AN APPRAISAL OF THE DOCTRINE OF DOMICILE

UNDER THE PRIVATE INTERNATIONAL LAW

BY

OMOTAYO COMFORT OLUWATOBI

MATRIC NO: 06/40IA151

BEING A LONG ESSAY SUBMITTED TO THE FACULTY OF LAW,

UNIVERSITY OF ILORIN, ILORIN, NIGERIA, IN PARTIAL FULFILMENT
OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF
BACHELOR OF LAW (LL.B HONS.) IN COMMON LAW.

APRIL 2011
1

CERTIFICATION
This is to certify that this long essay: AN APPRAISAL OF THE DOCTRINE OF
DOMICILE UNDER THE PRIVATE INTERNATIONAL LAW was written by
OMOTAYO COMFORT OLUWATOBI. It has been read and approved as
meeting part of the requirements for the award of Bachelor of Law (LL.B Hons.)
Degree in Common Law in the Faculty of Law, University of Ilorin, Ilorin,
Nigeria.
DR. (MRS) NIMAT M. ABDULRAHEEM
Supervisor
DR. ADEDOYIN RAJI

DATE
......
DATE

SIGNATURE
...
SIGNATURE

HOD of Host Dept.

Dept. of Jurisprudence & International law ..

...

PROF. A ZUBAIR

SIGNATURE

DATE

HOD of Graduating Dept.

Dept. of Islamic Law

..

DR. WAHAB O. EGBEWOLE

DATE

SIGNATURE

Dean, Faculty of Law

EXTERNAL EXAMINER

....

DATE

SIGNATURE

..................

...................

ABSTRACT
This write up is to assess the quality of the value of the doctrine of domicile under the
Private International Law i. e Conflict of laws.
Private International Law is that part of law of a country which deals with cases
having a foreign element. It is therefore the that part of law that comes into into play
whenever the issue before the affect some events/ facts/ transactions that are so
closely connected with a foreign system of laws as to necessitate recourse to that
system.
The law pertaining to where a person intends to make his permanent home is subject
to a lot of argument. No wonder domicile has been said to be easier describe than to
define. There are indication from both local and foreign journals which indicate that
there are conflicting understanding in the area of domicile.
Under the Private International Law, the concept of domicile has several as well as
area of applications, some of which include the acquisition and loss of domicile of
choice, origin and dependence.
In Nigeria, the doctrine of domicile is alien, a product of our colonial link with the
British common law. Due to the diversi ethnicity and culture in Nigeria. The doctrine
of domicile is based on its character subject to conflict based in the Nigerian context.
This long essay identifies the various definition of domicile, the distinctive features of
each type of domicile, their workings, variations and also their shortenings.

TABLE OF CONTENTS
COVER PAGE....i
CERTIFICATION PAGE.....ii
ABSTRACT...iii
TABLE OF CONTENTS..................................................................................iv
DEDICATION...viii
ACKNOWLEDGEMENTix
TABLE OF CASESx
TABLE OF STATUTES....xii
LIST OF ABBREVATIONS.xiii

CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION.1
1.1.0: BACKGROUND TO THE STUDY............3
1.2.0: OBJECTIVES OF STUDY..3
1.3.0: FOCUS OF STUDY...4
1.4.0: SCOPE OF STUDY4
1.5.0: METHODOLOGY.................5
1.6.0: LITERATURE REVIEW..5
1.7.0: CONCLUSION7

CHAPTER 2
DOCTRINE OF DOMICILE
2.0.0: INTRODUCTION8
2.1.0: DEFINITION OF DOMICILE .......................................................................9
2.2.0:ASCERTAINMENT OF DOMICILE16
2.3.0: DOMICILE AND NATIONALITY...................17
2.4.0: RULES AND TYPES OF DOMICILE.20
5

2.5.0: CONCLUSION........................25

CHAPTER 3
ACQUISITION OF DOMICILE
3.0.0: INTRODUCTION27
3.1.0: ACQUISITION OF DOMICILE OF ORIGIN..28
3.2.0: ACQUISITION OF DOMICILE OF CHOICE.31
3.2.1.0: RESIDENCE (FACTUM) ..33
3.2.1.1: THE REQUISITE INTENTION (ANIMUS) 36
3.2.1.2: SPECIAL CASES IN ACQUISITION OF DOMICILE OF CHOICE...49
3.2.1.3: LOSS OF DOMICILE OF CHOICE..........................................................55
3.3.0: DOMICILE OF ORIGIN AND CHOICE CONTRASTED.......55
3.4.0: CHANGE OF DOMICILE AND NATIONALITY ...61
3.5.0: CONCLUSION....62

CHAPTER 4
DOMICILE OF DEPENDENT PERSONS
4.0.0: INTRODUCTION..64
6

4.1.0: DOMICILE OF CHILDREN 64

4.2.0: DOMICILE OF MARRIED WOMEN....66
4.3.0: DOMICILE OF PERSON OF UNSOUND MIND 69
4.4.0: MERITS AND DEMERITS OF DOMICILE....70
4.5.0: CONCLUSION 72

CHAPTER 5
GENERAL CONCLUSION
5.0.0: CONCLUSION73
5.1.0: RECOMMENDATION.74
BIBILOGRAPHY.....................................76

DEDICATION
To God be the glory for what He has done. I dedicate this work to God almighty for
being everything I ever need throughout my course of study. To my parents I am
dedicating this work to you too, most especially to my mother Mrs. Abosede Elizabeth
I love you so much mummy and thank you for being there for me

ACKNOWLEDGEMENT
Above all, I will forever be grateful to the Almighty God for everything, I will never
fail to say thank you Jesus for being there for me and for being my pillar throughout
my stay on this campus. To my darling parent, thanks for making life worth living,
thanks for everything spent on me and for every support given you are the best and I
love you so much. I wont fail to acknowledge all my lecturers right from 100L to this
stage thanks for every knowledge youve imparted into me thank you so much for
building me to be useful in this generation.
And to my wonderful and eloquent supervisor Dr Mrs. N.M. Abdulraheem thank you
for your support, guidance, correction and approval. I admire you amongst all the
female lecturers in this faculty, you are the best. You are a gem.
I will not fail to appreciate my friends though countless but some cant be excluded.
Folaranmi Eniola Richard thanks for your love, you are the best. To my loving friend
Adewole Adefunminiyi, thanks for your support .And to all my friends , kareem
Temitope, Adeshina Aminat, Soremekun Oluwaseun, Runsewe Bimpe, Oluwole
Olusegun, Egunjimi Emannuel. And to my neighbours in Kemtas. I cannot forget my
siblings, thank you all for being there. I love you all. To my wonderful classmates I
appreciate you all both friends and foes may we meet at the top.
I will never forget my spiritual home the Redeemed Christian Fellowship
(RCF)Shadow of the Almighty indeed it is the gathering of the liveliest and happiest
people on campus, thank you all for your prayers and support. And to our patron
Daddy Bamidele, I admire your courage and zeal, may the Lord continue to strengthen
you. Thank you sir for your words of encouragement.

TABLE OF CASES

NIGERIA

Adeyemi v Adeyemi (1962) LLR 90 @ 72

Enwonwu v Spira (1965) 2 All NLR 233

Fonseca v Passmen (1958) WRNLR 41 @ 42

Odiase v Odiase (1965) NMLR 196

Udom v Udom (1962) LLR 112 @ 117

GHANA
Crammer v Crammer (1987) 1 FLR 116
Lloyd v Lloyd (1961) 2 FLR 349
Att. For Alberta v Cook ( 1926) AC 444

UNITED KINGDOM

A. G v Pottinger (1861) 30 L J Ex 284 at 292

Bell v Kennedy(1808)LR .Sc & Div 307

Blender v Johnstone( 1769) LR IP & M 611

Bowie (Ramsay) v Liverpool Royal Infirmary(1930) AC 588 at 598

Collier v Rivas (1841) 2 Curt 855

Doucat v Geoghegeon (1878)L.R.9 Ch .D at 256

Fentiman (1991) CL. J 445

10

Gulbenkian v Gulbenkian (1937) 4 All ER 618 at 612

Harrison v Harrison(1953) 1 WLR 865

Henderson v Henderson (1969)p. 77 at 80

Hodgson v De Beauchesne ( 1858) 12 Moo PCC 285 at 329, 330

IRC v Bullock (1976) WLR 1178

IRC v Duchess of Portland (1982) Ch 314 at 318- 319

Moorhouse v Lord (1863)10 HL Cas 27 at 285

Plentika v Plentika (1965) 109 Sol Jo 72

Plummer vIRC (1988)1 All ER 79

Putman v Johnson 10 Mass 488, 501(1813)

Re Craignish (1892) 3 Ch 180, 192

Re Flynn (No 1 ) (1968) 1 WLR 103

Re Fulds Estate (No 3) (1968) p 615 at 684

Re Furse ( 1980) 3 All ER 838

Whicker v Hume(1858)7 H L Cas 124 at 160

White v Tenant (1880) WLR 790

Winans v A. G(1904) AC 287

Jopp v Wood (1865) 4 D.J & S.

11

TABLE OF STATUES

AUSTRALIA

Australian Family Law Act 1975

Australian Matrimonial Causes Act 1959

Australian Domicile Act 1982

CANADIAN

Canadian Divorce Act 1968

Code of Domicile

Code of Napoleon (French civil code) 1803

ENGLAND

Domicile and Matrimonial Proceeding Act 1973

NEW ZEALAND

New Zealand Domicile Act 1976

12

LIST OF ABBREVIATIONS

A.C: Appeal Cases

A.G: Attorney General

ALL ER : All England Report

All NLR: All Nigerian Law Report

Beav: Beavan Charles, Reports Rolls court.

Ch: Chancery

Ch. D: Chancery Division

Curt: Curties, W.C Reports Ecclestical

Ed: Edition

FLR: Federal Law Report

H L Cas: House of Lords Cases

LR: Law Report

LR. Eq: Law Report Equity Cases

LLR: Lagos Law Report

NMLR: Nigerian Monthly Law Report

NLR: Nigeria Law Report

NNLR: Northern Nigeria Law Report

NWLR: Nigerian Weekly Law Report

WNLR: Western Nigeria Law Report

WRNLR: Western Regional Nigeria Law Report

WLR: Western Law Report

13

CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
It has been universally recognized that questions affecting the personal status of a
human being should be governed constantly by one and the same law irrespective of
where he may happen to be or of where the facts giving rise to the question may have
occurred. But unanimity goes no further, there is disagreement on two matters. What
is the scope of this personal law, as it is called and should its criterion be domicile or
nationality?1 In England, however it has long been settled that question affecting status
are determined by the law of the domicile of a person and that broadly speaking such
questions are those affecting family relations and family property. To be more precise,
the following matters are to a greater or lesser extent governed by the personal law:
the essential validity of marriage; the effect of marriage on the propriately rights of
husband and wife; jurisdiction in divorce and nullity of marriage, though only to a
limited degree; legitimacy, legitimating and adoption, wills of movables and intestate
succession to movables. The concept of domicile however, is not uniform throughout

Cheshire and Norths :on the merits of nationality and domicile in pp 165- 167 of Private

International Law

14

the world Domicile known as habitual residence to some and permanent residence to
some people.2
The English concept of domicile is bedeviled by rules, these are complex often
impossible to justify in policy terms and lead to uncertainty of outcome. Before
looking at these rules in details, one preliminary matter should be considered. This is
question of whether the same test for domicile applies regardless of the context I
which the matter is raised. English law take the view that the test which determines the
place of a mans domicile must remain constant no matter what the nature of the issue
may be before the court. Domicile is regarded as a relative term which varies in
meaning according to the different situation (e.g. divorce, taxation intestate
succession) to which it is applicable. There are however types of domicile, domicile of
origin: gotten from birth, domicile of choice: acquired in substitution for the present
one and also domicile of dependent persons: acquire through the person they are
depending on.
These and many more are what is going to be discussed later. Domicile, in its
appraisal, its type, workings and also shortenings.

