 6 provides that "The rule of law whereby a married woman has at all times the domicile of her husband is abolished."
The most important provisions of this Act are:
- "The rule of law whereby a married woman has at all times the domicile of her husband is abolished." (section 6)
- "The rule of law whereby the domicile of origin revives upon the abandonment of a domicile of choice without the acquisition of a new domicile of choice is abolished and the domicile a person has at any time continues until he acquires a different domicile." (section 7)
- A person has the capacity to have an independent domicile if, either, they have attained the age of eighteen years, or if they have ever been married, and if they have the mental capacity to possess an independent domicile, but not otherwise. (section 8)
- Section 9 makes rules concerning the domicile of children whose parents are separated or divorced (the domicile of the child is the domicile of the parent of custody), and children who are adopted (the domicile of the adopted child is the same as if they were the legitimate child of the adopted parents, or else if there is only one adoptive parent, the domicile of that parent)
Sections 10 and 11 deal with the domicile of choice in a particular country. The act defines "country" (in section 4) to include not just sovereign states, but also subnational entities such as states, provinces and territories. Section 10 provides that a person's domicile of choice is in a country if they intend that that country be their permanent home. Section 11 provides that, where several countries form a union (for example, the several states of Australia, or the several provinces of Canada), if a person is domiciled in that union, then, if no other rule applies in the case, they shall be domiciled in the country of that union with which they have the closest connection.
The Domicile Act 1982 (Cth) is almost word-to-word identical to the Domicile Act 1979 (NSW), Domicile Act 1981 (QLD), Domicile Act 1980 (SA), Domicile Act 1980 (TAS), Domicile Act 1978 (VIC), Domicile Act 1981 (WA). The main differences in the Commonwealth Act are additional provisions relating to the application of the law to the territories, etc.
See also
- Hauptwohnsitz - concept of main domicile in Austrian and German law
External links
- Ashton, R. K. Acquiring a Domicile of Choice and Losing a Domicile of Origin
- Trott, Philip D A. Dual Nationality
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