Conflict of Laws: Domicile

  • Introduction

The circumstances around Leo’s life makes it complex to establish the state in which he was domiciled in at any given point in time. However, it is important to establish the state he is domiciled in at any given period in his lifetime as this legally affects him in a number of ways. A person’s domicile is that place in which he has a principal home and that he intends to return to that home. Domicile can change depending on the intentions of a legal person and thus it is by application of the law that this is established so as to facilitate actions such as taxation on the income raised in a country one is domiciled in, where to file divorce proceeding and also the place of filing probate as regards to a person’s estate. Under English law, domicile is the sole basis of establishing the law applicable to an individual. There are three kinds of domicile which include domicile of choice, domicile of dependence and domicile of origin. At a point in time, one has domicile of origin which can change to any other kind of domicile through the actions of a person.  In Leo’s case, there are legal principles as regards to domicile that can be applied to establish his domicile all through the years of his life. In establishing Leo’s domicile between the years 1918 – 2000, the paper will rely on these common law principles, case law and statutory law.

2.0 Leo’s Domicile

To be able to establish Leo’s domicile all through his life, there are a few principles governing the rule on domicile that must be taken into consideration and afterwards establish his domicile under three different phases of his life. Beginning with the principles;

2.1 Applicable Principles of Domicile

The first principle of domicile that should be taken into consideration is that at no point in time, no one lacks a domicile. This thus goes to imply that from the time Leo was born in the year 1918n upto his death in 2000, he was domiciled in a state which could change from time to time due to various circumstances.

Every person must be subject to some form of personal law and thus to establish the personal law applicable to an individual, it is important to establish his/her domicile as this is the sole determinant as to the kind of law that would apply to such as person.

Secondly, it should be taken into account that there is no single point in a person’s lifetime that he would be domiciled in two different countries. Thus in Leo’s case, establishing his state of domicile would involve the application of law and evidence as domicile is exclusive to one state since  Leo cannot be governed at any given point by the laws of two different states.

The las principle of domicile that will be applicable in this case is that a presumption can never be made of an individual’s domicile, the same must be proven in law and with evidence. This according to Jenkins LJ in the case of Travers v Holley [1953] P 246, the honourable judge stated that change of domicile is a serious step and can only be declared on an individual upon consideration of ‘clear and unequivocal’ evidence.

Establishing Leo’s Domicile as a Child

Leo was born in the year 1918 and thus common law applicable as to the laws of domicile at this time applied to him. There were landmark rulings in the cases of Forbes v. Forbes in the year 1854 and also in Harrison v. Harrison 1953 1 WLR 865 in the year 1953 to the effect that any person considered a minor could not by any means acquire a domicile of choice, this implies by his/her act. The ruling in these cases thus sets us off to establishing Leo’s domicile of origin as at the point of his birth upto the point he attained the age of majority, he was domiciled in his state of origin.

At the point of his birth, Leo acquired a domicile of origin. This by no Act of Leo could be displaced. However, due to the various actions of Leo’s parents, his domicile could change from one state to another and therefore being a domicile of dependence.

It is a rule of common law that upon the birth of child, he/she acquires the domicile of the father. This cannot however be said of Leo’s case as at the point of his birth in the year 1918, George was not really married to Chantal and thus it cannot be said that Leo was domiciled in England.

At the point of his birth in the year 1918, Leo can be referred to as an illegitimate child as the mother was still unmarried and thus he could not be said to have the father’s domiciliary as it is not clear yet whether the two would marry. It is a common law rule of common law established in the case of Johnstone v Beattie (1843) 10 Cl that a child born illegitimate prima facie the mother’s domicile as a domicile of origin and further acquires any new domicile as a domicile of dependence whenever the mother changes from a domicile of origin to a domicile of choice.

Applying the rule in Johnstone v Beattie to this case, Leo was born to a mother who was of French domiciliary and at point where the mother was not married. Thus, he acquires prima facie French domiciliary upon his birth. In the year 1918, Leo was domiciled in France, the country where his mother was domiciled by origin. In cases where the mother would change her domicile by choice before getting married, then he would acquire the same domiciliary by dependence not unless the mother indicates that her son’s domicile of origin suffices. Thus, if Chantal had left France in the year 1922 with the intention of making England her domiciliary by choice, Leo would them become a domicile of England by dependence not unless Chantal indicated that she wishes for him to remain a domiciliary of France.