Whicker v Hume (1858) 7 H L Cas 124 at 160

15

1.1.0: BACKGROUND TO THE STUDY

Until the beginning of the nineteenth century, domicile was universally recognized as
the basis for the application of personal law.3 However, as a result of the influence of
Maincini4 in the mid-nineteenth century some of the continental European countries
adopted nationality in preference to domicile as the connecting factor for the
ascertainment of personal laws. Since then, some countries have somehow combined
the two criteria. For common law countries, however, domicile appears to have been
generally accepted. In Nigeria, the adoption of can be justified on ground of practical
necessity as Nigeria nationality covers a number of independent legal systems.5

1.2.0: OBJECTIVES OF STUDY

The aim of this write up is to
1. Assess the definitions of domicile under the Private International Law.
2. Access the quality of the value of domicile.
3. To discuss the rules of domicile as contained in the received English law and to
show how these rules have been, or ought to be modified in order suit Nigerian local
conditions.

Logical and Legal basis of the conflict of laws .pp 104.

Cheshire G.C ; Private International Law (7th ed) p. 180

The French Civil Code (code Napoleon) 1803

16

4. To identify the distinctive features of each types of domicile, their workings,

variations and also their shortenings.
5. To proffer recommendations on the doctrine of domicile.

1.3.0: FOCUS OF STUDY

Under the Private International Law, the concept of domicile has several as well as
areas of applications, some of which include the acquisition and loss of domicile of
choice, origin and dependent.
The focus of study or centre of interest therefore is on the concept of domicile as
adopted to determine the individual personal law which is the law of the country to
which the person primarily belongs especially for the purpose of family law and
succession. So personal law determine matters such as essential validity of marriage,
intestate succession, legitimacy, legitimation and adoption etc. All these and many
more are what will be discussed in this essay.

1.4.0: SCOPE OF STUDY

The range of this essay however, is strictly on the assessment of domicile under the
Private International Law in both the Inter- state and International situations and that
the adherence to the English law by the Nigerian judges which should be curbed since
the rules itself is being subjected to reform in England.
17

1.5.0. METHODOLOGY
Both primary and secondary sources of law and the basis for this research work. Thus
the Domicile Act, Law Textbooks, Law report, Articles on law, various statute and
cases on the subject matter are sources of information. This project shall also be both
comparative and analytical in nature.

1.6.0: LITERATURE REVIEW

In this study relevant literature, judicial authorities and statutes shall be examined.
Thus, credence shall be given to several authors in the field of the Conflict of laws
whose works have in no small measure contributed immensely to Private International
Law on the whole. Works of different authors both foreign and Nigerian such as
Morris and Dicey, Cheshire an Norths, Graveson, Agbede I.O, to mention a few will
serve as an aid to arrive at a logical conclusion on this study.
Morris in his book The Conflict of laws6 provides a comprehensive and authoritative
coverage of the subject but failed to Graveson ,Conflict of laws7 who only commented
on the definition of domicile to no longer fits the complexity, movement and
sophistication of modern life in which many of our best intentions become temporary
through frustrating circumstances. But he failed to point out the ways to go about

Morris: the Conflict of laws, 4th ed by J D McClean, London, sweet and Maxwell, 1993, p 12

Graveson, conflict of laws (1969) p.20

18

giving a definition that will fit our modern life. On the other hand, Agbede .I .O,
Themes on Conflict of Laws8 talk on the need to establish residence and intention to
remain in a place permanently (or indefinitely),he also went further to provide a
comprehensive coverage of the spectrum of the law of domicile as it applies in
Nigeria but he did little in expanciating on this requisites of acquiring a domicile of
choice.
Accordingly, Cheshire and Norths in their book Private International Law9 gave a
good insight to domicile being a difficult term to define but rather better in
description, but their way of describing was faulty in that there was no clear
distinction between a permanent home and habitual home.
Many books and Statutes shall be used mostly in the course of this study. This is
because textbooks are what has been compiled by various authors while using the
Statutes to back up their argument. Thus, it is only logical for this approach to be
adopted since the word domicile itself still happen in how day to day living, as people
migrate from one country to another, so there was need for domicile. In this vein,
Omoruyi. I. O in his Article10 Domicile as a determinant of personal law; a case for
the abandonment of the revival doctrine in Nigeria, examined that the common law
8

Agbede I.O., Themes on Conflict of Laws.( 2001) Shaneson C. I Ltd

Cheshire and Norths , Private International Law, (1974) (7th ed)

10

http://www.nigerianlawguru.com.articles>accessed 2000

19

conception of domicile vis--vis the revival doctrine cannot adequately fit into the
realities of the contemporary society and therefore the law must be reformed to reflect
this fact.
Though, all these authors have tried to assess the doctrine of domicile but it is
however clear that there is need for the modifications of some of these rules of the
received English law before it can be incorporated into the Nigerian laws.

1.7.0: CONCLUSION
In conclusion, this chapter is an insight into the study of the doctrine of domicile, the
quality of it, the aims and objectives, the various methods to be used and also the
various authors who dealt succinctly with the assessment of domicile. This chapter is
just the introductory part of the study of the doctrine of domicile under Private
International Law.

20

CHAPTER 2
DOCTRINE OF DOMICILE
2.0.0: INTRODUCTION
Differences which exist between two or more legal systems, provide the theoretical
foundation for the subject known as conflict of laws. Every legal systems has rules
which tends to distinguish it from others. With particular regards to matters considered
as bothering on an individuals civil status different legal system have established
rules as to the law, which ought to govern in those cases. These matters usually
involve those aspects of the individuals interests for which resort can be had to a
single system of law, in making a decision as to a appropriate law that ought to
govern.
In order to identify the specific system of law that should govern these issues with
regards to a particular or individual the laws of different countries have established
diverse criteria. While in England domicile is the rule, in Italy and some other
European countries it is nationality. Some other systems tends to combine both
criteria11. As part of our received English law, domicile is the criterion recognized in
the Nigerian law.

11

Agbede. I. O: Themes on conflicts of laws, Ibadan. Shaneson , 1989. P 49

21

In this chapter, the various definitions of domicile shall be examined, the English
conception of domicile, domicile and nationality, how domicile can ascertained and
the forms and types of domicile.

2.1.0. DEFINITION OF DOMICILE

It is not an easy task to define the concept of domicile because, the concept is not
uniform throughout the world therefore it is subject to diverse meanings.
According to Sir GEORGE JESSEL;
12

The term domicile is incapable of definition

MORRIS also has asserted that

Domicile is easier to illustrate than it is to define

13

This is probably due to the fact that traditional definition has become rather obsolete
as a result of judicial modification, which has attended the concept overtime.
The Oxford Advance and Learners Dictionary define domicile as
The place where somebody lives, especially when it is stated for official or legal
purpose

14

12

Doucat v Geoghegeon (1878) L. R. 9 Ch. D at 256

13

Morris, Conflict of laws, 4th ed by J. C McLean, Sweet and Maxwell, 1993, p.126th edition

14

6th edition by Sally Wehmeier (2000)

22

The Black Law Dictionary defines the concept of the domicile as

A persons legal home. That place where a man has his true, fixed and permanent
home and principal establishment, and to which whenever he is absent he has the
15

intention of returning

LORD CRANWORTH attempted a definition sometimes ago in Whicker v Hume16

to the effect that;
By domicile we mean home, the permanent home, and if you do not understand
your permanent home I am afraid that no illustration drawn from foreign writers or
foreign language will very much help you to it

This definition by Lord Cranworth is obviously simplistic from the subsequent judicial
developments on these issues. In fact there is an opinion that the definition by LORD
CRANWORTH is far too simplicitic and indeed somewhat misleading17
LORD CRANWORTHs definition errs on the side of simplicity because there are
circumstances in which a person may not be residence in his place of domicile. The
fact that one has lived in a particular place for several years is irrelevant where there is
intention to remain there18.
MORRIS also objects to this definition on the ground that a persons domicile may not
always be the permanent home. In fact according to him;
15
16

Bryan A. Garner: 8th edition Thompson West 2004

(1958) H L C 124 at 160

17

Collier J. G : Conflict of laws, 2nd edition, Cambridge, C. U. P 1994. P 40.

18

White v Tenant (1880) W L R 790 and IRC v Bullock (1976) W L R 1178

23

A person may be domiciled in a country which is not and never has been his home;
19

a person may have two homes but he can only have one domicile.

He concluded that there is often a wide difference between the English concept of
domicile and population of a home.
Judicial authorities have equally shown that to acquire domicile according to the
received English law, it is necessary to establish residence in a place and an intention
to reside there permanently. The English courts have with complete justification
established the principle of definition of domicile for the purpose of English rule
conflict of laws according to thee concept in English law Nevertheless it is clear from
decided cases that to acquire domicile in territory, according to the received English
law, it is necessary to establish residence and an intention to remain there permanently
(or indefinitely). A domicile can only be acquired by the concurrence of these two
factors. However, an intention of indefinite residence is not equivalent to permanent
residence if it is contingent upon uncertain event.20
Thus in Moorhouse v Lord21 it was held that:
The present intention of making a place a persons permanent home exists only
where he has no other idea than to continue there without looking forward to any
event, certain or uncertain which might induce him to change his residence. If he

19
20
21

Ibid at 13
Ibid
(1863) 10 H L Cas 272 at 285-286

24

has in his contemplation some event upon the happening of which his residence will
cease it is not rather a present intention of making it a temporary home, though for a
period indefinite and contingent.

This rule of domicile might have worked well during its formative (mid-Victorian
England) era of comparative certainty, simplicity and legalism but in the
contemporary world of tension and increased mobility, few things for human affairs
can be certain least of all is ones intention. As stated by CHESHIRE22,
Singular indeed would be the man who could unreservedly warrant that whatever
good or evil might befall him he would never return whence he came

In GRAVESONs

23

view, this definition no longer fits the complexity movement and

sophistication of modern life in which many of our best intentions become temporary
though frustrating circumstances. Rather curiously, this unsatisfactory definition of the
English concept of domicile has been in Fonseca V Passman

24

, THOMAS.J. held

that:
To establish a domicile in Nigeria the mere factum of residence here is not
sufficient. There must be unequivocal evidence of animus manendi or intention to
remain permanently

22

Cheshire: Private International Law (7th ed) at 145

23

Graveson: Conflict of laws (1969) p. 207

24

(1958) WRNLR 41 at 42

25

More curiously, however is the failure of the Nigerian judged to distinguish between
inter-state and international situation. For instance, in Udom v Udom

25

, COKER.J.

who was concerned with an inter-state conflict problem said:

The subject must not only change his residence to that of a new domicile, but also
must have settled or resided in the new territory cum animo manendi The residence
in the new territory must be with the intention of remaining there permanently to
reside, the factum is the actual residence.

This dictum appears to ignore the warning of BEALE26that the circumstances of life in
a country must have weight with the judge in determining the meaning of domicile.
In USA there is a habit of moving from place to place; in England the habit is to
remain indefinitely in one place. The rule of English law will have many Americans
27

without a domicile of choice.

