2/20/2018 Domicile Definition - Law Dictionary | LegalCrystal

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Domicile, the place where a person has his home. By the term
'domicile,' in its ordinary acceptation, is meant the place
where a person lives or has his home. In this sense the place
where a person has his actual residence, inhabitancy, or
commorancy, is sometimes called his domicile. In a strict and
legal sense, that is properly the domicile of a person where he
has his true fixed permanent home and principal
establishment, and to which, whenever he is absent, he has
the intention of returning (animus revertendi). Two things,
then, must concur to constitute domicile: first, residence; and
secondly, the intention of making it the home of the party.
There must be the fact and intent; for, as Pothier has truly
observed, a person cannot establish a domicile in a place
except it be animo et facto. From these considerations and
rules the general conclusion may be deduced, that domicile is
of three sorts: domicile by birth, domicile by choice, and
domicile by operation of law. The first is the common case of
the place of birth, domicilium originis; the second is that
which is voluntarily acquired by a party, proprio Marte; the
last is consequential, as that of the wife arising from
marriage, Story's Confl. of Laws, s. 46. A good definition, as
applied to an acquired domicile, is'that place in which a man
has voluntarily fixed the habitation of himself and family, not
for a mere special or temporary purpose, but with the present
intention of making a permanent home, until some
unexpected event shall occur to induce him to adopt some
other permanent home, Lord v. Colvin, (1859) 4 Drew 366,
per Kindersley, V.-C. But no definition is perhaps quite
satisfactory; see Deicey's Conflict of Laws, p. 731. If a person
leaves his own country with the intention of remaining
abroad till death, he, nevertheless, retains his domicile of
origin until he fix his domicile in some particular place. It is a
clearly established rule that the validity of a will, disposing of
personal estate, as regards form, is regulated by the law of the
country in which the deceased was domiciled at the time of
his death. The application of this rule to the case of British
subjects dying abroad, and of foreigners dying in this country,
gave rise to great inconvenience, to remove which two
statutes were passed in 1861. By the first of these, the
(English) Wills Act,1861 (24 & 25 Vict. c. 114), it is enacted
among other things that every will made out of the United
Kingdom by a British subject (whatever may have been his
domicile) shall, as regards personal estate, be held to be well
executed, for the purpose of probate, and in Scotland of
confirmation, if the same be made according to the law of the
place where it was made, or the law of the place where the
deceased was domiciled when it was made, or the laws then
in force in that part of the dominions of the Crown where he
had his domicile of origin. By the second statute, 24 & 25
Vict. c. 121, in cases where a convention shall have been
entered into between the Crown and any foreign state that
such statute shall be applicable to the subjects of the Crown
and such foreign State, it is enacted that no British subject
dying in such foreign State, and that no subject of such

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foreign state dying here, shall be deemed to have acquired a

domicile in the place of his death unless he shall have resided
there for one year; but no convention having been entered
into with any foreign state, this enactment is inoperative. The
domicile of a wife is that of her husband, A.-G. of Alberta v.
Cook, 1926 AC 444. For the English Courts to have
jurisdiction to entertain a suit for dissolution of marriage the
parties must be domiciled in England or Wales, though in the
case of a suit for judicial separation mere residence is
sufficient, Armytage v. Armytage, 1898 P. 178. A decree
annulling a marriage on the ground of impotence is in effect a
decree for dissolution and can only be pronounced by the
courts of the domicile of the parties, Inverclyde v. Inverclyde,
1931 P. 29. The question whether a person is or is not
domiciled in a foreign country is to be determined in
accordance with English law as to domicile irrespective of the
question whether that person has or has not acquired a
domicile in the foreign country in the eyes of the law of that
country (Re Anneslay, 1926 Ch 692). In matters coming
before the English Courts and depending on foreign domicile,
the lex domicilii in the widest sense must prima facie apply
[Re Askew, (1930) 2 Ch 259]. See Dicey's Conflict of Laws;
Westlake's Private International Law. Domicile in ordinary
legal partance domicile can be defined as an intention to
reside in a particular territory which is not transient or for a
limited period only. Kirandeep Kaur v. Regional Passport
Office, AIR 2006 Del 2. The term 'domicile' lends itself to
illustrations but not to definition. Be that as it may, two
constituent elements that are necessary by English Law for
the existence of domicile are: (1) a residence of a particular
kind, and (2) an intention of a particular kind. There must be
the factum and there must be the animus. The residence need
not be continuous but it must be indefinite, not purely
fleeting. The intention must be a present intention to reside
for ever in the country where the residence has been taken
up. It is also a well established proposition that a person may
have no home but he cannot be without a domicile and the
law may attribute to him a domicile in a country where in
reality he has not. A person may be a vagrant as when he lives
in a yacht or wanderer from one European hotel to another,
but nevertheless the law will arbitrarily ascribe to him a
domicile in one particular territory. In order to make the rule
that nobody can be without a domicile effective, the law
assigns what is called a domicile of origin to every person at
his birth. This prevails until a new domicile has been
acquired, 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, Central Bank of India v. Ram Narain, AIR 1955 SC
36: (1955) 1 SCR 697. 'Domicile' which is a private
international law or conflict of laws concept identifies a
person, in cases having a foreign element, with a territory
subject to a single system of law, which is regarded as his
personal law. A person is domiciled in the country in which
he is considered to have his permanent home. His domicile is
of the whole country, being governed by common rules of
law, and not confined to a part of it. No one can be without a
domicile and no one can have two domiciles, Yogesh
Bhardwaj v. State of Uttar Pradesh, (1990) 3 SCC 355: AIR
1999 SC 356 (360). For the acquisition of a domicile of
choice, it must be shown that the person concerned had a

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certain state of mind, the animus manendi. If he claims that

he acquired a new domicile at a particular time, he must
prove that he had formed the intention of making his
permanent home in the country of residence and of
continuing to reside there permanently. Residence alone,
unaccompanied by this state of mind, is insufficient, Louis
DC Raedt v. Union of India, (1991) 3 SCC 554: AIR 1991 SC
1886 (1889). By domicile is meant a permanent home.
Domicile means the place which a person has fixed as a
habitation of himself and his family not for a mere special
and temporary purpose, but with a present intention of
making it his permanent home. Domicile of choice is thus the
result of a voluntary choice, Abdus Samad v. State of West
Bengal, AIR 1973 SC 505 (506). [Constitution of India, Art.
5(c)]

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