However, a marriage occurs between Leo’s father, George, and Leo’s mother in the year 1924. This serves to alter Leo’s domiciliary. Applying the rules of common law, a child acquires the domicile of his farther at birth, that is the in the case of a legitimate child. Not until the time of marriage between Chantal and George, Leo was an illegitimate child. However, he becomes legitimate at the point of marriage between his biological father and mother. At this point, Leo ceases to be domiciled in France but is now a domiciliary of England.

Further, the establishment of a family home in England; Finchley, London indicates that Chantal had acquired a domicile of choice and thus Leo’s domicile was bound to change if not to a domicile of origin to coincide with that of his father upon the marriage between his parents then to that of dependence upon the mother acquiring English domiciliary by choice by the mother.

Even though Leo’s mother got married to his father and settled in England, Leo was sent to Spain to live with his aunt and Uncle. This however do not change his domicile as he remains domiciled in England as a domiciliary by origin owing to the fact that his father is also domiciled in England.

There was also an arrangement between Leo’s Aunt and Uncle and his parents that he be allowed to visit England for a moth in every year. This kind of arrangement also confirms Leo to be a domiciliary of England as under English common law, a child who hares time in his parents homes, whether married or separated acquires the father’s domiciliary as long as such an arrangement suffices. Since Leo’s parents lived together and he visited them for a month every year from Madrid, he was domiciled in England as this was the country in which his father was domiciled in.

Sadly, Leo’s parents separated in the year 1930 and both remarried afterwards, complicating the determination of Leo’s domicile as at this time, he had barely reached the age of majority.

However, common law dictates that upon separation of parents, a child’s domicile is determined by the domicile of the parent with whom they choose to settle with. This becomes the child domicile of dependence and changes the domicile of origin incase the child doesn’t stay with the father or incase the father moves into another country which then becomes a domicile of choice.

If upon the separation, Leo had moved to Boston, the United States with his father, then he would still be a domiciliary of England as his father had no intentions of settling there and had clear intentions of returning to his permanent home in Oxford, England. Thus his domicile remained in England. However, if Leo chose to move with his mother to Vancouver, Canada, then his domicile would change and he would be a domiciliary of Canada by dependence as this would be his mother’s new domicile by choice as she chose to remarry and settle in Canada.

By the age of seventeen years, at the time his mother was moving to Canada to settle down upon remarrying and his father was already in Boston with his new wife, Leo was in Madrid and had not moved in to establish a home with either of his parents. This thus disqualifies him from acquiring domicile of either the United States of America or Canada as a domicile of dependence. The common law rule as to this regards is that upon the separation of a child’s parents and the child ceases to have home with any of his parents, their last domicile of dependence suffices. In Leo’s case, his was last a domiciliary of England and this was domicile of origin as both his mother and father lived in England, the country of his father’s domiciliary by origin. England was also the nation of his mother’s domiciliary by choice and this made him become a domiciliary of England by dependence.

Leo’s Domicile as an Adult

At the time Leo was joining Spanish army at the age of eighteen, he was a domiciliary of England and this was his domicile of origin as his biological further passed this to him upon marriage to his mother in the year 1924 and this did not change even after the separation of his parents. According to the rule in Bell v. Kennedy, domicile of origin can never be done away with by any doing of the bearer or even abandonment by the bearer and the same will operate with or without the bearer’s positive wishes and that the same can only be replaced by the bearer gaining domicile of another state either by choice or dependency.

Referring to the rule in Travers v Holley, where it was stated that domicile of a person cannot be presumed and that change in domicile can only be established by the means of unequivocal evidence, it becomes a rather difficult task in establish the domicile of Leo after Joining the Spanish army upon attaining the age of majority.

It is a general rule under common law unless an individual makes clear their intention of changing domicile from one state to another, they do not become a domiciliary of another state by the act of joining the army of that state. When this persons are sent out for military duty to other states, they also do not lose their domiciliary and are also not barred from establishing new domicile in the countries in which they are sent to duty.

