1911 Encyclopædia Britannica/Domicile
DOMICILE (Lat. domicilium, from domus, home), in law, a term which may be defined generally as the place of a man’s permanent abode; a precise definition is a matter of acknowledged difficulty. Its use in Roman jurisprudence was to fix the jurisdiction to which a person was subject generally, not by reason of a particular circumstance, as the place where a contract was made or where property is situate. Hence it was admitted that a person might have as many domiciles as he had residences possessing some degree of permanence. In the middle ages, when a great diversity of laws had arisen, questions concerning personal status, as the age of majority or the capacity to contract a given marriage, came naturally to depend on the law to which the person was subject by reason of the general jurisdiction over him; and questions relating to the various items of his movable property grouped together, as those of his testamentary capacity or of the succession on his intestacy, had to be considered from a similarly personal point of view. There resulted a general agreement that a man’s legal character, so to speak, should be determined by his domicile, and this introduced a stricter notion of domicile, allowing each person to have but one. He might be subjected without great inconvenience to more than one jurisdiction, but not to more than one law. This is the position which domicile now holds in English jurisprudence. It is the criterion of the law applicable in a large class of cases, and it must be single for each person; and English courts have continually to struggle with the difficulty of selecting his domicile from among the various places in any of which he may be said to reside.
Since the beginning of the 19th century most of the leading continental states have unified their internal laws; and attachment to a province by domicile having thus become an unnecessary consideration, they have adopted political nationality as the criterion of the law to be applied in most of the questions which used to depend on domicile. Thus as between themselves they have greatly simplified the determination of those questions, but a similar elimination of domicile is impossible in what concerns British subjects, because the British empire continues to include a great variety of laws, as those of England, Scotland, the province of Quebec, the Cape Colony, &c. Within the British dominions domicile is the only available criterion of the legal character of a British subject, and all British courts continue to apply the same criterion to British subjects outside those dominions and to foreigners, so that, for example, the age of majority of a British subject or of a Frenchman domiciled in Germany would be referred by a British court to German law. Indeed so deeply is the principle of domicile seated in British law that only legislative action could allow a British court to substitute a new principle. And even a French, Italian or German court, applying political nationality as its new criterion to the legal character of a British subject, could obtain no definite result unless it supplemented that criterion by the old one, domicile, in order to connect the person in question with one of the legal systems existing in the British dominions.
Again, so long as the change of the criterion has not become universal, a new question is introduced by its having been made in some countries only. Denmark being one of those European states which still adhere to the principle of domicile, we will take it as an example in order not to complicate the illustration by such differences of internal law as exist in the British dominions. Suppose that a Danish court has to decide on the age of majority of a Danish subject domiciled in France, Italy or Germany. Its rule refers the question to the law of the domicile, and the law of the domicile refers it back to the law of the political nationality. What is to be done? This and all other questions relating to the application of the principle of domicile, which has been only summarily indicated, are treated under International Law (Private). Here we shall deal briefly with the determination of domicile itself.
The Roman jurists defined domicile to be the place “ubi quis larem rerumque ac fortunarum summam constituit; unde rursus non sit discessurus si nihil avocet: unde cum profectus est, peregrinari videtur: quo si rediit peregrinari jam destitit.” This makes that place the domicile which may be described as the headquarters of the person concerned; but a man’s habits of life may point to no place, or may point equally to two places, as his headquarters, and the connexion of domicile with law requires that a man shall always have a domicile, and never more than one. The former of these difficulties is met in the manner described by Lord Westbury in Udny v. Udny (Law Reports, 1 House of Lords, Scottish Appeals). “It is,” he said, “a settled principle that no man shall be without a domicile, and to secure this end 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 his mother, if the child be illegitimate. This is called the domicile of origin, and is involuntary. It is the creation of the law, not of the party. It may be extinguished by act of law, as for example by sentence of death or exile for life, which destroys the status civilis of the criminal; but it cannot be destroyed by the will and act of the party. Domicile of choice is the creation of the party. When a domicile of choice is acquired, the domicile of origin is in abeyance, but is not absolutely extinguished or obliterated. When a domicile of choice is abandoned, the domicile of origin revives, a special intention to revert to it not being necessary. A natural-born Englishman may domicile himself in Holland, but if he breaks up his establishment there and quits Holland, declaring that he will never return, it is absurd to suppose that his Dutch domicile clings to him until he has set up his tabernacle elsewhere.” If to this we add that legitimate minors follow the changes of the father’s domicile and a married woman follows the domicile of her husband, also that compulsory detention will not create a domicile, the outlines of involuntary domicile will have been sufficiently sketched.
