Domicile -- Personal Law Connecting Factors (L9)

Question 1

What are the personal law connecting factors?

Answer 1

Domicile.
Habitual residence.
Nationality.

Question 2

What is (classic) domicile?

Answer 2

Domicile attaches a person to a legal system.

“A person’s domicile is the place or country which is considered by law to be the centre of his life” (Wolff).

Question 3

What does it mean to say that classic domicile is a ‘unitary concept’?

Answer 3

No matter the context in which we encounter it, it follows the same rules.

See Sekhri v Ray [2014] EWCA Civ 119, McFarlane LJ at [10], citing Arden LJ in Barlow Clowes International Limited v Henwood [2008] EWCA Civ 77 at [8].

Question 4

What are the different types of domicile?

Answer 4

Domicile of origin.
Domicile of dependence.
Domicile of choice.

Question 5

What does Family Law (Scotland) Act 2006 s22 set out?

Answer 5

Under-16 domicile.

Question 6

Classic domicile is NOT a harmonised concept.

Answer 6

Domicile is pars fori (Re Annesley [1926]).

For the forum to decide.

Question 7

Every person sui juris has a domicile.

Answer 7

At any given time, the propositus must have a domicile.
A propositus cannot have two domiciles concurrently.

Question 8

What is the tempus inspicidendum?

Answer 8

The time at which their domicile needs to be identified.

Question 9

What is ascription of domicile of origin?

Answer 9

Ascribed to every person at the point of birth.
Dependent on whether the person’s parents are married.

Legitimate child takes the father’s domicile – Udny (1869); cf Flynn (1968);
Illegitimate child takes the mother’s domicile – Sekhri v Ray (2014).

Place of birth is irrelevant.

Question 10

What is the importance of the continuation of domicile of origin?

Answer 10

Means that someone always has a domicile. Continues until such a time as it is superseded by another domicile.

Bell v Kennedy (1868).
HoL said the domicile of origin adheres until a new domicile is acquired. At the tempus inspiciendum, it was not clear where Bell wanted to settle. This means he still had a Jamaican domicile of origin. Even though he said he would leave for good, his domicile of origin still stood until it was very clear he acquired a new domicile.

Question 11

What is the ‘Under-16 Domicile’ per Family Law (Scotland) Act 2006, s22?

Answer 11

(1) … where –
the parents of a child [a person under 16 years – ss22(4)] are domiciled in the same country as each other; and
the child has a home with a parent or a home(s) with both of them.
(2) The child shall be domiciled in the same country as the child’s parents,
Otherwise the child shall be domiciled in the country with which the child has for the time being the closest connection (s22(3)).

Question 12

Why is the ‘Under-16 domicile’ somewhat difficult to apply?

Answer 12

Applies to proceedings commenced in Scotland from May 2006.

Somewhat vague, does it mean people born after this date? To those under 16 at that date? To anyone?

Question 13

What is a domicile of dependence?

Answer 13

Acquisition of ‘domicile of dependence’ / ‘derivative domicile’ … a matter of law.
Domicile and Matrimonial Proceedings Act 1973, s4.

Question 14

How has the domicile of dependence differed in Scots and English law?

Answer 14

Since 2006, Scots and English choice of law rules on derivative domicile have differed.

England:
DMPA 1973, s4 continues to apply.

Scotland:
2006 Act repeals DMPA 1973, s4.
S22 covers all questions pertaining to the domicile of ‘under-16 persons’.

Question 15

What does the acquisition of a domicile of choice require?

Answer 15

Must have legal capacity (being sui juris (legally independent)) and mental capacity;

Residence in the new country (‘factum’); and

Intention (‘animus manendi’) to reside in the new country for as long as can be seen ahead.

Question 16

How does the case of Willer 1954 show the nature of the factum?

Answer 16

You cannot acquire new domicile by wishful thinking. Intention has to be followed through by physically residence. If intention is clear, minimum of residence will suffice,.

Canadian soldier moved to Scotland. His residence was only the use of a room in a friend’s house. Court held this was enough for the purpose of acquiring a domicile of choice.

Question 17

How does the case of Puttick show the nature of the factum?