American judges are equally conscious of the inconvenience that will result from
adopting the English rigid definition of domicile. Thus, PARKER .J. held in Putman
v Johnson

28

In this new and enterprising country it is doubtful whether one half of

the young men, at the time of their emancipation, fix themselves in any town with an
intention of always staying there. They settle in a place by way of experiment to see
whether it would suit their view of business and advancement in life, and with an
25

(1962)LLR.112 at 117

26

Beale, J.HA. :Treatise on the conflict of law (1935),P.106

27

Ibid

28

10 Mass 488,501(1813)

26

intention of removing to some more advantageous position, if they should be

disappointed. Nevertheless they have their home in their chosen abode while they
remain.
Where in accordance with COKER Js dictum shall we locate the domicile of the
nomadic cattle Fulanis? it is common knowledge that an Ibo man, for example, who
was born in a northern state, who has been living in the in North all his life and who
has no fixed intention as when he would leave there, would nonetheless entertain a
hope, however remote, of returning to the East dead or alive. It may be appropriate
to recall, at this junction, the decision in a post reception English case, where it was
held that a person who intended to reside in a country indefinitely might be domiciled
there although he envisaged the possibility of returning one day to his domicile of
origin.
In GRAVESONs29 view, we must not deny local domicile to a man who has settled in
a place without intending to remain there as long as circumstances allow him to do so.
In view of the limited function of domicile in matters of inter-state conflict problems
in Nigeria. It is suggested that habitual residence in any constituent state should be
sufficient to found a domicile in such a state.
This suggestion appears more practical and more consonant with the social conditions
in Nigeria than the dictum in Udom v Udom30. In a union where inter-state
29

Graveson,op,cit,Five Sheffield Jubilee Lectures at 97

27

movements are unrestricted, it will be difficult, if not impossible to find people who
will wish to reside in a particular state for better for worse.
Moreover, it is in best interest of Nigerian people to discourage ethnic cohesion and
minimizing its attendant evils. Such a social policy ought to influence judicial
decisions, but the decision in Udom v Udom31 domicile does not appear to take
account of this policy.
As for the necessary requirements for establishing a domicile in Nigeria at the
international level, it would be better, one imagines, to impute an intention to be
domiciled in Nigeria to persons who are habitually resident in Nigeria. This
suggestion is designed to aid the courts in ascertaining a persons v. therefore, if there
is evidence convincingly showing that a propositus has no such intention, he should he
should be denied a local domicile.
The object of determining a persons domicile is to connect him with some legal
system for certain legal purposes. To establish this connection it is sufficient to fix his
domicile in some country in the sense of the conflict of laws .e.g. England or
Scotland, California or New York. It is not necessary to show in what part of such a
country he is domiciled32, but it is usually insufficient to show that he is domiciled in
some composite state like the United Kingdom, the United states, Australia or Canada
30

Ibid

31

Ibid

32

Re craignish(1892)3 Ch 180,192

28

with, each of which comprised several countries in the conflict of laws sense. A
person who emigrates, Scotland or to Canada with the intention of settling either in
England or British Columbia, does not change his domicile until he has decided in
which country he intends to settle and has actually settled there33.

2.2.0: ASCERTAINMENT OF DOMICILE

The question as to whether a person has established factual residence in a particular
country raises little or no problem in practice. However, the thorough manner in which
the English courts attempt to discover the necessary intention has produced absurd
results.
These courts have found it necessary to consider such difficult as a persons taste,
habits, conducts, action, ambitions, health, hopes, projects and so on. there is no act,
no circumstances in a mans life however trivial it may be in itself, which ought to be
left out of considerationBut these factors are, one imagines, hardly suitable for
judicial enquiry. What is rather absurd in the whole exercise is that circumstances
which are treated as decisive in one case may be disregarded in another or even relied
upon in support of a different conclusion. No circumstances of group of circumstances
appear to furnish a definite criterion of the existence of the necessary intention.

33

Att.Gen For Alberta v Cook (1926) AC 444

29

The latitude of discretion which the courts reserve to themselves makes their decisions
appear arbitrary and very often inconsistent. The result is that a persons domicile may
remain uncertain throughout his life. Must our domicile asks Gravenson continue to be
kept a legal secret from us until we either invoke divorce jurisdiction or die?
A desirable approach for the Nigerian courts in this regards is to tackle this problems
with the presumption that a person intends to reside indefinitely in a country where he
is habitually resident.
This presumption which should be rebuttable will, it is hoped, obviate the very
complicated problems involved in discovering a persons exact intention when he is
absent from jurisdiction or when (as is usually the case) he is already dead.

2.3.0: DOMICILE AND NATIONALITY.

The change from domicile to nationality on the continent of Europe started in France
with the promulgation of the code Napoleon in 1804. One of the principal objects of
the codifiers was to substitute a uniform law throughout the whole of France for the
different coutumes of the French provinces. In matters of personal status these
coutumes applied to persons domiciled within the province, whenever they happened
to be. It was natural that the new uniform law should apply to Frenchmen everywhere,

30

Article 3 (1)34 of the civil code provided that the laws governing the status and
capacity of persons govern Frenchmen even though they are residing in foreign
countries.No provision was expressly made for the converse case of foreigners
residing in France, but the French courts held that in matters of status and capacity
they too were governed by their national law. The provisions of the French code were
adopted in Belgium and Luxembourg and similar provisions were contained in the
Austrian code of 1811 and the Dutch code of 1829.
The change from domicile to nationality on the continent of Europe was accelerated
by Mancinis famous lecture he advocated the principle of nationality on the ground
that laws are made more for an ascertained people than for an ascertained territory. A
sovereign (he said) in framing laws for his people should consider their habits and
temperament, their physical and moral qualities and even the climate, the temperature
and fertility of the soil. This was heady wine for a people preparing to throw off a
foreign yoke and unify all the small state of Italy into a new nation. Under Mancinis
influence article 6 of the Italian civil code (1865) provided that the status and
capacity of persons and family relations are governed by the laws of the nation to
which they belong. Mancinis ideas proved extremely influential outside Italy too,
and in the second half of the nineteenth century the principle of nationality replaced
that of domicile in code after code in continental Europe, until today only Norway and
34

Code Napoleon 1804

31

Denmark retain the principle of domicile. The result is that the nations of their world
have become divided in their definition of the personal law; and it is the fact more
than any other which impedes international agreement on uniform rules of the conflict
of laws. What then are the arguments in favour of nationality and domicile as the
personal law?
The advocates of nationality claim that it is more stable than domicile because
nationality cannot be charged without the formal consent of the state of new
nationality. However, as has been well said, the principle of nationality achieves
stability, but by the sacrifice of a mans personal freedom to adopt the legal system of
his own choice. The fundamental objection to the concept of nationality is that it may
require the application to a man, against his own wishes and desires has perhaps risked
his life.
It is also claimed that nationality is easier to ascertain than domicile because it
involves a formal act of naturalization and does not depend o the subjective intentions
of the propositus. This is undoubtedly time, though there may be difficult cases of
double nationality or of statelessness35. But it does not follows that the most easily
ascertained laws is the most appropriate law. Many immigrants who have no intention
of returning to their country of origin do not trouble to apply for naturalization. It
would have been ludicrous to say that only the English courts, and not the courts of
35

Beckett(then second legal adviser to the foreign office) 1939

32

California, had jurisdiction to grant a divorce to the film actor Charlie Chaplin- or, for
that matter, that only the American courts had jurisdiction to grant a divorce to Mr.
Winans.
The decisive consideration for countries like the United Kingdom, the United State,
Australia and Canada is that, save in a very few respects, there is no such things as
United Kingdom, American, Australian, or Canadian law. Since the object of referring
matters of status and capacity to the personal law is to connect a man with some one
legal system for many legal purposes, nationality breaks down altogether if the state
contains more than one country in the sense of the conflict of laws. This is something
which continental lawyers seem unable to comprehend. They sometimes speak as
though the United kingdom and the United States are as legally backward today as
France was before 1804 or Italy before 1865, simply because there is a diversity of
legal systems throughout the state.

2.4.0: RULES AND KIND OF DOMICILE

There are five general rules or principles to be discussed
1. It is a settled principle that no person can be without a domicile36. The rule springs
with some system of law by which a number of his legal relationships may regulated.

36

Bell v Kennedy(1868) LR 1 Sc & Div 307

33

it is a settled principle said Lord Westbury in leading case37, that no man shall be
without a domicile and to secure this result 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 the mother if illegitimate,. This has been called the domicile of origin, and
involuntary38
Also to a foundling, the place where is found will be his domicile. This prevail until a
new domicile has been acquire39, so that if a person leaves the country of his origin
with an undoubted intention of never returning to it again, nevertheless, his domicile
of origin adheres to him until he actually settles with the requisite intention in some
other country.
2. A person cannot have two domiciles. Since the object of law in insisting that no
person shall be without a domicile is to establish a definite legal system by which
certain of his rights and obligations may be governed, and since the fact and events of
his life frequently impinge upon several countries, it is necessary on practical grounds
to hold that he cannot possess more than one domicile at the same time, at least for the
same purpose.

37

Udny v Udny (1869) L.R. 1 Sc 441, 458

38

Westlake :S 248; Dicey and Morris P.126

39

IRc v Bullock(1976) 1 WLR 1178 at 1184

34

Domicile signifies connection with what has conveniently been called a law
district.40 i.e. a territory subject to a single system of law. In the case of a federation,
where the legislation authority is distributed between the state and federal legislatures,
this law district is generally represented by the particular state in which the propositus
has established his home41. A resident in the USA, for instance is not normally
domiciled in the USA as such, but in one of its states. Nevertheless, the doctrine of
unity of domicile one man, one domicile- may be modified by federal legislation. Thus
the family law 1975, which has force throughout the commonwealth of Australia,
provides inter alia that proceedings for a decree of dissolution of marriage is
domiciled in Australia42. Thus, the effect within a limit field is to create an
Australian, as distinct from a state, domicile and, indeed, one that, because of statutory
amendments in this limited content, is different from domicile in a state for other
purpose, e.g. succession43.
3. The fact that domicile signifies connection with a single system of territory law does
not necessarily connote a system that prescribes identical rule for all classes of
persons. It may well be that in a unit such as India different classes of the population
according to their religion, race or caste, but none the less it is the territorial law of
40

Dicey and Morris, pg 118- 119

41

Odiase v Odiase (1965) NMLR 196

42

Family Law Act 1975, s 39(3) (b)

43

Lloyd v Lloyd (1961) 2 FLR 349

35

India that governs each person domiciled there, not withstanding that Hindu law may
apply to one case, Muslim to another.
4. An existing domicile is presumed to continue until it is proved that a new domicile has
been acquire. Hence, the burden of proving a change of domicile lies on those who
assert it. Conflicting views have been expressed as to the standard proof require to
rebut the presumption. According to SCARMAN. J., the standard is that adopted in
civil proceeding, proof on a balance probability not that adopted proof beyond
reasonable doubt in the criminal proceedings.44 On the other hand, according to SIR.
JOCELYN SIMON P., the standard of proof goes beyond a mere balance of
probabilities45. This observation no doubt stems from such cases as Winans v A.G46
which appear to regard the intention in favouring of retaining the domicile of origin as
an almost irrebuttable presumption SCARMAN.J., however, added that two things
are clear-first, change, the domicile of origin persists; and secondly, that the
acquisition of a domicile of choice is serious matter not to be lightly inferred from
slight indications or casual words.
The presumption of continuance of domicile varies in strength according to the kind of
domicile which is alleged to. It is weakest when that domicile is one of dependency47
44