For the establishment of a domicile of choice there must be both animus and factum, intention and fact. The fact need not be more than arrival in the territory of the new domicile if there be the necessary intention, while any number of years’ continuance there will not found a domicile if the necessary intention is absent. As the result of the most recent English and Scottish cases it may be laid down that the necessary intention is incompatible with the contemplation by the person in question of any event on the occurrence of which his residence in the territory in question would cease, and that if he has not formed a fixed and settled purpose of settling in that territory, at least his conduct and declarations must lead to the belief that he would have declared such a purpose if the necessity of making an election between that territory and his former one had arisen. The word territory, meaning a country having a certain legal system, is used advisedly, for neither the intention nor the fact need refer to a locality. It is possible that a Scotsman or a foreigner may have clearly established a domicile of choice in England, although it may be impossible to say whether London, Brighton or a house in the country is his true or principal residence. What is here laid down has been gradually attained. In the older English cases an intention to return to the former domicile was not excluded, if the event on which the return depended was highly uncertain and regarded by the person in question as remote. Afterwards a tendency towards the opposite extreme was manifested by requiring for a domicile of choice the intention to associate oneself with the ideas and habits of the new territory—Quatenus in illo exuere patriam, not in the political sense, which it was never attempted to connect with change of domicile, but in the social and legal sense. At present it is agreed that the only intention to be considered is that of residence, but that, if the intention to reside in the territory be proved to amount to what has been above stated, a domicile will be acquired from which the legal consequences will follow, even defeating intentions about them so clearly expressed as, for instance, by making a will which by reason of the change of domicile is invalid. The two most important cases are Douglas v. Douglas, 1871, L. R. 12 Equity 617, before Vice-chancellor Wickens, and Winans v. Att. Gen., 1904, Appeal Cases 287, before the House of Lords.
When the circumstances of a person’s life point to two territories as domiciles, the selection of the one which alone can fill that character often leads to appeals even up to the highest court. The residence of a man’s wife and family as contrasted with his place of business, his exercise of political or municipal functions, and any conduct which tends to connect his children with a given country, as by their education or the start given them in life, as well as other indications, are often cited as important; but none of them are in themselves decisive. The situation must be considered as a whole. When the question is between the domicile of origin and an alleged one of choice, its solution is rendered a little easier than it is when the question is between two alleged domiciles of choice, the burden of proof lying on the party which contends that the domicile of origin has been abandoned.
In the state of the law which has been described it will not be found surprising that an act of parliament, 24 & 25 Vict. c. 121, recites that by the operation of the law of domicile the expectation and belief of British subjects dying abroad with regard to the distribution of their property are often defeated, and enacts that when a convention to that effect has been made with any foreign country, no British subject dying in such country shall be deemed to have acquired a domicile therein, unless he has been resident in such country for one year previous to death and has made a declaration in writing of his intention to become domiciled; and that British subjects so dying without having so resided and made such declaration shall be deemed for all purposes of testate or intestate succession as to movables to retain the domicile they possessed at the time of going to reside in such foreign country. Similar exemptions are conferred on the subjects of the foreign state dying in Great Britain or Ireland. But the act does not apply to foreigners who have obtained letters of naturalization in any part of the British dominions. It has not been availed of, and is indeed an anachronism, ignoring as it does the fact that domicile has no longer a world-wide importance, owing to the substitution for it of political nationality as a test of private law in so many important countries. The United States of America is not one of those countries, but there the importance of domicile suffers from the habit of referring questions of capacity to the law of the place of contract instead of to any personal law.
- (Jno. W.)