DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW
A Project submitted in the partial fulfillment of B.A. LLB. (Hons.) (VIISemester) Course in the Conflict of Laws on Topic;

Domicile and Residence and Conceptual Analysis

SUBMITTED BY;
Shilpi Rana
ROLL NO. 119
B.A.LL.B (Hons.)VIII- Semester

ACKNOWLEDGEMENT

I would like to take this opportunity to express my sincere thanks to Mr.

Pandey, Faculty in Law, Dr. Ram Manohar Lohia National Law University,
who gave me an opportunity to write on this topic and also gave his valuable
suggestions to complete this project and without him this project would not
have reached this shape.
I would also like to thank my family, without their love and support this
project would not have completed. Last but not the least; I would like to thank
my friends who were very helpful throughout the completion of the project.

TABLE OF CONTENTS

TOPIC

PAGE NO.

Table of Cases4

1. Introduction.. 5
2. Concept of domicile. 6
Types of domicile
Test of domicile.
3. Concept of residence 12
Types of residence
Test of residence
4. Where is the differentiating line exists. 15
5. Report of Law Commission of India 17
6. Conclusion. 18
7. BIBLIOGRAPHY.19

TABLE OF CASES

1. Bell v Kennedy [1868].

2. C v. S (1947) 2 All ER 677
3. Drevonv Drevon [1864] 34 L J Ch 129, 133.
4. Fox v. Stirk (1970) 2 Q.B. 468
5. IRC v Duchess of Portland [1982] Ch 314, 318-319
6. Irwin v. Irwin (2001) 1 F.L.R178, 189
7. Leon v. Leon, [1966] 3 All E R 820
8. Matalon v. Matalon(1952), p. 233
9. Mitchell v. U.S 88 U.S. 350, 352 (1874)
10. Re M [1993] 1 FLR 495.
11. SumathiAmmal v. D. Paul, AIR 1936 Madras 324 (FB)
12. T. J. Poonen v. Rathi Varghese AIR 1967 Kerala 1 (FB)
13. Udnyv Udny[1869] LR 1 Sc&Div 441, 458
14. Whicker v Hume [1858] 7 HLC 124, 160

1. INTRODUCTION
Domicile (the lexdomicilii) has a dominating role in family and matrimonial property law
and a role in other areas such as capacity of persons to make contracts. It plays a part also
in the law of taxation. Domicile cannot be defined with precision Whicker v Hume1defined
domicile as permanent home. However, you will find many reported cases where a person
has lived in a place for 30 or 40 years and has not been held to have acquired a domicile
there. After reading the cases listed above you may conclude that the persons in question
(such a person is often called the propositus) had permanent homes in England, but in none
of the four cases was a domicile acquired in England.
In most systems of the conflict of laws the notion of belonging to a country in some
string sense is of great importance: it identifies an individuals personal laws which governs
the questions concerning personal and proprietarily relationship between the family. Place
of birth is an adequate criterion by which to identify personal law. In England and other
common law countries it is the law of domicile.
Domicile is easier to illustrate than to define. By domicile, we mean permanent home. The
notion of home, or of permanent home takes colour from different facts. An Englishwoman
aged 70 years, a widow after living all her life in Somerset goes to new Zealand to live with
her married daughter, although that move may be, impractical terms, irreversible, is she not
likely to regard England as her homeland? In fact, domicile cannot be equated with home,
because as we shall see a person may be domiciled in a country which is not or never has
1[1858] 7 HLC 124, 160
5

been his home; a person may have homes in different countries but can have a domicile
only one at a time; he may be homeless, but he may have domicile. 2 Indeed there is a wide
gulf between the popular conception of permanent home and the legal concept of domicile.
This paper tries to analyse the concept of Domicile and Residence and the author endeavors
to discuss the conflating concept of Habitual residence and Domicile.
The most basic link between an individual and a country is mere physical presence, even if
it be for a very short period of span. Residence is actually and basically a question of
fact; in some contexts it means very little than the physical presence. But it does not mean
something more, for a person passing through a country as a traveler in not resident there. 3
If someone becomes resident in the country, the link may remain during the brief periods of
absence. It is difficult to be more specific, for a great deal depends upon the context in
which the term residence is used. In a case, held, that university student was resident in
their university town for electoral registration purposes. 4In simple words it can be said that
the term residence means different things for different legal purposes. It may be that a
person will relatively easily be held resident in a country if the issue is one of that
jurisdiction of that countrys court, but less if the context is one of the residence during the
fiscal year.
2. CONCEPT OF DOMICILE
Domicile connects a person with the law of a country 5. The object of determining a
persons domicile is to connect that person with some legal system for some legal purposes.
2A. G. Gupte, Law of Marriage and Divorce, 1st edition, (2007), p. 1049
3Matalon v. Matalon(1952), p. 233
4Fox v. Stirk (1970) 2 Q.B. 468
5Bell v Kennedy [1868].Domicile is an idea of law can be found in this case.
6

