The role of domicile in conflict of laws
This ambiguous attribute is perhaps the main reason Morris and Dicey refer to it as complex1. Legal practitioners agree that a concise conceptualization of the law of domicile will always give rise to loopholes, as law is constantly changing with respect to necessity. Important to note however is that with changing aspects of law brings a diversity of legal systems among the populous in different territories of the world, resulting to a theoretical branch of law called conflict of laws. Unlike rocks and trees human beings are not only social beings but are also not grounded to single spots. Complementary to that, is the high and ever increasing rate of mobility in the present age. Therefore, it can be defined a person’s main and permanent home which in the event that they leave the establishment, they intend to go back to3.
According to Lord Chelmsford domicile refers to a place of residence set up by a person for themselves and their family for use as their permanent place of residence4. Moreover, domicile can also be defined as the permanent residence of a person’s family5. At this point I bring to attention my choice of words at the start of this section. Using “definition” rather than “meaning” was quite deliberate. Of most significance however are the words of Lord Westbury since he consolidated a wide array of principles derived from different case law and written works in one judgment. First in the list is that no one shall be without domicile. For this reason, from the moment a person is born, they are afforded the domicile of their paternal parent as per the dictates of the law8.
This is essentially the domicile of origin. No individual shall have two domiciles at any given time; as such, a person automatically gives up their claim to the domicile of origin when taking on another domicile9. A child legitimately born to a father who assumes the domicile (of origin) that his father has. A child legitimately born to a deceased father and a child illegitimately born assume the domicile of the mother. A child found without kin assumes the domicile of the jurisdiction in which he is found. Domicile of choice; Every person can upon reaching the age of majority as prescribed in that particular jurisdiction, take on the domicile of another jurisdiction and give up his domicile of origin by residing in that particular jurisdiction and expressing their intention to permanently stay in that jurisdiction.
Of essence is the coinciding of residence and intention to reside indefinitely. This is because it didn’t recognize the Mail-order divorce of her previous husband from a Mexican court by virtue of the fact that neither the former husband nor the plaintiff was domiciled in the place of judgment at the time of judgment. So technically according to the social security board, her husband was still alive. The mail-order divorce was pegged on domicile of origin, yet she claimed the widow’s benefits under the domicile of choice. Later the court however overturned the social security board decision and recognized the divorce as being valid. This case awakens us to the fact that a person may not necessarily be exclusive under one domicile.
21 It was interpreted to mean presence as an inhabitant as opposed to a traveler. Kudrat asserts that older cases lean on time period in determining residence, which has over time changed such that residence tests for both qualitative and quantitative aspects. 22 Plummer v IRC23 showcases the quantitative aspect hereby Hoffman, though harboring intention to join her family in Gernsey after education and brief practice, the court found her to be domiciled in London. It further held that when one has property in multiple residences then the chief residence sums up as the persons domicile. In Udny v Udny24 colonel Robert Fullerton Udny took a lease house in London where he resided for thirty two years. The contention on standard of proof with regard to intention is no light matter.
This puts too much discretion on courts it may seem. It has been rightly asked; who can know the thoughts of man? Funny to note though, is that some court precedents suggest that the courts could read minds! One such example is in Winans v Attorney General,27 where the court ruled that Winans hatred for Britain showcased an absent of intention to be domiciled there, regardless of the fact that he had lived there many years. William Louis Winans was born in the USA. Upon recommendation by his doctor due to health reasons he moved to England where he died many years later. However a complete structuring of the legal framework is of essence, such that the courts may make rational judgments without hinting to the populous that they could be possibly making use of psychic judges.
Regardless, there are certain standards that have been set by the common law through various cases when it comes to determining intention. First of all, the nature of the intention is of utmost importance so that it should be clear that the person wishes to reside in the new jurisdiction permanently as was held in Mark v. Mark (2005). The case involved a divorce petition of a couple from Nigeria who had been residing in England. Marriage- establishing the validity of marriage, determination of the jurisdiction of the laws to be applied in the event of a divorce or an annulment and so on 2. Domicile determines the obligations of a person toward the law of the land to which he is domiciled, and determines his rights thereof.
Tax- in the USA for instance, residence with regards to domicile and statutory residence are two concepts. Whereas one pays tax where he works, one is required also to file tax returns to the authorities under which he is domiciled. 29 In this case domicile helps shield individuals from double jeopardy. With the exception of inter alia domicile among states. Domicile has been referred to as a ‘Law District’33. Where the authority has been distributed between states and federal legislatures, the law district s is equivalent respective states. 34 In the US it’s also significant to note that domicile is mainly invoked with regards to taxes; state tax and federal tax. However in comparative terms, the determination of intent when determining residence of choice is much clearer and consistent in the US than in the UK.
Now since the tax and conditions vary from state to another. Corporates register their businesses in favorable states but operate them from different states to the ones registered, in this case they can be said to be having two domiciles. Practice in Malaysia Malaysia on the other hand is of interest to legal minds by virtue of the coexisting legal systems in place. This is mainly in regard to family law; marriage, matrimonial breakdown and the welfare of children. A Malaysian citizen is assumed to have a domicile in Malaysia unless the contrary is proven to be domiciled in Malaysia35 yet the domicile is not in itself express articulation of the legal system to be applied on a particular individual. Rather it is deemed to her upon marriage the domicile of the husband.
This court held the same in Khoo Kay Peng v Pauline Chai Siew Phin. 37 Yet modern in the interplay of the law of domicile as witnessed upon divorce. Whereby the LRA provides a woman exception to these general principles in cases where the husband by one means or another loses his domicile; maybe by being deported. 38 It is also an established principle that the threshold for determining domicile of choice goes beyond a balance of probabilities. In practice the law of domicile can’t be said to be exactly what the theory aspect forecasts. This is because whereas the written law is relatively clear, challenges of interpretation leave much at the mercy of courts resulting to something close to arbitrary application of the law by courts.
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