Re Fynn (No 1 ) (1968) 1 WLR 103

45

Henderson v Henderson ( 1969) p. 77 at 80

46

(1904) AC 287

47

Harrison v Harrison (1953) 1 WLR 865

36

and strongest when domicile is one of origin, for its character is more enduring, its
hold stronger, and easily shaken off48.
The law commissions proposals for the reform of the law of domicile would leave
unchanged the rule the burden of proving the acquisition of a new domicile falls on the
person alleging it. However, the normal civil standard of proof on a balance of
probabilities would apply in all disputes about domicile and no higher on different
quality of intention would be required when the alleged change of domicile was from
one acquired at birth than when it was from any other domicile.
5. For the purpose of a rule of conflict of laws, domicile means domicile in the English
sense. The question where a person in domiciled is determined soled in accordance
with English law. Thus, persons domiciled in England often acquired a domicile of
choice in France without complying with the formalities formerly required by French
law for the acquisition of a French domicile49. Conversely, a person domiciled in e.g.
France may acquire an English domicile of choice regardless of whether French law
would regard him as domiciled in England50. There is one statutory exception to this
rule. Section46(5) of the family law Act 1986 refers to domicile in a country in the
sense of that countrys law

48

Ibid

49

Collier v Rivas (1841)2 Curt 855

50

Ibid

37

It is too wide a formulation to say that an English court, domicile means domicile in
the English sense. Under the renvoi doctrine, English courts sometimes refers to the
whole law of a foreign country, including its rules of the conflict of laws, and accept a
reference back to English law either because the foreign conflict rule referrers to the
law of the nationality, and the propositus is a British citizen; or because the foreign
conflict rule refers to the law of the domicile, and the foreign court regards the
propositus as domiciled in England. In the latter case, it is not true that domicile in
English court always means domicile in the English sense; but it is still true that it
means domicile in the English sense for the purpose of an English rule of the conflict
of laws
There are different kind of domicile and they are;.
1. Domicile of origin
2. Domicile of choice
3. Domicile of dependent person e.g. domicile of children, married women, persons of
unsound mind and so on. All these will be discussed extensively in the next chapter

2.5.0: CONCLUSION
In conclusion of this chapter, domicile is regarded as a relative term which varies in
meaning according to different situation (for example taxation divorce interstate
succession) to which it is applicable. A judge must however inevitably focus his
38

attention on the concrete problem before him, otherwise he will neglect the social and
economic requirements of the situation. Also it is hard to believe that judges in this
country have not been influenced by an awareness of the consequences of the finding
as to domicile in the particular case before them. There is evidence that the courts
wish to achieve a number of policy objectives in particular, to validate wills and to tale
jurisdiction to grant a divorce whenever possible. It is easy for courts to achieve the
right result by manipulating the process of ascertaining the domicile, and is a likely
explanation of many cases which are otherwise hard to reconcile on their fact.

39

CHAPTER 3
ACQUISITION OF DOMICILE
3.0.0: INTRODUCTION
Every person in accordance with the English law is required to have or acquire a
domicile and since domicile is the means of ascertaining a persons personal law under
the English. In this regard, acquisition of domicile is a way by which domicile can be
obtained by a person. The various types of domicile has a way they can be acquired
e.g. domicile of origin is acquired at birth, this is rather automatic in that it is ascribe
to every person at birth unless such person acquire another by his own choice when
eligible51. Domicile of choice on the other hand is acquired when a person takes up
residence in another country which is backed up by an intention to remain
permanently. There are however special cases where domicile is being dictated by
some external necessity, such as offices, the demands of creditors or relief from
illness52. The loss of domicile of choice, domicile of origin and choice contrasted and
how domicile and nationality can be changed. All these are what shall be discussed
extensively as we proceed in this chapter.

51

Ibid at 458

52

Ibid at 458

40

3.1.0: DOMICILE OF ORIGIN

As domicile is the only means of ascertaining a persons personal under the English
law, it is inevitable that English law should require that everybody must have a
domicile. In order to make this rule work, the law assigns to every person a domicile
at birth which is known as domicile of origin. According to this rule , a legitimate
child takes the domicile of his father. An illegitimate child takes the domicile of its
mother. A foundling takes the domicile of the country where it is found.53
There are only few Nigerian cases on these,

54

but one may make the following

comments with regard to the operation of this rule in Nigeria. Unlike England, where
the husband and the wife (together with their infant children) constitute the unit of the
family, a Nigerian family (family in this regard is the immediate family) often
includes collaterals of the third or fourth degree of relationship. The death of the father
in this regard does not invariably transmit to the mother the responsibility and the care
and maintenance of the child. The fathers brother or other male relation often steps
into his shoes. It will not be fair if the responsibility of the child rest on the uncle
especially when his personal law depends on that of the mother.55

53

Dicey and Morris , The conflict of laws ( 8th ed. 1967) , Rule 6 (3)

54

Enwonwu v Spira (1965) 2 All NLR 233

55

Sec. 2 Fatal Accident Law Cap. 52 Laws Of Eastern Nigeria (1963) Edition

41

It is suggested therefore that an illegitimate child should be presumed to take the

domicile of the head of its family. It should be stressed, however, that this rule is by
no means absolute. It is merely a presumption so that in those cases where a child is
virtually reared and maintained by the mother or her family this presumption may be
rebutted. This suggestion has no other basis than the welfare of the child. It is
therefore the childs welfare that must be given overriding consideration in this regard.
It is however, the exaggerated importance attached to the domicile of origin under the
English law and stands in need of radical modifications in Nigeria. According to this
law, almost overwhelming evidence is required to shake off the domicile of origin. 56Its
character is more enduring, its hold is stronger and less easily shaken off. 57 As put by
Lord WESTBURY
The domicile of origin is the creature of law and is dependent of the will of the
party, it would be inconsistent with the principle on which it is by law created and
ascribed, to suppose that it is capable of being by the act of the party entirely
obliterated and extinguished. It revives and exist wherever there is no other
domicile and does not require to be reacquire or reconstituted animo et facto a
manner which is necessary for the acquisition of a domicile of choice.

56

Udom v Udom (1962) L. L .R 112

57

Winans v Att. Gen (1904) A.C.287 at 290,Per Lord MACNAGHTEN

58

Cheshire: Private International Law (7th Ed) at 164

58

42

Cheshire has suggested that these rules evolve in the nineteenth century when England
was a nation of enterprising pioneers, most of whom regarded their ultimate return
home as a forgone conclusion.59
The revival doctrine (this is done when one abandons his domicile of choice, such
revives back the domicile of origin) as well as the enduring character of domicile of
origin appear to rest on the assumption that a man belongs to his country of origin
much more that to the country of his choice. But this assumption has been dismissed
as archaic and meaningless in an age of migratory population. Perhaps, a better
explanation for the development of rules of domicile of origin in its rigid sense from
the view of Rabel who wrote that;.
The doctrine of domicile of origin was maintained and developed to satisfy the
natural desire of a home country from which innumerable colonizer have gone out
into the world

60

While a person may easily sever his connection with the country of his nationality
(where that is the connecting factor) he remains, for all times, a miserable prey to his
domicile of origin.61 Undoubtedly, the revival doctrine of domicile of origin runs

59

Wolff: m, Private International Law (2nd Ed 1950)p.109

60

Rabel: E, The Conflict of Laws : A Comparative study ( 2nd Ed.1958) vol 1, p.165

61

Cheshire: Private International Law (7th Ed)at 165, the domicile of origin transcends even nationality
instability and permanence.

43

counter to the fundamental principle of domicile as it may located a persons domicile

in a country which cannot be regarded as his home by any stretch of the imagination.
The rule of domicile of origin might have been good law in an era where families were
born and when they lived and died in the same community and when the ties, both
material and sentimental, which bind one to his birth place were strong.62 But under
the present political arrangement in Nigeria where state boundaries bear little relation
to ethnic loyalty, to adopt such rules will be socially undesirable if not legally
embarrassing. Moreover the mobility of society generally has provoked, even in
England, an almost unanimous critism of this rule and the recommendation for its
change. Indeed the English rules of domicile of origin have found a place in American
law.63

3.2.0: DOMICILE OF CHOICE

Any person who is not dependent on another (i.e. one who is not a child or a mentally
disordered person) can acquire a domicile of choice or may change his domicile by
taking up residence in another country with the intention of remaining there
permanently64.

62

Goodrich and Scoles: Conflict of Laws (1964) 39

63

Beale, Treatise on the conflict of Laws (1935) at pp. 184-185

64

Ibid at 17

44

The two requisite here is residence and intention and they are normally referred to as
factum and animus respectively. It is not essential that the factum and animus
should come in any particular order so long as it comes at a point in time. These two
factors must coincide before the law will recognize a change of domicile. Residence
however long in a country will not result in the acquisition of domicile of choice, if the
necessary intention is lacking.65 Conversely intention however strong to change a
domicile will not have the result if the necessary residence in the new country is
lacking. A new domicile is not acquired until there is not only a fixed intention
establishing a permanent residence in the new country, but until also this intention has
been carried out by actual residence there.66 Hence, a domicile cannot be acquired in
itinere,67 it is necessary not only to travel, but to arrive.
It is very difficult to keep the two requirements of residence and intention watertight
compartments, but in the nearest of clarity of exposition they must be considered
separately. However, residence and intention are separate but interrelated concepts.

65

Jopp v Wood (1865) 4 D.J & S.616: Winans v Att. Gen.(1904)A.C.287

66

Bell v Kennedy (1868) L .R 1 Sc & div, 307,319 Per Lord Chelmsford

67

Ibid at 454.

45

3.2.1.0: RESIDENCE (FACTUM)

Residence in a country for the purposes of the law of domicile is physical presence in
that country as an habitant of it.68
In one case a taxpayer who spent ten to twelve weeks each year in Quebec for the
purpose of maintaining her links with that province with a view ultimately to returning
to live was held not to be a resident of Quebec during her presence there since she was
not there as an inhabitant.
Normally, though, the requirement of residence is easy to establish. Residence is a
fact, though a necessary one, from which intention may be inferred. Older cases
adopted a presumption in favour of domicile which grew in strength with the length of
residence and was so hard to rebut. However, more recent cases, including House of
the Lords authorities have attached less weight to the length of residence, and have
taken the view that, although a material consideration, it is rarely decisive.
Whatever weight is given to the length of residence it is undeniable that time is not the
sole criterion of domicile.69 Both long residence and short residence does not
constitute negative domicile everything depends on the attendant circumstances, for
they alone disclose the nature of the persons presence in a country. In short, the

68

IRC v Duchess of Portland (1982)Ch 314 at 318-319

69

Hodgson v De Beauchesne (1858) 12 Mco PCC 285 at 329, 330

46

residence must answer a qualitative as well as a quantitative test.70 Thus in Jopp v

Wood71 it was held that a residence of twenty- five years in India did not suffice to
give a certain John Smith an Indian domicile because of his alleged intention
ultimately to return to Scotland, the land of his birth. Again in IRC v Bullock72 a
Canadian who had a domicile of origin in Nova Scotia was held not to have become
domicile in England, despite the fact that he had either serve in RAF or lived in
England for over forty years. He retained his domicile in Nova Scotia because he
intended to return there, should his wife predecease him.
Conversely, brevity of residence is no obstacle to the acquisition of a domicile if the
necessary intention exists. If a man clearly intends to live in another country
permanently, as for example, where an emigrant, having wound up his affairs in the
country of his origin, flies off with his wife and family to Australia, his mere arrival
there will satisfy the element of residence.73
A striking example of this truth occurred in America: where a man abandoned his
home in State X and took his family to a house in state Y, about half a mile from X,
intending to live there permanently. Having deposited belongings there, he and his

70

Bowie (or Ramsay) v Liverpool Royal Infirmary (1930) AC 588 at 598

71

(1865) 4 De GJ & Sm 616

72

(1976) 3 All ER 353, (1976) 1 WLR 1178

73

Hodgson v De Beauchesne(1858) 12 Moo PCC 285 at 329, 330

47

family returned to X, in order to spend the night with a relative. He fell ill and died
there. It was held that his domicile at death was in Y.74
It is possible for a person to be resident in several countries at the same time. In such a
case only the dual or multiple residence of domicile of choice can be acquire in a
country if this can be shown, to be chief residence. This was established in Plummer
v IRC.75The tax payer had an English domicile of origin, she spent the majority of
each year in England, where she was being educated. However, she spent more than
three month of each year in Guernsey, which had become her family home.
HOFFMAN.J. held that, despite the taxpayer retention of a residence in England, her
domicile of origin, she could acquire a domicile of choice in Guernsey. If she could
show that this was her chief residence. This she was unable to do because she had
not yet settle in Guernsey. Accordingly she retained her English domicile. This case
could, though, have been decided on the much simpler ground that she lacked the
requisite of intention of acquisitions of a Guernsey domicile of choice.76It seems better
to regard question of this sort, as to the quality of residence, as primarily relevant in
considering whether the propositus has the animus menendi, the intention of
permanent or indefinite residence. However, problem in relation to residence will

74

White v Tennant 31 W Va 790, 8 SE 596 (1888).