To establish such connection it is sufficient to prove the domicile of that country in the
sense of the conflict of laws e.g. England, Scotland, or New York. It is not necessary in
which part of the country he is domiciled. A person who emigrates e.g. to the UK with the
intention of settling in England or Scotland, only acquires a new domicile by deciding in
which country to settle and by actually settling there.6
There are four fundamental principles to the law of domicile. The principles of
domicile are that:

No person can be without a domicile. This principle springs from the particular
necessity of connecting every person with some system of law by which a number
of legal relations may be regulated.

No person can at the same time for the same purposes have more than one domicile.
This rule springs from the same rule.

An existing domicile is presumed to continue until it is proved that a new domicile

has been acquired. Hence the burden of proving a change of domicile lies on those
who assert it. The change of a domicile of origin must be proved beyond reasonable
doubt: the change of a domicile of choice may be proved on a balance of
probabilities.

For the purpose of the rule of conflict of laws, domicile means domicile in the
English sense. the question as to where a person is domiciled in determined solely
in accordance with the English law

In Mitchell v. U.S., the Supreme Court appeared to struggle with the definition of domicile:

6 Ibid.
7

[Domicile is a] residence at a particular place accompanied with positive or presumptive

proof of an intention to remain there for an unlimited time . . . By the term domicile, in its
ordinary acceptation, is meant the place where a person lives and has his home. The place
where a person lives is taken to be his domicile until facts adduced establish the contrary.7
The Mitchell Courts need to define and then redefine domicile appears to be a sign of
discomfort with the concept. Each definition is cited to a source (mostly English cases), but
the Court does not expressly settle on a definition of domicile. It is too wide a formulation
to say that in an English court, domicile means domicile in the English sense.8

Types of Domicile:

1. Domicile of origin: it is more tenacious than a domicile of choice. It is more difficult to

prove it has been abandoned. If a person leaves the country of his domicile of origin,
intending never to return to it, he continues to be domiciled there until he acquires a
domicile of choice in another country. Every person acquires at birth a domicile of
origin. This is the domicile of his father at the time of his birth if he is legitimate. It is
the domicile of his mother if he is illegitimate or if his father dies before he is born.
Foundlings have a domicile of origin in the country in which they are found. A domicile
of origin may be changed as a result ofadoption, but not otherwise. A person acquires a
domicile of origin at birth. The domicile of a minor child is that of
1. the father if legitimate;

788 U.S. 350, 352 (1874)

8Irwin v. Irwin (2001) 1 F.L.R178, 189, per Cazalet J.
8

2. the mother if illegitimate;

3. the individual who has primary parental responsibility rights if not a parent; or
4. The country in which the child was found if a foundling. Under the law of
the United States, where a person's place of birth is unknown, their domicile of
origin is "the place to which a person can earliest be traced.9
The domicile of origin is absolute and will be the base reference point throughout a
person's life. Thus, if a person acquires a domicile of choice but later abandons it, the
domicile of origin will automatically revive. During the minority, the child has domicile of
dependency, and it changes to match that of the relevant adult.
2. Domicile of choice:Every independent person can acquire a domicile of choice by
thecombination of residence and intention of permanent or indefinite residence. It can be
very easily changed by having the required intention and residence. A person who has
reached the age of majority, is free to choose a new domicile. This choice is effective
when an individual has both:
1. the factum, i.e. unequivocally abandons the old domicile, and
2. the animus semper manendi, i.e. enters a new state with the intent to make it their
permanent home.
The latter is very difficult to prove because most people retain affection for their
previous state and think that they may one day return. Even if a domicile of choice is
9 First Restatement of Conflicts, 14(3)
9

found to have arisen, it will be lost as soon as either the factum or the animus is lost.
At this point, the domicile of origin revives
Domicile of dependency: The domicile of a dependent person is the same as, and
changeswith, the domicile of the person on whom he or she is, as regards domicile, legally
dependent. Here in the project, the dependents covered are the married women and
children.
ChildrenThe domicile of a child less than 16 years in English law and 18 years in
Indian law, is quite complicated.

