Domicile is one of the important element in private international law. it is a decisive factor for choosing appropriate nations law which has more connection with the parties to the issue.
2. In personal matters Lex Patriae (law of nationality) is the
governing law in the civil countries (other than European
countries – usually meants American countries).
And Lex Domicili (law of domicile) is the governing law in
common law countries.
Domicile is considered as a connecting factor to determine the
relationship between a person and the legal system of a country.
Generally, Under the English law, domicile refers to the permanent
residence of a person. (N.B: now the conditions have liberalised)
3. The term domicile was defined by Lord Cranworth- i.e domicile
means home, permanent home.
The case said that, A will must be executed according to the law of
the country where the testator was domiciled at the time of his
death.
The facts are:- ‘A’ was born in Scotland. As a young man, he went
to East Indies(Islands of land of South & South East Asia), where
he remained above 20 yrs in company’s service. He then returned to
Scotland and lived in Edinburgh, where he put his name on the
books of the municipality, married, took a house, entered into
business as a partner in a banking – house & became a member of
various societies there established.
At the end of few years he left Edinburgh in anger, the
banking business had come to an end, and he took off his name
from the books of the municipality and of the various societies and
declared his intention never to return to “Auld Reekie”.
4. He lived in London, first in lodgings, and then in houses hired for
different periods; lectured on Oriental literature, and endeavoured
there by to increase the sale of some books which he had written .
At the end of some years he went to Paris to avoid some
annoyances in London, but never made any declarations with
respect to London, that he had made regarding Edinburgh. He left
his works in London, and ornamented furniture which he desired a
friend to keep for him till he return.
He died in Paris, having just before made a will in the English
Form: held that he had lost his Scottish and obtained an English
domicile .
The evidence allowed to leaves no doubt that he went over to Paris
for a temporary purpose; that he never meant to reside there
permanently; that his domicile, his establishment, his principal
residence, was meant to be in this country; and he never abandoned
it. S o his domicile in England, was perfectly right.
5. But this traditional notion of domicile has received lot of criticism
from common law countries (England) as well.
Jurist “Morris” also disagrees with it.
*Because a person may be domiciled in a country but that is not
his home,
*or a person can have only one domicile but he may have more
than one home,
*or he may be homeless, but he must have a domicile.
Domicile is based on the principle of individual liberty – i.e an
individual is free to establish his domicile at any place of the world.
The national boundaries are not a hindrance to his choice of
domicile. This implies that a person may have his nationality in one
country and domicile in another.
6. This also implies that a person remains stateless, he cannot remain
without a domicile.
For matters which are intimately connected with his personal life,
such as marriage, children, adoption, guardianship, succession,
capacity and all other matters relating to his family life should be
determined by the law of the place with which he is most intimately
connected.
Domicile concept is used for the purpose of establishing the
connection of a person with the law of the country with which he or
she is most intimately connected.
It is also used to establish the connection of a dependant with
the law of the domicile of the person to whom he or she is
dependent.
7. Domicile is not necessarily a place where a man is living with his
wife & children for many years.
If it can be shown that an intention was always there in his
mind not to make it a permanent home and to return to his original
place, then he would not be deemed to have established his domicile
there, and his original domicile continues to cling to him, though he
had severed all connections with it.
8. In Ramsay v. Liverpool Royal Infirmary (1930)
One George Bowie who died in England left a will. The will was
invalid according to English law. But the will was invalid according
to Scottish law.
According to Private International Law, the validity of will is to
be decided by applying law of domicile. Thus the question before
the English court was that what was the domicile of George Bowie
at the time of his death.
George Bowie was born in Scotland. His domicile of origin was
Scotland. He was working in Scotland till the age of 37. He then
moved to England and until his death he resided in England. He did
not work in England. He lived on the bounty of his brother.
During a period of 36 yrs stay in England he left England only
twice, once a short visit to U.S.A and once a short holiday to the Isle
of Mann.
9. He never returned to Scotland, not even to attend his mother’s
funeral. He even made arrangements for the burial of his body
after his death in England. There was no evidence to show that he
had intention to return to Scotland.
Neverthless the House of Lords held that he had not acquired
English Domicile of choice.
A person who had not accepted an employment and lived on
the bounty of another for a long period in a country cannot claim
to have acquired English domicile of choice.
Four general principles that governing law of domicile:-
(1) No person can be without domicile
(2) No person can have domicile at 2 places simultaneously
(3) Domicile denotes the connection of a person with a territorial
system of law
(4) The presumption is in favor of continuance of an existing
domicile.