75

(1988) 1 All ER 97, (1988) 1 WLR 292:

76

Fentiman (1991) CL.J 445

48

disappear if the law commissions proposal, that residence be replace by simpler

concept of presence, is adopted.77

3.2.1.1: THE REQUISITE INTENTION (ANIMUS)

An intention to reside permanently or for an unlimited time in a particular country is
required for the acquisition of domicile of choice. This may however not pose any
difficulty as the word permanently is used in its ordinary meaning as signifying the
opposite of temporary. The word ;permanent aaccording to the Shorter Oxford
English Dictionary means lasting or designed to last indefinitely without change,
and this indeed is the definition that most of the judges have recognized when require
to consider the nature of intention necessary for a change of domicile. In Udny v
Udny,78 for instance, Lord WESTBURY described the intention as being one to reside
for an unlimited time. A more modern statement to the same effect is that of
SCARMAN J,79 who referred to an intention to reside indefinitely.
The essence, therefore of these and many other similar statements is that the intended
residence must not be for a limited period, whether the limitation is expressed in term
of time or made dependent on the occurrence of a contingency (i.e. a possible but

77
78
79

Law Com No 168 (1987) Scot, Law Com No 107 (1981), Para 5,7
(1869) L.R 1 Sc & Div 441 at 458
Re Fulds Estate (No 3) (1968) p 615 at 684

49

unpredictable future event), such as the accomplishment of a definite task, that will
occur if at all during the life of the propositus.
It is also clear that a conditional intention will not suffice. Thus in Crammer v
Crammer,80 a woman with a French domicile

of origin who came to England

intending to remain there and marry an Englishman, who was already married, did not
acquire an English domicile of choice. Her intention to remain was conditional on
both herself and her proposed husband obtaining divorces or their relationship
continuing. It would, no doubt, have been different if she had intended to remain there
without a condition, but this was not her intention.
In cases where the termination of residence is dependent on the occurrence of a
contingency(i. e, a possible but unpredicted future event) this will not prevent the
acquisition of a domicile unless the contingency is itself unambiguous and realistic, in
the world of SCARMAN J: If a man intends to return to the land of his birth upon a
clearly foreseen and reasonable anticipated contingency, e.g. the end of his job the
intention require by law is lacking; but, if he has in mind only a vague possibility,
such as making a fortune (a modern example might be winning a football
pool)such a state of mind is consistent with the intention require by law.
Subsequently, a distinction has been drawn between the question of whether a

80

(1987) 1 FLR 116

50

contingency itself is clear and the question of whether a contingency which is clear
will happen.81
If a contingency is not sufficiently clear to be identified then it cannot operate to
prevent the acquisition of a domicile of choice. Thus in Re Furse82 evidence that the
propositus, who had a Rhode Island domicile of origin would leave England, where he
had lived for nearly forty years, if he was no longer able to live an active physical life
on his farm was not fatal to a change of domicile, and it was held that the propositus
had acquired an English domicile of choice.
On the other hand, if the contingency can be identified, it has to be asked whether
there is a substantial possibility of the contingency happening; if there is , this will
prevent the acquisition of domicile of choice. Thus in IRC v Bullock,83 where a
husband intended to return to Canada to live permanently if his wife predeceased him,
it was held that the husband did not acquire the English domicile of choice, since there
was a real possibility, in view of their ages, of this happening. Of course, if there is no
substantial possibility of a contingency happening the evidence showing a desire to
leave the residence will not prevent the acquisition of the domicile of choice.84

81

IRC v Bullock (1967) 1 WLR 1178 at 1186

82

(1980) 3 All ER 838

83

(1976) 1 WLR 1178

84

Pletinka v Pletinka (1965) 109 Sol Jo 72

51

The former attitude towards contingencies was criticized in Winans v A-G, Ramsay v
Liverpool Royal Infirmary85. That a contingency must be something more than a
vague possibility if it is to prevent the acquisition of a domicile in the country of
residence has not been invariably accepted by the courts. It has several times been
affirmed, and more than once by the House of the Lords, that the present residence of
a man is not to be equated with domicile if he contemplates some remote or uncertain
event, whose occurrence at some indeterminate time in the future might cause him to
leave his country of residence. If this possibility is to present to his mind, even an
intention to reside indefinitely in the country is said to be ineffective. 86 This view
appears to equate the word permanent with perpetual, and to require for a change
of domicile an irrevocable intention never to abandon the present place of domicile.
Yet it is no part of the law that the intention to maintain the residence should be
irrevocable,87 for such a requirement would actually exclude the acquisition of a
domicile of choice.88Nevertheless, in Winans v A-G89 and Ramsay v Liverpool
Royal Infirmary,90 the house of Lords came very near to regarding a vague

85

Ibid at 300

86

Moorhouse v Lord (1863) 10 HL Cas 27 at 285-186

87

Gulbenkian v Gulbenkian (1937) 4 All ER 618 at 612

88

A -G v Pottinger (1861) 30 L J Ex 284 at 292

89

Ibid at 300

90

Ibid at 598

52

possibility as if were to cite the word of SCARMAN J. again, a clearly foreseen and
reasonable anticipated contingency. The facts of the former case were these:
Winans was born in 1823 in the United State, where he was continuously engage in
his fathers business until 1850. From 1850 to 1859 he resided in Russia. He married a
British subject and appears never to have set foot again in the USA. In 1859 he
showed signs of consumption and being advised by the doctors to winter in Brighton
in England, he reluctantly took rooms at a hotel there, and in 1860 leased two
adjourning houses. He still held these houses at the time of his death. From 1860 to
1893 he spent time each year in England but also in Scotland, Germany or Russia.
From 1893 until he died in 1897 he lived entirely in England. Estate duty was paid on
English fortune of over two million pounds, but the crown now claimed legacy duty
on a comparatively small amount of property abroad. Such duty was payable only if he
had acquired an English domiciles at the time of his death.91
The fact that he had resided principally in England for the last thirty-seven years of his
life raised a very strong presumption in favour of an English domiciles, but there was
no direct evidence as to what his intention was analysed by LORD MACNAGHTEN
with some particularly the hope, projects and daily habits of Mr. Winans. He found
that, in addition to the care of his health. Mr. Winans had two objects in life. The first
was the construction in Baltimore of a large fleet of spindle-shape vessels, which
91

Ibid at 290

53

would give America superiority at sea over Britain. The second object was to develop
a large property of about 200 acres in Baltimore. On this, wharves and docks were to
be constructed for the spindle-shaped vessels, and a large house built in which Mr.
Winans intended to live in order that he might take personal command of the whole
undertaking. He succeeded in getting control of the property only at the very end of
his, and at the time of his death he was working day and night on the scheme.
LORD MACNAGHTEN reached the conclusion that the domicile of origin in New
Jersey had not been lost. He said that up to the very last he had an expectation or
hope of returning to America and seeing his grand scheme inaugurated.92 LORD
HALSBURY found it impossible to infer from the evidence what Mr. Winans
intention was, and he held therefore that the crown had not discharged its duty of
proving a change in domiciles. LORD LINDLEY vigorously dissented. In his view
Winans had given up all serious idea of returning to America.93
In Bowie (or Ramsay) v Liverpool Royal Infirmary,94 one George Bowie, who had
left a will that was formally valid if his domiciles at death was Scottish but invalid if it
was English. The story of his life was uneventful. He was born in Glasgow in 1845
with a Scottish domicile of origin. He gave up his employment as a commercial
traveller at the age of thirty-seven and refused to do any more work during the
92

Ibid at 298

93

Ibid at 300

94

Ibid at 588

54

remaining forty-five years of his life, but even idle must be fed, and after residing with
his mother and sister in Glasgow, he moved his residence to Liverpool in 1982 in
order to live on the bounty of his brother. At first he lived in lodgings, but moved to
his brothers house when the latter died twenty-one years later and resided there with
his sole surviving sister until she died in 1920. He remained there until his own death
in 1927. Thus George lived in England for the last thirty-six years of his life. During
that time he left the country only twice, once on a short visit to the USA, on the
second occasion to take a holiday in the Isle of man. Though he often said he was
proud to be a Glasgow man, he resolutely refused in several occasion to return to
Scotland, even for the purpose of attending his mothers funeral. On the contrary, he
had expressed his determination never to set his foot in Glasgow again and had
arranged for his own burial in Liverpool. Thus evidence was completely lacking of
any inclination, either by words or actions, to disturb a long and practically interrupted
residence in England nevertheless, the House of Lords held unanimously that George
died domiciled in Scotland. Their Lordships denied that his prolong residence
disclosed an intention to choose England as his permanent home rather they inferred
that had his English source of supply failed, he would have retreated Glasgow.
It would, however be a mistake to exaggerate the importance of judicial
pronouncements or decisions which on the surface appear to distort the character of
the intention that is necessary for the acquisition of domicile. SCARMAN J. has
55

stressed that the difficulty in reconciling the numerous statements arises not from
clarity of judicial thought, but from the nature of the subject. The cases involved a
detailed examination of the facts and it is not surprising that different factual situations
have chosen different language to describe the law.95 SCARMAN J. would regard the
difference between the statements of judges in earlier cases as showing a difference of
emphasis and therefore as being of no great moment.
It may well be, then, that to construct a formula which describes the precise intention
required by English law for the acquisition of a domicile of choice is an impossibility,
but perhaps the most satisfactory definition was that offered a hundred years ago by
KINDERSLEY V-C:That place is properly the domicile of a person in which he has
voluntary fixed the habitation of himself and his family, not for mere temporary
purpose, but with a present intention of making it his permanent home, unless and
until something (which is unexpected of the happening of which is uncertain) shall
occur to induce him to adopt some other permanent home.96
There is a time at which intention is relevant. The traditional statement that there must
be at present intention of permanent residence merely means that so far as the mind of
the person at the relevant time was concerned he possessed the requisite intention. The
relevant time varies with the nature of inquiry. It may be past or present. If, for

95

Re Fulds Estate (No 3 ) (1968 ) P 675 at 682 - 683

96

Lord v Calvin (1859) 4 Drew 366 at 376

56

example, the inquiry relate to a domicile of inquiry of a deceased person. It must be

ascertained whether at some period in his life he had formed and retained a fixed and
settled intention of residence in a given country. Once this is established, evidence of
his subsequent fluctuations of opinion whether he would or would not will be
ignored.97
There is evidence of intention i.e. intention needs to be proved. Most disputes as to
domicile turn on the question whether the necessary intention is accompanied with
residence, and this question often involves very complex and intricate issues of fact.
This is because there is no act, no circumstance in a mans life, however trivial it may
be in itself, which ought to be left out of consideration in trying the question whether
there was an intention to change the domicile. A trivial act might possibly be weightier
with regard to determining this question than an act which was of more importance to
a man in his lifetime.98
It is impossible to lay down any positive rule with respect to the evidence necessary to
prove intention. All that can be said is that every conceivable event and incident in a
mans life is a relevant and an admissible indication of his state of mind. It may be
necessary to examine the history of his life with the most scrupulous care, and to
resort even to hearsay evidence where the question concerns the domicile of a person,

97

Re Marrett, Chalmers v Wingfield (1887) 36 Ch D 400

98

Drevon v Drevon (1864) 34 L.J. Ch.129, 133,Per Kindersley V- C.