If legitimate, it is that of his father

if he is illegitimate or his father is dead it is that of his mother

If he has no parents, his domicile probably cannot be changed if he is adopted, his

domicile is determined as if he were the legitimate child of the adoptive parent or
parents.

Married women
Until 1 January 1974 a married woman (even if a minor) was dependent for the purposes of
the law of domicile upon her husband. So it was the same as, and changed with, the
domicile of her husband. This applied even where they were living apart and had done so
for many years. The domicile of a married woman is now ascertained by reference to the
same factors as in the case of any other individual capable of having an independent
domicile10

Test of Domicile

10Domicile and Matrimonial Proceedings Act 1973 s.1 (1)).

10

Intention is intention to reside permanently or indefinitely in a country, that is not for a

limited period or a particular purpose. If the person will leave upon the occurrence of a
contingency, this possibility will be ignored if the contingency is vague and indefinite (e.g.
winning the lottery), but if it is clearly foreseen and reasonably anticipated (e.g. coming to
the end of employment), it may prevent the acquisition of a domicile of choice.
Naturalisation is relevant, but it is not decisive as a matter of law. It is a circumstance and
any circumstance which is evidence of a persons residence, or his intention to reside
permanently or indefinitely, must be considered in determining whether he has acquired a
domicile of choice in that country. Most disputes as to domicile turn on the question of
whether the necessary intention accompanied the residence. A court has said: 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 of more weight with regard to determining this
question than an act which was of more importance to a man in his lifetime11
Cheshire and North12 (p.143) say:Nothing must be neglected that can possibly indicate the
bent of the residents mind. His aspirations, whims, amours, prejudices, health, religion,
financial expectations
A person whose domicile is in question may testify as to his intention, but courts view the
evidence of an interested party with suspicion. Declarations of intention made out of court
may be given in evidence by way of exception to the hearsay rule. It has been said that to
acquire a domicile of choice there must be: a residence freely chosen, and not prescribed or
dictated by any external necessity, such as the duties of office, the demands of creditors or
11Drevonv Drevon[1864] 34 L J Ch 129, 133.
12Cheshire and Norths Private International Law, 13th edition, (1999), p.152
11

the relief from illness13. This can be seen by examining certain categories of persons.
Domicile of choice is a question of fact, not of law, requiring the combination and
coincidence of residence in a country and a bona fide intention to make a home in that
country permanently or indefinitely. A person can be resident in a place where she has no
right to be, and could form an intention to remain in a place despite considerable
uncertainty as to whether this could be possible. There is no reason in principle why a
person whose presence is unlawful could not acquire a domicile of choice.

3. CONCEPT OF RESIDENCE
Residence means the place where one actually lives, as distinguished from a domicile.
Residence must be bona fide residence.14 Residence means physical presence as an
inhabitant (IRC v Duchess of Portland15) It is not necessary that residence should be of
long duration but there had been decisions where it was held that even a part of a day was
enough. An immigrant can acquire a domicile immediately on arrival if he or she intends to
settle.
The term residence is often found in the Hague Conventions and often makes its way into
English law through this route. The Hague Conventions do not define habitual residence.

13Udnyv Udny[1869] LR 1 Sc&Div 441, 458

14SumathiAmmal v. D. Paul, AIR 1936 Madras 324 (FB)
15[1982] Ch 314, 318-319.
12

The Court of Appeal has said that it is primarily a question of fact to be decided by
reference to the circumstances of each particular case16

Types of Residence:

Habitual residence- to acquire a habitual residence, a person must take up lawful residence
in the country and therefore a period which shows that the residence has become habitual.
The length of the period is not fixed.A place of settled dwelling which constitutes a person's
ordinary residence. In C v S, the British Court said:
"If he or she leaves ... with a settled intention not to return ... but to take up residence in
country B instead, such a person cannot, however, become habitually resident in a single
day. An appreciable period of time and a settled intention will be necessary to enable him or
her to become so."17
In other words, it may take time to establish a habitual residence, but terminating only takes
a departure with intent to relocate permanently. In some cases, a new habitual residence
could be established in as little as one month. The term is a pivotal part of the Hague
Convention on International Child Abduction which, at Article 4, uses the term but does not
define it, as follows: "The Convention shall apply to any child who was habitually
resident in a Contracting State immediately before any breach of custody or access rights.
The Convention shall cease to apply where the child attains the age of sixteen years."
Ordinary residence- It refers to a persons abode in a particular place or country which he
has adopted voluntarily and for the settled purposes, as part of the regular order of his life
16Re M [1993] 1 FLR 495.
17 (1947) 2 All ER 677
13