Answer 17

Individual moved to England. Question over whether she had acquired a domicile of choice as she was considered to be a German terrorist, so was her residence unlawful?
Individual could not gain a beneficial domicile of choice because this would allow her to benefit from illegality.

Question 18

How does the case of Mark v Mark show the nature of the factum?

Answer 18

Baroness Hale said there is no reason in principle why someone whose residence in England is illegal could not establish English domicile.
Party whose domicile was in question was an illegal over-stayer.

Baroness Hale took a purposive approach. Thought that domicile wasn’t much of a benefit because it was divorce proceedings. Contrast to Puttick where it was the case that an individual should not benefit from their own illegal behaviour.

Question 19

How does the case of Jopp v Wood show the nature of the factum?

Answer 19

Individual in India for 25 years. Scots domicile of origin continued. Residence by itself, no matter for how long, is ineffective without intention.

Question 20

How does the case of Capdeveille show the nature of the animus?

Answer 20

Frenchman came to work in Manchester. Lived in lodgings for 29 years but he had always expressed a desire to return to France. Only renting in England, but bought a home and land in France for his return.
Court said they were looking for a conscious adoption of a new legal system, which was lacking.

Question 21

How does the case of Winans v AG show the nature of the animus?

Answer 21

Tax case. His executors wanted to avoid paying estate duty. Mr Winans was pro-USA in his views. Born in New Jersey, grew up in Maryland. Did he retain his domicile of origin or had he acquired domicile of choice in England when he moved in his 20s? Never returned to the USA, left for 47 years. Came to England reluctantly, always in rented accommodation.

Court said he had a fixed purpose of returning to the USA in his life, and this mindset continued until the point of his death.

Question 22

How does the case of Liverpool Royal Infirmary v Ramsay show the nature of the animus?

Answer 22

Scotsman, lived in Scotland until his mid-40s, where he moved to England to be near family. Stayed there until he died even after his family had passed.
He had written a will, favouring 3 Glasgow hospitals, this was valid by Scots law, but not by English law.
He left a surviving niece, she claimed the will was not valid so she should receive it.

Court said prolonged residence is not sufficient unless there is an intention to adopt that place as the new legal system.
Court said he was simply in a state of inertia, he simply did not make the effort to make change, there was no conscious choice.

Question 23

How does the case of Furse show the nature of the animus?

Answer 23

Furse was born in Rhode Island. Died in England in his 80s. In his 40s, he and his wife bought a farm in England. Spoke often about America, but he kept saying he would stay on the farm in England until he can no longer work the farm.
He had set up a very vague contingency. The court said he was unwilling to see that condition satisfied, he had no real desire to go back.
Animus established.

Question 24

How does the case of Ross show the nature of the animus?

Answer 24

Ross was the clan chief. Case arose on the grounds of a divorce action. He lived in New York. He tried to evade the divorce action in Scotland, claimed he had a NY domicile.

Lord Buckmaster - court must consider carefully circumstances under which a declaration is made, who it was said to, whether it was carried through.
If an individual is making a lifetime declaration, they may be saying it by reason of tact.
If they do so before death e.g. in a will, this may be for tactics (not to pay tax, etc).

Question 25

How does the case of Spence v Spence show the nature of the animus?

Answer 25

Wife seeking divorce in Scotland based on husband's domicile here. He denied it. Born and raised in Scotland. Married in a religious service in Spain, had children there and then returned to Scotland. Moved to Spain for a fresh start after selling Scottish company. Resigned synagogue membership in Scotland, sold house here. Got into a long-term relationship in Spain, But had not registered for authorities in Spain. Social circle was still Scottish and returned on occasion for business reasons. Left Scotland to evade tax. No intention shown, so no domicile of choice acquired.

Question 26

What does retention of the domicile of choice require?

Answer 26

Retention of EITHER residence OR intention.

Question 27

How does the case of Raffenel demonstrate retention of residence?

Answer 27

English domicile of orgin, acquired French domicile with marriage. When husband died, she wanted to move back to England. She got on the boat to commence her journey, had to get off the boat and then died. At the point of her death, she retained her French domicile, as she still resided in France.

Question 28

How does the case of Lloyd Evans demonstrate intention to keep the domicile of choice?