57

now deceased, possessed in his lifetime.99Nothing must be overlooked that might

possibly show the place which he regarded as his permanent home at the relevant time.
No fact is too trivial to merit consideration. Indeed, one of the defects of English law
is that the evidence adduced in a disputed case of domicile is often both voluminous
and difficult to assess. This is due to the over- scrupulous manner the courts attempt to
discover a mans exact intention. The tendency is to investigate his actual state of
mind, rather than to rest content with the natural inference of his long continued
residence in a given country. This, indeed, is to set sail on an uncharted sea. Nothing
must be neglected that can possibly indicate the bent of his residents mind. His
aspirations whims, amours, prejudice, religion, financial expectations all are taken
into account.100
Having regard, therefore, roving commission imposed on the courts, it is not
surprising that their decisions exhibit a multiplicity of different factors that have been
regarded as indicia of intention. Without attempting to give an exhaustive list, it may
be useful to observe that at one time or another the following have been regarded as
relevant criteria of intent: naturalization, retention of citizenship, purchases of a house,
or of a burial ground, the exercise of political rights, the establishment of children in
business, the statutory declaration made by a candidate for naturalization that he

99

Scappaticci v A-G (1955) P 47,(1955) 1 All ER 193n

100

Casdagli v Casdgli (1919) AC 145 at 178

58

intends to reside permanently in the United Kingdom, the where a mans wife and his
family reside, departure from a country owing to compulsion of war, the refusal of a
foreign fianc to leave her own country, statements as his domiciliary intentions made
by a deceased person in his lifetime, the effect of the radical intolerance on
domiciliary intention, and the fact that a family is split between England and
abroad.101
Undue stress must not be laid on any single fact, however impressive it may appear
when viewed out of its context, for its importance as a determining factor may well be
minimized when considered in the light of other qualifying events. Again, no one fact
is of constant value, for every case varies in its circumstances and what is of decisive
importance in one may be of little weight in another.102
It is for this reason that it is impossible to formulate a rule specifying the weight to be
given to particular evidence. All that can be gathered from the authorities in this
respect is that more reliance is placed on conduct than on declarations of intention,
especially if they are oral. Nevertheless, the common law rule, that expression of
intention by a living person cannot be received in evidence unless against his own
interest, is not applicable in an issue of domicile, and it is common enough for witness
to testify to parol declarations made during his life by the person whose domicile is in

101
102

Begum v Entry Clearance Officer, Dacca (1983) Imm AR 163

Hodgson v De Beauchesne (supra)

59

question. This kind of evidence, however, especially when given long after the
conversation occurred, is suspect, for witness may lie or forget. Declarations should
contain a real expression of intention for it only too frequently happens that they
cannot be taken at their fact value. They may be interested in statements designed to
flatter or to deceive the hearer, they may represent nothing more than vain
expectations unlikely to be fulfilled, and the very facility with which they can be made
require their sincerity to be manifested by some active step taken in furtherance of the
expressed intention. The circumstance in which the statement is made needs to be
considered and any declaration must be backed up by conduct consistent with the
declared intention.
Even lower in the scale of values is evidence given in the course of the trial by the
person himself not of his past declarations, but of his past intention. This must be
accepted with very considerable reserve, for on such personal issue as his own place of
domicile he is under a bias that is likely to influence his mind, perhaps even his
veracity.103
In at least two respects, motive in the sense of the antecedent desire that determines
the will to act is one of the indicia of the intention requisite for the acquisition of a
domicile of choice. First it may throw light on the question whether the removal to

103

Ibid , but in Brown v Brown(1982) 3 FLR 212 at214 -215 where the declaration was consistence

with conduct.

60

another country was intended to be permanent. It will serve, for instance, to contrast
the case of a man who flees to England to escape political persecution in his own
country with that of retired officer who goes to Jersey to avoid heavy taxation.
Secondly, it may provide a means of testing the sincerity of a declaration of intention.
Thus if a widower testifies that at the time of his wifes death he and his wife regarded
Scotland as their permanent home, the fact that Scotlands law he is entitled to onehalf of his wifes property may make his testimony a little suspect.104
It is important to realize that the only intention relevant to a change of domicile is an
intention to settle permanently in a country. This will effect a change of domicile even
if the propositus intended to retain his former personal law. 105 One of the legal
consequences of an intention to settle in country X is that the person in question
becomes subject to the law of X whether this is his wish or not. It is inevitable effect
to his residence in that country couples with his intention to remain there without any
limit of time106. Thus in Re Steer107 An English man, having taken up his residence in
Hamburg with the intention of settling there for good, remained there until his death
some fifty years later. On the occasion, when he came to England for a temporary
purpose, he made a Will in which he declared that though he intended to return to
104

Cf Re Craignish (1892) 3 Ch 180.

105

Douglas v Douglas (1871) LR 12 Eq 617 at 644, 645.

106

Re Craignish (1892) 3 Ch 180 at 188, 189.

107

(1858) 3 H & N 594.

61

Hamburg it was not his intention to renounce his English domicile of origin. It was
held that this declaration which suggested a desire to have two simultaneous
domiciles, could not nullify the consequences of having in fact acquire a German
domicile.

3.2.1.2: SPECIAL CASES IN ACQUISITION OF DOMICILE OF CHOICE

In order that a person may acquire a domicile of choice, it has been said that there
must be a residence free chosen, and prescribed or dictated by any external necessity,
such as the duties of offices the demands of creditors or the relief from illnesses108.
This is a somewhat misleading statement. It certainly does not mean that only a person
able to exercise the most perfect freedom of choice can acquire a domicile of choice,
for it did, the acquisition of a domicile of choice would be a rare event. What it does
means can only be elucidated by examining a number of a special cases. These are;
person liable to deportation; fugitives from justice; refuges; invalids; member of the
armed forces; employees; and diplomats.

Persons liable to deportation: A person who resides in a country from which he is

liable to be deported may lack the necessary intention because his residence is
precarious. But if in fact the forms the necessary intention, he acquires a domicile of

108

Ibid at 458

62

choice.109Once such a person has acquired a domicile of choice he does not lose it
merely because a deportation order has been made against him. He only loses it when
he is actually deported and can no longer be said to have an intention to return as a
lawful resident.

Fugitives from justice: A person, who leaves a country as a fugitive from criminal
justice, or in order to evade his creditors, has a special motive for leaving it, but no
special motive for living in any other country. In the case of a fugitive from justice,
the intention to abandon his previous domicile will readily be inferred, unless perhaps
the punishment which he seeks to avoid is trivial, or by the law of that country a
relatively short period of prescription bars liability to punishment. In Re Martin,110 a
French professor committed a crime in France in connection with professorship and
fled to England, where he remained for the next twenty years. Two years after the
French period of prescription had expired he returned to France. The court of Appeal
by a majority held that he had an English domicile six years after his arrival in
England.

109

Boldrini v Boldrini (1932) P. 9

110

(1900) P. 211

63

Similarly, a person who leaves a country in order to evade his creditors may lose a
domicile there; but if he plans to return as soon as he has paid or otherwise got rid of
his debts, there is no change of domicile.111

Refugees: If a political refugee intends to return to the country from which he has fled
as soon as the political situation changes, he retains his domicile there; but if his
intention was not to live that country even when the political situation has changed, he
can acquire a domicile of choice in the country to which he has fled. Thus in Re Lloyd
Evans112 an Englishman with a Belgian domicile of choice returned to England very
reluctantly in June 1940 because of the German invasion, and lived in furnished flat in
England until he died in 1944. He always intended to return to Belgium after the war.
It was held that he retained his Belgian domicile. On the other hand, in May v May113
a Jew fled from Germany to England in 1938 to escape persecution by the Nazis. He
originally intended to emigrate to the United States, but his hope of doing so was
frustrated by the outbreak of war in 1930. In 1914 the idea of going to the United
States gradually faded from his mind. He declared that he would never return to
Germany even if the Nazis were overthrown. It was held that he had acquired an
English domicile of choice by the beginning of 1942.

111

Re Wrights Trusts (1856) 2 K & J.

112

(1947) Ch. 695

113

(1943) 2 All E.R. 146.

64

Invalids: If a person changes his residence for the sake of health, does he change his
domicile? Different judges have given different answers to this questions. Since illness
vary greatly in intensity, no general rule can be laid down. Each cases turn on its own
facts. A person who goes to a country for a temporary purpose of undergoing medical
treatment there clearly lacks the necessary intention for a change of domicile. So does
a person who is mortally ill and decides to move to a country to alleviate his last
sufferings. On the other hand, a person who moves to a new country because he
believes that he will enjoy better health there may well intend to live there
permanently or indefinitely, but of course he does not necessarily have this intention.
In Hoskins v Matthews,114a man whose domicile of origin was English went to
Florence at the age of sixty, and lived there except for three of four months in each
year in a villa that he had bought until he died twelve year later. He was suffering
from an inquiry to the spine and left England solely because he thought that the
warmer climate of Italy would benefit his health. His housekeeper deposed that he
would have retuned to England if he had been restored to health. Nevertheless, it was
held that he had acquired a domicile in Tuscany, because he was exercising a
preference and not acting upon necessity. On the other hand, in Re James115 a man
with an English domicile of origin went to South Africa in 1891 when he was thirty-

114

(1855) 8 D. M. & G. 13

115

(1908) 98 L.T. 438.

65

eight, obtained employment there, and lived there in apartments until he died in 1905.
He went to South Africa because his doctor advised him that he was not likely to live
long if he remained in Wales. Just before he left Wales he said he would never return
except for a short time. He did return for six weeks in 1902, but on leaving again he
said he would never return as the climate did not suit him; and that he enjoyed better
health in South Africa than he ever had in Wales on the other hand, he continued to
own a small farm in Wales until his death. It was held that he died domiciled in
England.

Members of the armed forces: It was at one time supposed that a member of the armed
forces, whether British or foreign, could not as a matter of law acquire a domicile of
choice during his service, because he was bound to obey orders and go where he was
sent by his superiors. But now it is clear that a member of the armed forced can,
during service, acquire a domicile of choice in the country in which he is stationed or
elsewhere, provided he has established the necessary residence and formed the
necessary intention. But in the great majority of cases he does not intend to makes his
permanent home where he is stationed, and retains the domicile which he had on
entering service116.

Employees: A person who goes to a country in pursuance of a contact of service is in

position similar to that of a member of the armed forces in that his residence or for a
116

Donaldson v Donaldson (1949) P. 363

66

limited time. On the other hand an employee can more easily gives up his employment
than a member of the armed forces can. The question whether an employee who is
sent to a country intends to reside there permanently or indefinitely remains in the last
resort a question of fact. There is, for the purpose, no distinction between public
servants and other employees. If such persons go to a country for the temporary
purposes of performing the duties of their office or employment, they do not acquire a
domicile of choice there, but if they go not merely to work but also to settle, they do
acquire domicile of choice. This in Att. Gen v Rowe117 an English barrister was
appointed chief Justice of Ceylon. His intention was to hold this office until he had
earned his pension and then return to England. It was held that he retained his English
domicile. On the other hand, in Gunn v Gunn118 a man with a domicile of origin in
Manitoba was employed by a corporation owning a chain in cinema in Saskatchewan.
He moved to Saskatchewan with the intention of residing there for an indefinite
period. It was held that he acquire domicile of choice in Saskatchewan.