for the time being, whether of long or short duration. Its established meaning is that the
claimant is Ordinarily residing in the United Kingdom ( UK) (apart from temporary or
occasional absences) And Their residence here has been adopted voluntarily for settled
purposes as part of the regular order of their life for the time being.
To decide whether the claimant has their settled home in the UK, you must consider all the
relevant facts. Refer to People coming to the UK and People leaving the UK below18.
A claimant can be ordinarily resident in more than one country. If a claimant stated they
have a home in another country this does not mean they cannot be ordinarily resident in the
UK.A claimant who lives in the UK year after year should be treated as being ordinarily
resident here.

Test of Residence:

So, the test to be applied in this context will again be that of the persons abode in
particular purposes as part of the regular order of the life for the time being. In Breuning v.
Beuning, it was held that the continued presence in England of someone who had no choice
but to remain in England for the medical purposes did not constitute habitual residence.
A Full Bench of the Kerala High Court in T. J. Poonen v. Rathi Varghese19 after considering
various decisions gave thefollowing propositions and laid down few test as to ascertain the
existence of residence.
(1) To constitute residence it is not necessary that the party orparties must have his or
their own house.
18 Dicey and Morris: Private International Law, Sweet and Maxwell, New York
19AIR 1967 Kerala 1 (FB)
14

(2) To constitute residence the stay need not be permanent; itcan be temporary, so long as
there is animus manendioran intention to stay for an indefinite period.
(3) Residence will not take in a casual stay in, or flying visit toa particular place; a mere
casual residence in a place for atemporary purpose, with no intention of remaining, is
notcovered by the word reside.
(4) Residence connotes something more than stay; it impliessome intention to remain at a
place, and not merely to payit a casual visit.
(5) As emphasized by the Supreme Court, by staying in aparticular place, in order to
constitute residence, theintention must be to make it his or their abode or residence,either
permanent or temporary.
(6) The expression last resided also means the place where the person had his last abode
or residence, either permanent or temporary.
(7) Where there has been residence together of a more permanent character, and a casual or
brief residence together, Courts have taken the view that it is only the former that can be
considered as residence together for determining the jurisdiction.
(8) The question as to whether a particular person has chosen to make a particular place his
abode, is to be gathered from the particular circumstances of each case.

4. 224th REPORT OF LAW COMMISSION OF INDIA20

Domicile of a person is his permanent home. No person can be without a domicile and no
person may have more than one operative domicile. National boundaries do not constitute a
hindrance in ones choice of domicile. This implies that a person may be national of one
20Amendment of Section 2 of Divorce Act 1869 Enabling Non-domiciled Estranged
Christian Wives to seek Divorce, June 2009.
15

country, but his domicile may be another country. Domicile denotes the connection of a
person with a territorial system of law. The importance of domicile lies in the fact that a
persons family matters, like marriage and divorce, are generally determined by the law of
the place of his domicile, besides his religion. The domicile of a married woman is the
same as her husbands by virtue of marriage.
There are two main classes of domicile: domicile of origin and domicile of choice.
Domicile of origin is communicated by operation of law to each person at birth. Domicile
of choice is acquired by a person of full age in substitution for that which he at present
possesses. There are two requisites for acquisition of a fresh domicile: residence and
intention. It must be proved that the person in question established his residence in a
certain country with the intention of remaining there permanently. These two elements of
residence and intention must concur, but this is not to say that there need be unity of time in
their concurrence. The intention may either precede or succeed the establishment of the
residence.
Domicile generally constitutes the basis of jurisdiction of courts for entertaining petitions
for divorce. Although the matrimonial law in India differs from community to community,
the jurisdictional rules differ only slightly.21 The time at which domicile is to be determined
is the time when proceedings are commenced22 In England, the Domicile and Matrimonial
Proceedings Act 1973 changed the position of the jurisdictional rule in regard to petitions
for divorce and now the English courts have jurisdiction to entertain a petition for divorce
if either of the parties to the marriage is domiciled in England on the date when