Answer 28

Domicile of origin was England and Wales. Domicile of choice in Belgium acquired. WWII broke out and for his safety he moved back to England. They did not embrace life in London. Social circle was membership of Belgium club in England. Died before he could return to Belgium as the war was still ongoing. Although he physically left Belgium, his mind was still there and he had intended to live there, so he retained his Belgian domicile of choice.

Question 29

What does loss of domicile of choice require?

Answer 29

Loss of BOTH elements, animo et facto. The requisite mental element: - Animo non revertendi. - Sine animo revertendi (In re Flynn; contrast Morgan v Cilento).

Question 30

How does the Flynn case demonstrate the requirements for loss of domicile of choice?

Answer 30

Domicile of origin was unsure. Spent much of his time in California. Court held he did acquire a domicile of choice in California. Grew to show enthusiasm for Jamaica, bought a home there, spent time there, kept personal belongings there. Did he retain his domicile of choice in California, or did he acquire one in Jamaica? Held he had lost his Californian domicile. Domicile of choice will be at an end, when departing from a country where the intention to return, or afterwards, will wither away.

Question 31

How does the Cilento case differ from Flynn?

Answer 31

English domicile of origin. Queensland, Aus domicile of choice. What was his intention when he left Queensland? Had his intention to return withered? He died before his intention to return died.

Question 32

What happens once the domicile of choice is lost?

Answer 32

Once you lose the domicile of choice either: You instantly acquire a new domicile of choice. OR The domicile of origin is revived.

Question 33

What is the rule of revival of domicile of origin?

Answer 33

No rule of continence of domicile of choice. Domicile of origin, if displaced, is in abeyance, ready to revive; it does not require to be 'reconstituted' animo et facto

Question 34

How does Udny v Udny show the revival of domicile of origin?

Answer 34

Colonel Udny. Scots domicile or origin. Acquired domicile of choice in England. Went on the run to France to evade creditors. On the evidence it was clear that he had left England with the intention of abandoning it. Lost his English domicile of choice. No evidence he had an intention for France. Held to have been of Scots domicile at the relevant point, revived. Lost Westbury: domicile of origin revives and it exists when there is no other domicile. Does not require to be regained or reconstituted animo et facto by intention or residence.

Question 35

Does the Under-16 domicile revive?

Answer 35

S22, Family Law (Scotland) Act 2006. Does it revive? If so, which 'Under-16' domicile? Domicile of origin is a one set thing that never changes. Under-16 domicile is a variable changing factor. One might have multiple over the year before they turn 16. Should it be the one prescribed at the point of birth? The last one held? ScotGov did consult on this, but no legislation proposed.

Question 36

Who bares the onus of proof regarding domicile?

Answer 36

Burden of proof on anyone who argues there HAS been a change. In re Fuld; Kebbeh v Farmer.

Question 37

What does the case of In re Fuld say about the standard of proof regarding domicile?

Answer 37

Suggests domicile of origin is very hard to get rid of. Born in Germany, German domicile of origin. Jewish, had to flee Germany during the war period. Went briefly to England, then to Canada, where he studied. He had houses in England and in Germany. On the evidence, clear he was regarded by people in Germany as a German resident. But he spent a lot of time in England and had medical treatment there. He was between England and Germany. No animus manendy in England. Burden of proof in changing his domicile was not charged.

Question 38

What does the case of Harrison v Harrison say about the standard of proof regarding domicile?

Answer 38

Suggested the easiest change to prove if that of a young person to their first domicile of choice.

Question 39

What does the case of Agulian v Cyganik say about the standard of proof regarding domicile?

Answer 39

Individual's domicile of origin was Cypriot. Lived in England for decades, but within a Cypriot community. Late in life he got engaged to a woman in England. Did not make provision for her in his will, she wanted to make a claim on his estate when he died. She argued he was domicile in England. She was not successful. At first instance she was successful, but then in the appeal they said the first instance judge looked to closely at the engagement, should have looked at his whole life, no animus manendy.

Question 40

What does the case of Reddington v Riach's Executors say about the standard of proof regarding domicile?

Answer 40

Easier to establish the gaining of a domicile of choice within another domicile in the UK rather than another place.

Question 41

What does the case of Lord Advocate v Brown's Trustees say about the value of authorities?

Answer 41

A domicile opinion that does not cite and deploy case law in argument is of little detail.