Diplomats: Diplomats are simply a special category of public servants and the same
principles apply to them. It is a question of fact whether they intend to reside
permanently or indefinitely in the country to which they are accredited. Generally, of
course, they form no such intention, but occasionally they may do so and thus acquire

117

(1862) 1 H & C 31

118

(1956) 2 D .L. D

67

a domicile of choice in a country, he does not lose it merely by reason of being

appointed to a diplomatic post in that country.119

3.2.1.3: LOSS OF DOMICILE OF CHOICE

A domicile of choice is said to be lost when both the residence and intention, which
must exist for its acquisition are given up. This is not lost by given up residence and
intention only, neither is it necessary to prove a positive intention not to return. It is
sufficient to prove merely the absence of intention to continue to reside.120

3.3.0: DOMICILE OF ORIGIN AND CHOICE CONTRASTED

As compared with the views held in civil law countries, in the USA, in New Zealand
and Australia121, the domicile of origin is regarded by the present English law as
fundamentally different from a domicile of choice. It differs in its character, in the
conditions necessary for its abandonment and in its capacity for revival. These is
categorized into two

TENACITY OF THE DOMICILE OF ORIGIN

There is the strongest possible presumption in favour of the continuance of a domicile
of origin. As contrasted with a domicile of choice, it has been said by LORD
119

An instance is afforded by Naville v Naville(1957) (1) S.A. 280

120

Re Flynn (No 1) (1968) 1 W. L. R. 103, 113-115

121

New Zealand Domicile Act 1976 and the Australian Domicile Acts 1982; Nygh, pp 177- 178

68

MACNAGHTEN that its character is more enduring, its hold stronger and less easily
shaken off122. In fact decision such as Winans v A-G123 and Ramsay v Liverpool
Royal Infirmary

124

warrant the conclusion that almost overwhelming evidence is

require to shake it off. In the latter of these cases evidence was completely lacking of
the slightest indication, either by words or actions, that George Bowie intended to live
anywhere else than in England. Yet it was held that the tenacity of his Scottish
domicile of origin had not yielded. Also in Cramer v Cramer Stephen BROWN and
BALCOMBE LJJ held that the burden of proving a change of domicile from one of
origin to one of choice was a heavy one.125

ABANDONMENT OF AN EXISTING DOMICILE.

Since a domicile of choice is voluntarily acquire if there is the requisite intention and
residence, so it is extinguishable in the same manner, i.e. merely by a removal from
the country with an intention not to return and even without acquiring a fresh
domicile126. In case of dual or multiple residence what is necessary is that the country
ceases to be the chief residence with presumably an intention not to reside there as the
chief residence. The only distinction between acquisition and abandonment is that the

122

Ibid at 290

123

Ibid at 290

124

Ibid at 558

125

(1987) 1 FLR 116 and (1982) 3 FLR 212

126

Tee v Tee (1947) 1 WLR 213 at 215

69

latter requires less evidence than the former. There cannot be abandonment by
intention alone.
But it has been objected by MEGGARY J, obiter, that to require proof of an intention
not to return is too rigorous a test, since it denies effect to a departure from a country
without an intention of returning. In his view, it is unnecessary to prove a positive
intention not to return, since the merely negative absence of any intention127, to
resume the residence will suffice of effect an abandonment of the domicile.
It is submitted that this suggested distinction between an intention not to return and the
absence of an intention to return is fallacious. The difference between the two variants
of intention is not obvious, but presumably the absence of an intention not to return
can only mean that at the time of departure the person in question has not decided
whether to return or not . if this is the state of his mind, the result in law is that his
mind domicile is unchanged. In other words, it would seem clear on the authorities
that there must always be a positive intention not to return before it can be said that a
domicile of choice has been lost. But the identification of a persons domicile is
always inferred from his conduct together with his declarations, if any, and at the time
when the question falls to be determined the inference from the evidence may well be
that what began as indecision has been gradually transformed into a definite resolve
not to return.
127

Ibid at 113

70

But the domicile of origin on the other hand, which in its inceptionn is not a matter of
free will but is communicated to a person by operation of law; is not extinguished by
mere removal with an intention not to return. It cannot be lost by mere abandonment.
It endures until supplanted by a fresh domicile of choice. Bell v Kennedy128 is the
leading authority for this rule,
The domicile of origin of Bell was in Jamaica, where he had been born of Scottish
parents domiciled in that Island. He was educated in Scotland but returned to Jamaica
after reaching his majority. Some fourteen years later, in 1837, he left the Island
without any intention of returning, resided with his mother-in-law in Scotland, and
occupied himself in looking for an estate in that country on which to settle down. He
had not been successful in this when his wife died in 1838, but after her death he
bought an estate and it was admitted that at the time of the trial he had acquired a
Scottish domicile. The question for decision, however, was what his domicile was at
the time of his wifes death? It was held that his domicile at the moment was in
Jamaica. Although he abandoned the Island for good in 1837 and was resident in
Scotland, he had not at that time decided to make his permanent residence there. The
evidence showed that in 1838 his mind was vacillating with regard to his future home.
Therefore, since he had not acquired a Scottish domicile of choice, he retained his
domicile of origin.
128

(1868) LR 1 Sc & Div 307

71

A modern instance of removal from the domicile of origin with an intention to return
is Brown v Brown129. In this case there was evidence of willingness by the court to
infer the intention necessary for the acquisition of a domicile of choice, on the bases
that the person in question, who work for a multinational oil company had severe his
links with his domicile of origin in United State and the nature of his work make him
had opportunity for the acquisition of a new domicile abroad.
There is also what is called the revival of domicile(i.e revival doctrine as mentioned
above) in that the domicile of origin, in the rule of English law in that it is merely
place in abeyance for the time been. It remains in the background ever ready to revive
and to fasting upon the propositus immediately he abandon his domicile of choice130.
The position, may be illustrated by an example based on the hypothesis that George
Bowie, whose case was decided in Ramsey v Liverpool Royal infirmary131, had
married after his arrival in England and that a son, X had been to him in these
circumstances Xs domicile of origin Scottish since at his birth his father was domicile
in Scotland. An illustration is now given where at the age of 22 X, who has developed
a strong dislike for the United Kingdom, leaves the country determined never to set
foot here again. He acquires domicile of choice in Peru. After residing there for forty
years, in the course of which he has amassed a fortune, he leaves the country for good
129

(1982) 3 FLR 212,Cf Vien Estate v Vien Estate (1988) 49 DLR (4th) 558.

130

Ibid at 458

131

Ibid at 558

72

and takes up his temporary residence in New York, being undecided whether to settle
permanently in Virginia or California. The result is that immediately on his departure
from Peru his Peruvian domicile ceases abruptly, but his Scotlands domicile of origin
revives and remains attached to him until he has in fact acquired a domicile of choice
in some other country. It is clear that during his period of indecision in New York
there must be some personal law applicable to him. This might be either Peruvian or
Scottish law. In the United States of America, where revival doctrine is not
accepted132, it would be the law of Peru. According to Lord chancellor HATHERLEY,
however, to admit this is to be absurdity of asserting a person to be domiciled in a
country which he has resolutely forsaken and cast off, simply because he may perhaps
for years be deliberating before he settles himself elsewhere.
Yet certain doubts suggest themselves. Is it so absurd to prefer the law under which
the man has recently been living, perhaps for a prolonged period? Are the claims of
the law which is imposed on him at birth, independently of his volition, superior to
that which he has voluntarily chosen and long retained? At any rate the advantages of
preferring the domicile of origin in the case of our hypothetical X are not particularly
conspicuous. The country that determines his personal law is one that he has never
visited and for which he feels repugnance. Nevertheless, if he wishes to marry, his
capacity will be determined by reference to the law of Scotland. If he dies intestate
132

Re Jones Estate (1921) 192 Iowa 78, 182 NW 227.

73

leaving movables in England, they will be disturbed according to Scotlands law and
United Kingdom inheritance tax will be payable. These illustrations, which could be
multiplied, provoke the thought that the virtues of the doctrine of revival are not so
obvious as appeared to the mid-Victorian judges. The doctrine of revival has in fact
been rejected in New Zealand133 and in Australia

134

and its rejection in the United

Kingdom has been proposed by the law commission.

3.4.0: CHANGE OF DOMICILE AND NATIONALITY

It is importantt to emphasise that nationality and domicile are two different
conceptions and that a man may change the latter without divesting himself of his
nationality135. An Englishman may remain an Englishman in the sense that his
allegiance renders him subject to certain duties to the crown, and yet he may so
change his residence that many of his legal rights and obligations will be determinable
by a foreign system of law, as being the law of his domicile. The mere fact that an
alien living in England under a certificate of registration is liable to deportation for
misbehavior or has even been recommended for deportation does not prevent him

133

Domicile Act 1976, s 11. Webb (1977) 26 ICLQ 194

134

Domicile Acts 1982, s 7

135

Bradfield v Swanton (1931) IR 446; also a discussion By Westlake in Private International Law(7th

edn) pp 348-354

74

from acquiring an English domicile of choice136, or deprive him of a domicile already

acquired. Indeed, a domicile of choice may even continue after deportation if re-entry
is lawful137. Neither the permissive nor the precarious character of his residence
nullifies his intention to settle in England. Although it has been held in Canada, that an
illegal immigrant may acquire a domicile of choice in the country which he has
entered illegally, the predominant view which has been accepted in England138 is that
no domicile of choice can be acquired in defiance of the laws of the country entered.

3.5.0: CONCLUSION
It should be borne in mind that the acquisition of domicile as contained in the English
law is being adopted in Nigeria though Nigeria has little issues on domicile. Moreover,
in so far as matter governed by the lex domicili (law of domicile) is concerned, the
state laws are broadly similar. It follows therefore that a change of domicile of origin
or choice, from one state to another does not entail serious or far reaching
consequences as to require very strong evidence

as claimed by the court. It is

therefore suggested that an existing domicile (whether of origin or choice) should

continue until another is acquired and that the same evidence required for the

136

May v May (1943) 169 LT 42

137

Thiele v Thiele (1920) 150 LT Jo 387 and Dicey & Morris, p 142

138

Puttick v A-G (1980) Fam 1

75

abandonment of domicile of choice should be sufficient for the abandonment of

domicile of origin.139

139

Agbede. I. O. Personal law and personal system of law : Synthesis or Symbolisms

76

CHAPTER 4
DOMICILE OF DEPENDENT PERSONS
4.0.0: INTRODUCTION
No dependent person can acquire a domicile of choice by his own act. As a general
rule, the domicile of such persons is the same as, and changes with the domicile of the
person (if any) on whom he is legally dependent. The class of dependent persons is
children, women, and persons of unsound mind. This was stream lined by the law of
England on Domicile and and Matrimonial Proceedings Act.140These classes of people
can only acquire domicile based on the act of the person they are dependent upon. All
these shall be dicussed as we proceed in this chapter.