21ParasDiwan, Private International Law, 4th edition, Deep & Deep Publications, New
Delhi (1998), p. 284
22Leon v. Leon, [1966] 3 All E R 820
16

proceedings are commenced, as now after 1st January 1974 a married woman can have her
own separate domicile.
The said Act not only provides for abolition of wifes dependent domicile, but also adopts
habitual residence as the second basis of jurisdiction: if either party to the marriage was
habitually resident in England throughout the period of one year ending on the date when
the proceedings are commenced, the English courts have jurisdiction to entertain a petition
for divorce.
In India, although there has not been enacted any law for abolition of wifes dependent
domicile, the jurisdictional rule in regard to petitions for divorce (being linked with
domicile of the parties) has been relaxed in various ways in certain matrimonial
legislations. For example, under the Hindu Marriage Act 1955 and the Special Marriage
Act 1954, a petition for divorce may be filed by a wife at the place where she is residing on
the date of the presentation of the petition, videthe Marriage Laws (Amendment) Act 2003.
Sub-section (2) of section 31 of the Special Marriage Act 1954 even before the said 2003
Act provided that a petition for divorce by a wife could be filed here if she had been
ordinarily resident in India for a period of three years immediately preceding the
presentation of the petition irrespective of the husbands residence being outside.
The above amendment brought about by the Marriage Laws (Amendment) Act 2003 was
prompted by the recommendations of the Law Commission of India 23 and the National
Commission for Women. The Law Commission had expressed the view that such an
amendment would give a wife, deserted or thrown out, the choice of court, including where

23178th Report on Recommendations for amending Various Enactments, both Civil and
Criminal (2001)
17

she is residing, to file a petition, relieving her of unbearable burden of expense and
inconvenience as well as advancing the cause of gender justice.
Thus, her residence may well constitute the basis of jurisdiction for a petition for divorce
by a wife irrespective of her domicile. Domicile generally constitutes the basis of
jurisdiction of courts for entertaining petitions for divorce. Although the matrimonial law in
India differs from community to community, the jurisdictional rules differ only slightly.
The time at which domicile is to be determined is the time when proceedings are
commenced.
The LCI has recommended that Section 2 of the Divorce Act 1869 should be suitably
amended in order that the Indian courts shall be entitled to entertain a petition for
dissolution of a Christian marriage where either of the parties to the marriage is domiciled
in India at the time when the petition is presented. However, this suggestion would also
need simultaneous change in the rule of Private International Law as to a wifes domicile,
that is, abolition of wifes dependent domicile, as done in England through the Domicile
and Matrimonial Proceedings Act 1973. In the alternative, following the Marriage Laws
(Amendment) Act 2003, the said provision may be amended to provide that a petition for
divorce may be filed by a Christian wife at the place where she is residing on the date of
the presentation of the petition.

5. CONCLUSION
Naturalisation is relevant, but it is not decisive as a matter of law. It is a circumstance and
any circumstance which is evidence of a persons residence, or his intention to reside
permanently or indefinitely, must be considered in determining whether he has acquired a
domicile of choice in that country. Domicile is the most significant connecting factor in
18

English conflict of laws. It is difficult to define, but easier to understand in practice. There
are important principles of domicile. Everyone is born with a domicile of origin, which
remains (if only in abeyance). Domicile of choice can be acquired by residence and an
intention to reside indefinitely.
There is no simple definition of the legal term "domicile". It is a concept which is distinct
from residence, ordinary residence, nationality and citizenship. In very simple terms, a
person is domiciled in the territory with which the law regards him as having his most
permanent connection. The law of domicile can, however,produce strange results. Where
the concept of domicile connects a person with a legal system, that legal system then
regulates a number of personal matters,for example succession to property on a person's
death and certain taxation implications. Residence indicates a degree of physical presence
in a territory, but a person may be domiciled in a territory in which he does not reside,
which he never visits, and to which he has never even been. Although a person may have
more than one nationality, or none at all,and may be treated as resident in more than one
place at any one time, he must have a place of domicile and can only have one such place
at any one time. Furthermore that place of domicile may be different from his place(s) of
nationality and/or residence.

BIBLIOGRAPHY

Books:
1. Dicey and Morris: Conflict of Laws; 14thedn, Sweet and Maxwell, London, 2007

19

2. A. G. Gupte, Law of Marriage and Divorce, 1st edition, Premier Publishing

Company, Allahabad (2007),
3. H. K. Saharay, Laws of Marriage and Divorce, 5th edition, Eastern Law House,
Kolkata (2007)
4. Cheshire and Norths Private International Law, 13th edition, Butterworths, London
(1999)
5. ParasDiwan, Private International Law, 4th edition, Deep & Deep Publications, New
Delhi (1998),

Reports:
1. 224th Report of Law Commission of India, June 2009
2. 15th Report of the Law Commission (1960)

20