Domiciliary Theory

1
It is the theory whereby the status, condition, rights, obligations, and capacity of a person
are governed by the law of his domicile or lex domicilii.

Domicile

True, fixed, permanent home and principal establishment, and to which, whenever one is
absent, one has the intention of returning.

It is the place where a person has a settled connection for certain legal purposes, either because
his home is there or that is the place assigned to him by law.

Natural Persons Juridical Persons

For the exercise of civil rights and fulfillment GR: domicile is determined by the law creating
of civil obligations, the domicile of natural or recognizing it
persons is the place of their habitual residence In the absence of such law: place where their
legal representation or place of business is.

DISTINCTIONS
DOMICILE RESIDENCE
Concurrence of intention to make it ones Simply requires bodily presence of an
domicile and physical presence inhabitant in a given place
Relatively more permanent abode of a person Temporary stay of a person in a given place

What law determines ones domicile?

The prevailing rule is that the forum applies its own concept of domicile in determining
the domicile of a litigant before its courts.

Merits and Demerits of Domiciliary Theory

A. Merits
The relationship between an individual and the place where he establishes his permanent home
provides an adequate basis for him to exercise rights therein and the state to impose duties on
him.

B. Demerits

1. Ones domicile is not ascertainable without first resorting to the courts to establish whether or
not there is animo manendi (intention to remain)

2. The notion of domicile differs widely with some states distinguishing between residence and
domicile.

3. When the law imposed at birth, independent of ones free choice be given weight when the
person has no significant ties with and possibly feels only repugnance for that state.

General Rule: Philippines follow the nationality theory

Exceptions:

It follows the domiciliary theory in the following cases:

- Where the litigant is an alien who comes from a country following the domiciliary
principle
- Stateless persons
- When an alien domiciled in the Philippines executes a will abroad

General Rules on Domicile

1. No person shall be without a domicile
A persons domicile of origin prevails until he acquires a new domicile

2. A person cannot have two simultaneous domiciles

A person can only have one domicile for a given purpose, for a given time, under the law
of a particular state.
A person may have residence in different places but he is domiciled only in the place
where he intends to make a permanent home.
 Reason: The very purpose for identifying ones domicile is to establish a connection
between the person and a definite legal system

3. It establishes a connection between a person and a particular territorial unit.

4. The burden of proving a change of domicile is on whoever alleges that a change has been
secured.

Kinds of Domicile
1. Domicile of Origin
- Persons domicile at birth
- Enjoys the presumption in favor of its continuance

Rules in determining one's domicile of origin

(1) If the child is legitimate, his domicile of origin is that of his parents at the time of his birth. If

the parents are separated, the domicile is that of the custodial parent.
(2) If the child is illegitimate, his domicile of origin is that of the mother at the time of his birth.
(3) If the child is legitimated, the domicile of his father at the time of his birth controls, since

the effects of legitimation retroacts to the time of the child's birth (Art. 180, Family Code)
(4) The domicile of origin of an adopted child is the domicile of his real parents at the time of

his birth, not the domicile of the adopters.

2. Domicile of Choice (Voluntary Domicile)

- Place freely chosen by a person sui juris (person of his own right)
- Concurrence of physical presence in the new place and unqualified intention to make
that place ones home
- Deemed extinguished by removal of intent, even prior to the acquisition of a new
domicile

3. Constructive Domicile
- By operation of law, a domicile is assigned to persons legally incapable of choosing
their own domicile
Example: Minors, mentally disabled, married women

Rules in determining one's constructive domicile

(1) Minors
(a) If legitimate, the domicile of both parents. In case of disagreement, that of the

father, unless there is a judicial order to the contrary. (Art. 211, Family Code).
(b) If illegitimate, the domicile of the mother (Art. 176, Family Code).
 (c) In case of absence or death of either parent, the domicile of the present parent.

Even in case of the remarriage of the surviving parent, still his/her domicile

determines the constructive domicile of the minor child.

(d) If the child is adopted, the domicile of choice of the adopter is the child

constructive domicile.
(2) Insanes, idiots, imbeciles
Since insanes and other mentally incapacitated persons cannot select their own

domicile, the law assigns their domicile to them.

(a) If they arc below the age of majority the rules on minors apply to them.
(b) If they are of age and have guardians, they follow the domicile of choice of their

guardians. If they have no guardians their constructive domicile is their domicile of

choice before they became insane.

(3) Married women
(a) If the marriage is valid:
The constructive domicile of the wife is the domicile of both spouses, unless the law

allows the wife to have a separate domicile, for valid and compelling reasons.
If there is legal separation between the spouses, the wife can have her own domicile of

choice.
(b) If the marriage is voidable:
Apply the same rules as when the marriage is valid. However, after annulment, the wife

can freely select her own domicile of choice.

(c) If the marriage is void:
Since there is really no marriage in this case, the wife can have a domicile separate

from the husband.

(4) Other persons
(a) Convict or prisoner
He is not free to have a domicile of choice, so his domicile is the one he had

possessed prior to his incarceration.

(b) Soldiers
Since they are compelled to follow the dictates of the military, their domicile is

the domicile before their enlistment.

(c) Pubic officials or employees abroad like diplomats, consular officials, etc.
 Since their stay abroad is in their official and not in their personal capacity', their

domicile is the one they had before they were assigned elsewhere, unless they

voluntarily adopt their place of employment as their permanent residence.

Revival of Domicile of Origin

Domicile of origin is revived once the domicile of choice is given up and before a new
one is acquired.

Special Problems in Domicile of choice vis-a-vis Constructive Domicile

1. People under physical or legal compulsion
In a place not as a result of his own volition
Examples: Military personnels, prisoners, persons with disabilities confined in
institutions.

2. Married women
Take the domicile of her husband, based on the concept of unity and identity of spouses
and reinforced by a gender based presumption that his identity was determined by the husband.