4.1.0: DOMICILE OF CHILDREN

The Common law rules as to the domicile of dependency emphasized the link
between a child and its father, the child was treated as dependent upon the father even
if the parents had separated and the child was living with the mother. Section 4 of the
Domicile and Matrimonial Proceeding Act141 sought to introduce greater flexibility
into the rules as to dependency, enabling the child to be dependent upon the mother in
appropriate circumstances. It provides that the domicile of a dependent child whose
140
141

1974
ibid

77

parents are alive but living apart shall be that of his mother if he has his home with her
and no home with his father, or he has at any time had her domicile by virtue of above
and has not since had a home with his father. Living apart does not imply any
breakdown in the relationship between the parents, who may be living apart because
of the demands of one parents work. Home is also undefined; the home of a preschool child may be more easily identified than that of a young teenager educated at
boarding school. Section 4(3)142 provides that the domicile of a dependent child whose
mother is dead shall be that which she last had before she died if at her death he had
her domicile by virtue of Section 4(2)143 above and he has not since had a home with
his father. The main object of this enactment is to increase the number of cases in
which the domicile of dependency of a child will be that of his mother; previously
existing rules of law to that effect (e.g. those relating to illegitimate children and
legitimate children whose fathers are dead) are expressly preserved by section 4 (4).144
An adopted child is now treated in law as if he had been born to the adopter or
adopters in wedlock. Accordingly the domicile of an adopted child under sixteen will
be determined as if he were the legitimate child of his adopted parent or parents. The
domicile of a legitimate child whose parents are both dead, or of an illegitimate child
whose mother is dead, probably cannot be changed at all.
142

Domicile and Matrimonial Proceeding Act (England)1973

143

ibid

144

ibid

78

When the domicile of a dependent child is change as a result of a change in his

parents domicile or as a result of his legitimation, the new domicile which the child
gets in this way is the domicile of dependency and not a domicile of origin. Hence, it
is not domicile but the one he acquired at birth which will revive if in later life he
abandons one domicile of choice without acquiring another at the same time.. On the
other hand, it would seem to follow from what has been said above about adopted
children that the domicile of origin of an adopted child is deemed to be the domicile of
his adopted parent or parents at the time of his adoption. If this is so, it is the only
example in English law in which a domicile of origin can be changed.

4.2.0: DOMICILE OF MARRIED WOMEN

Until 1974, the rule was that the domicile of a husband was communicated to his wife
immediately on marriage and it was necessarily and inevitably retained by her for the
duration of the marriage. This rule was much criticized as the last barbarous relic of a
wifes servitude145 and was abolished by section 1 of the Domicile and Matrimonial
Proceedings Act.146 The domicile of a married woman as at any time on or after 1st
January 1974 shall, instead of being the same as her husbands by virtue only of
marriage, be ascertained by reference to the same factors as in the case of any other

145

Gray v Formosa (1963) pg 259.267.

146

1973

79

individual capable of having an independent domicile .This means that for all
purposes a married woman is to be treated as capable of acquiring a separate domicile;
though in vast majority of cases she and her husband will, independently, acquire the
same domicile. It is however quite possible for happily married spouses to have
separate domiciles. For example, a person domiciled in New York marries a fellow
domiciled in England, both intending at the end to go live in New York.147
However, before 1974 there was an absolute rule, to which there were exceptions, that
the domicile of a married woman was the same as, and changed with, the domicile of
her husband as discussed above.148 This rule reflected social conditions and attitudes
of past age; it led to serious injustice to wives especially in the matter of divorce
jurisdiction, but it has been abolished in 1974.
Section 1 (1) of the Act is retrospective in the sense that it applies to women married
before as well as after January 1, 1974. Hence, a transitional provision was needed.
Section 1(2) provides that where immediately before that date a woman was married
and then had her husbands domicile by dependence, she is to be treated as retaining
the domicile (as a domicile of choice, if it is not also her domicile of origin) unless and
until it is changed by acquisition of another domicile either on or after that date. Thus,

147

Ibid

148

Ibid

80

in IRC v Duchess of Portland,149 a woman with a domicile of origin in Quebec

married a domiciled Englishman in 1948. She lived with her husband in England but
retained links with Quebec, visiting it for ten to twelve weeks every summer, keeping
a house which she owned there ready for immediate occupation and retaining
Canadian citizenship. She intended to return permanently to Quebec with her husband
when he retired from business, but continued to live in England. It was held that the
effect of section 1 (2) was that she retained her English domicile of dependency as a
domicile of choice. In effect, the pattern of her own life before 1974 was given no
weight. The Law Commission has recommended, in the context of its proposal on
reformulation of the domicile that any person at any date after the enactment of the
new rules should be determined as if those rules had always been in force.150
However, this transitional problems may give rise to a problem similar to one found at
common law when the husband died. Taking an hypothetical case; where H domiciled
in France marries W domiciled in Scotland and they live in England. In 1972, H leaves
W in England and returns to live in France. Where is W domiciled in 1974?
After 1973, W retains Hs domicile in France as if it were a domicile of choice and
this will continue until she utilizes her new capacity to acquire a domicile of choice in
England, where she wishes to remain living. Does she acquire such an English

149

(1982) Ch 314

150

Law of Domicile, para, 8. 7

81

domicile merely by continuing and intending to live permanently in England. On the

analogy of common law decisions involving acquisition of a domicile of choice after
the death of a husband, W immediately acquires an English domicile and no further
act on her part is necessary. Authority for this view can be found in the obiter dicta in
IRC v Duchess of Portland.151

4.3.0: DOMICILE OF PERSONS OF UNSOUND MIND

A person of unsound mind cannot acquire a domicile of choice and as a general rule,
retains the domicile which he had when he became insane.152 Since he cannot exercise
any will, he can neither acquire nor lose a domicile. Nor can his domicile be changed
by the person in charge of him.
Most of the cases which support these statements concerned persons who were
lunatics so found by inquisition. This procedure and the term lunatic are obsolete
in English domestic law, which now make provision for many kind and degrees of
mental disorder.153 It seems unlikely that all persons who suffered from any form of
mental disorder for which provision is made by English domestic law would be
regarded as dependent persons for the purpose of the law of domicile. Whether or not

151

Ibid

152

Bempde v. Johnstone (1796) 3 Ves, 198

153

Mental Health Act (1983)

82

they could form the necessary intention to acquire or lose a domicile is likely to be
treated as a question of fact in each case.
There is one exception to the rule stated above that a mentally disordered person
retains the domicile he had when he became insane. If a dependent child becomes
insane and remains so after attaining the age of sixteen, the appropriate parent has
power to change his domicile even after he attains that age. Whether the power is
exercised or not is a question of fact in each case.
Under the new domicile provisions proposed by the Law Commission,154 an adult
lacking the capacity to form the intention necessary for acquiring a domicile would be
domiciled in the country with which he was for the time being most closely connected.
When that capacity was restored to him, he would retain the domicile he had
immediately it was restored, but could of course then acquire a new domicile under the
rules applying to adults generally.

4.4.0: MERITS AND DEMERITS OF DOMICILE

The English preference for domicile is based on two main grounds. First, domicile
means the country in which a man has established his permanent home, and what can
be more natural or more appropriate than subject him to his home law? It is difficult to
agree that he should be excommunicated from that law merely because technically he
154

Law Commission

83

is a citizen of some state that he may have abandoned years ago.155 Secondly, domicile
furnishes the only practicable test in the case of such political units as the United
Kingdom, Canada, Australia, and USA where the same nationality embraces a number
of sometimes diverse legal systems. The expression national law when applied to a
British subject is meaningless. It is one system in England, another in Scotland;
similarly for a Canadian, there is one system in Ontario and a quiet different one in
Quebec.
In the course of its development in England, however, the law relating to domicile has
acquired certain vices. A short mention of these will suffice. First, it will not
infrequently happen that the legal domicile of a man is out of touch with reality, for
the exaggerated importance attributed to domicile of origin, coupled with the technical
doctrine of its revival may well ascribe to a man a domicile in a country which by no
stretch of the imagination can be called his home. Secondly, an equally irrational
result may ensue from the view, sometimes accepted by the English courts, that long
residence is not equivalent to domicile if accompanied by the contemplation of some
uncertain event the occurrence of which will cause a termination of the residence.
Thirdly, the ascertainment of a mans domicile depends to such an extent on the proof
of his intention, the most elusive of all factors, that only too often it will be impossible
to identify it with certainty without recourse to the courts.
155

Law of Domicile

84

4.5.0: CONCLUSION
In conclusion, it has been suggested that the capacity to acquire a domicile of
dependent person is not always governed by English law, the law forum. Such a
possibility was adumbrated obiter in an English case in 1887. 156 Its acquisition is not
itself a problem for the solution of which a rule for the choice of law is required. For
the connecting factor in any English choice of law rule must logically always be
interpreted according to English notions.157

156

Urquhart v Butterfield (1887) 37 Ch.D 357 at 384

157

Re Martin (1900) P 211 at 227

85

CHAPTER 5
GENERAL CONCLUSION AND RECOMMENDATION
5.0.0: CONCLUSION
In summary of this essay, questions concerning the status of a body of persons
associated together for some enterprise, including the fundamental question whether it
posses the attribute of legal personality, must on principle be governed by the same
law that governs the status of the individual, i.e. by the law of domicile. What this law
admits of no doubt if we reason on the analogy of the individual. Every person
acquirers at birth a domicile of origin by operation of law. In the case of the legitimate
natural person it is the domicile of his father.
It is however clear that the law of domicile needs some radical modifications
especially concerning on the few Nigerian situations. It is so dishearten to know that
our judges have now chosen to adhere strictly to the received English law rules which
have been subjected to reform in England where they originated from, but further
cling conservatively to the outdated rules.
In conclusion, it may be said that a system which is based upon domicile, is free and
more elastic than that which is based upon nationality because nationality is generally
too artificial and has little to recommend it. The Nigerian legislature and court should
remove some of the archaic doctrines that seem to have eaten deep into our modern

86

dispensation, and should form a new definition of domicile, simple and more workable
and in line with the concept of habitual home rather than permanent home.

5.1.0: RECOMMENDATIONS
I would recommend that as touching intention to prove acquisition of domicile;
a) When a person has his home in a country, he should be presumed to intend to live
there permanently.
b) Where a person has more than one home, he should be presumed to intend to live
permanently in the country in which he has his principal home.
c) Where a person is stationed in a country for the principal purpose of carrying on a
business, profession or occupation and his wife and children have their home in
another country, he shall be presumed to intend to live permanently in the latter
country.158
d) The rule of reviving domicile of origin should be regarded as the principle of
continuity i.e. a persons domicile once acquired would continue until he obtained
another one. There will be no question of previous reviving.
e) The fact that a dependent person can only acquire his/her domicile by the act of the
person he is depensdent upon should be rerconsidered. Especially that of a married
woman, she should retain her domicile after acquiring that of her husband.
158

Article 2 of Code of Domicile

87

f)

In all, the law commissions proposals should be considered as a further important

step in the process of improving the structure, effectiveness and fairness of the rules of
domicile

88

BIBLOGRAPHY

ARTICLE ON INTERNET

Omoruyi . I. O. Domicile As A Determinant Of Personal Laws: A Case For

The Abandonment Of The Revival Doctrine In Nigeria
http://www.nigerianlawguru.com.article>accessed 2000

BOOKS

Agbede. I. O, Themes on Conflict of Laws (2001) Shaneson C.I Ltd

Beale, Treatise on the conflict of laws (1935)

Bryan A. Garner, Blacks Law Dictionary 8th ed. Thompson West 2004

Cheshire and Norths; Private International Law(1974)7th edition

Colier J.G; Conflict of laws 2nd ed. Cambridge C. UP 1994

Dicey and Morris; Private International Law (8th ed.1969)

Goodrich and Scoles; Conflict of laws (1964)39

Graveson; conflict of laws (1969)

Morris, Private International Law 4th ed by J.C Mclean Sweet & Maxwell 1993

Oxford Learners Advanced Dictionary 6th ed.by Sally Wehmeier (2000)

Rabel .E.; The Conflict of laws ; A comparative study.(2nd ed.1958)

Wolff. M., Private International Law (2nd ed. 1950) p 109

89