Domicile (law)
Encyclopedia
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently.
Traditionally many common law
jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws
and would, for example, only recognize a divorce
conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted.
exist, if child
ren become adult at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go. Hence, if according to the laws of their domicile 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 be distinguished from nationality
which is the relationship between an individual and a country
. Where the state and the country are co-extensive, the two may be the same. However, where the country is federated into separate legal systems, nationality and domicile will be different. For example, one might have American nationality and a domicile in Texas, or British nationality and a domicile in Scotland. Further, one can have dual nationality but not more than one domicile at a time. A person may have 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 distinct from habitual residence
where there is much less focus on future intent. Domicile is being supplanted by habitual residence
in international conventions dealing with Conflict and other private law matters.
“Domicile” has a somewhat technical legal meaning in common law jurisdictions and should not be confused with:
(1) “Domicile” in civil law jurisdictions.
(2) “Domicile” in EU regulations and international treaties (where a definition often overrides the common law sense of domicile).
(3) “Domicile” in ordinary English usage.
The rules determining domicile in common law jurisdictions are based on case law in origin. Most jurisdictions have altered some aspects of the common law rules by statute, the details of which vary from one jurisdiction to another. The general framework of the common law rules has however survived in most jurisdictions and is in outline as follows:
In some jurisdictions the status of illegitimacy has been abolished, and slightly different rules apply where parents have differing domiciles.
The rule that the domicile of origin revives on abandonment of a domicile of choice has been altered in some jurisdictions.
In particular, during minority, a child's domicile of dependency changes to match that of the adult on whom the child is said to be dependent.
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 individual parties (that is, natural persons) to invoke the diversity jurisdiction
of a United States district court
(a federal trial court), all the plaintiff
s must have a different state of domicile from all the defendant
s (so-called "complete diversity").
is the name of the concept of main domicile in Austrian and German law.
Traditionally many common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
and would, for example, only recognize a divorce
Divorce (conflict)
In modern society, the role of marriage and its termination through divorce have become political issues. As people live increasingly mobile lives, the conflict of laws and its choice of law rules are highly relevant to determine:...
conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted.
Outline 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 marriageMarriage (conflict)
In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships...
exist, if child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
ren become adult at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go. Hence, if according to the laws of their domicile 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
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
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
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
is interpreted, or if the person has no valid will, how their property will pass by intestate succession.
Domicile should be distinguished from nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
which is the relationship between an individual and a country
Country
A country is a region legally identified as a distinct entity in political geography. A country may be an independent sovereign state or one that is occupied by another state, as a non-sovereign or formerly sovereign political division, or a geographic region associated with a previously...
. Where the state and the country are co-extensive, the two may be the same. However, where the country is federated into separate legal systems, nationality and domicile will be different. For example, one might have American nationality and a domicile in Texas, or British nationality and a domicile in Scotland. Further, one can have dual nationality but not more than one domicile at a time. A person may have a domicile in one state while maintaining nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
in another country. Unlike nationality, no person can be without a domicile even if stateless
Statelessness
Statelessness is a legal concept describing the lack of any nationality. It is the absence of a recognized link between an individual and any state....
.
Domicile is distinct from habitual residence
Habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
where there is much less focus on future intent. Domicile is being supplanted by habitual residence
Habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
in international conventions dealing with Conflict and other private law matters.
“Domicile” has a somewhat technical legal meaning in common law jurisdictions and should not be confused with:
(1) “Domicile” in civil law jurisdictions.
(2) “Domicile” in EU regulations and international treaties (where a definition often overrides the common law sense of domicile).
(3) “Domicile” in ordinary English usage.
The rules determining domicile in common law jurisdictions are based on case law in origin. Most jurisdictions have altered some aspects of the common law rules by statute, the details of which vary from one jurisdiction to another. The general framework of the common law rules has however survived in most jurisdictions and is in outline as follows:
Domicile of origin
Dicey states the common law rule thus:- Every person receives at birth a domicile of origin: A legitimate child born during the lifetime of his father has his domicile of origin in the country in which his father was domiciled at the time of his birth; A legitimate child not born during the lifetime of his father, or an illegitimate child, has his domicile of origin in the country in which his mother was domiciled at the time of his birth; A foundling has his domicile of origin in the country in which he was found. A domicile of origin may be changed as a result of adoption, but not otherwise.
In some jurisdictions the status of illegitimacy has been abolished, and slightly different rules apply where parents have differing domiciles.
Domicile of choice
Dicey states the common law rule thus:- Every independent person can acquire a domicile of choice by the nation of residence and intention of permanent or indefinite residence, but not otherwise.
- A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely ( not based on the immigration status,but based on the social & moral status ), and not otherwise.
- When a domicile of choice is abandoned, either a new domicile of choice is acquired; or the domicile of origin revives.
The rule that the domicile of origin revives on abandonment of a domicile of choice has been altered in some jurisdictions.
Domicile of dependency
Dicey states the common law rule thus:- The domicile of a dependent person is, in general, the same as, and changes (if at all) with, the domicile of the person on whom he is, as regards his domicile, legally dependent.
In particular, during minority, a child's domicile of dependency changes to match that of the adult on whom the child is said to be dependent.
U.S. law
Each stateU.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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 individual parties (that is, natural persons) to invoke the diversity jurisdiction
Diversity jurisdiction
In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...
of a United States district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
(a federal trial court), all the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s must have a different state of domicile from all the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s (so-called "complete diversity").
United Kingdom Law
The rules are in short as set out above. The Domicile and Matrimonial Proceedings Act 1973 abolished the rule that a married woman had the domicile of her husband (with transitional rules for those married before 1 January 1974). The rules dealing with the domicile of minors differ slightly between England and Wales (governed by the Domicile and Matrimonial Proceedings Act 1973) and Scotland (governed by Section 22 Family Law (Scotland) Act 2006).Austrian and German law
HauptwohnsitzHauptwohnsitz
In German-speaking countries, Hauptwohnsitz denotes the primary place of residence. In Germany and Austria, the concept of Hauptwohnsitz has special legal ramifications, primarily involving tax....
is the name of the concept of main domicile in Austrian and German law.