At the point where Leo joins the Spanish army, he is a domicile of England. Joining the Spanish army as an action in its own merits does not disqualify Leo from being an English domiciliary. However, it can be established to the contrary that Leo had every intention of being domiciled in Spain upon attaining the age of majority and multiple factors can be taken into account to establish indeed that Leo became a Spanish domiciliary by choice.

In the case of Udny v. Udny, domicile of choice was described by the honourable Lord Westbury as an inference which the law draws from the reality of someone creating his chief or sole residence in a certain place; and with every intention to reside at that particular place for unpredictable and unlimited peace of time.

One can only gain domicile of choice upon attaining the age of majority and also being of sound mind, Leo qualified for all this. Even though he did not state out rightly his wish to be domiciled in Spain, the same can be drawn by the inference of the law, as to the circumstances surrounding Leo at that time.

Leo had stayed in Spain for the better part of his life as a child even though he was domiciled in England. Upon attaining the age of majority, he decided to live in Spain and not go to his country or domicile and further join the Spanish army. Having stayed in Spain as a child and joining The Spanish army, it conveyed his intention to stay in Spain as a Spanish domiciliary for unlimited period of time. Since the intention and the Act can be established at this point, it can be said that Leo changed domiciliary from English to Spanish upon attaining the age of majority and joining Spanish army.

The above implied can be supported by rules of common law on the domiciles of those who are in the armed forces. In as much as domicile of origin cannot be changed unless intention is clear even for those who join foreign services, there are two exceptions to this rule. The first exception is that domicile cannot be implied if one is not in the foreign service of the state of domicile by origin and secondly that the office held in service is not in relation to the state of domicile of origin.

In Leo’s case, he was domiciled in England as a minor and entered Spanish service upon attaining the age of majority. He did not serve in the Spanish army as a foreign contingent of the English military service but rather as a Spanish soldier governed by the rules of Spain, in this case thus, Leo was a domiciliary of Spain by choice and thus altered his domiciliary by origin to England.

During his military service, Leo was posted to other countries as a Spanish service man and these included jurisdictions such as the Belgian Congo, France, Russia and India. This may raise questions of his domicile; as to whether it remained in Spain or switched to the various countries. In such cases, Leo was a contingent of Spanish Foreign Service and thus he remained domiciled in Spain. Not unless his intention to move to either of the nations as a domiciliary can be established. However, there is no intention that can be established in this case and further there is no mention of the act of moving into any of these nations to settle as for an unlimited period of time as a requirement for establishing domiciliary by choice.

Leo left Spanish army to return to France where he was born and the country where he was first domiciled in. He joined French resistance movement and helped oust the Nazi rulers in France. At this point multiple factors can be applied to establish whether he had changed his domicile from Spain and was now domiciled in France by choice.

The first factor to consider will be his absence from Spain. If in a calendar year, he is absent in Spain for a period of more than three hundred and thirty five days, then it would be clear that his chief residence is not in Spain and thus establishes the intention to have France as the country of domicile. In this case, he took fourty solid years in France and thus establishing France as the place of his chief residence. This coupled with the fact that there is no mention of any permanent dwelling established by Leo in Spain is enough evidence to establish that he intended for France to be his new place of domicile. His business after the war was also registered in France and had headquarters in Paris, thus domiciled in France.

Leo returned to England and established another newspaper business which was domiciled at the place. He left France tired of the fame he gained, of the country and of the people. This indicated that he had no intention of returning to live permanently in France and thus points out to England being the new nation of domicile by choice for Leo. In as much as he took trips to France to visit his sons, it does not change anything as the intention is clear that England is the preferred permanent residence and he intends to go back. In this case therefore, he permanently resides in England and thus a domiciliary of England by choice.

Upon retiring and going to Spain in the year 2000, Leo does not change his domicile and remains a domiciliary of England as his intentions are clear that at one point in time, he wished to return to England. This indicated by his action of returning to England upon discovering that he had just a few months to live and thus remained an English Domiciliary upto the point of his death.


To conclude, Leo was born as a French domiciliary as her mother at the time was domiciled in France and was not married to his father. This however change upon the marriage of his father to his mother in 1924 and the nations of his domicile change as discussed until he died an English domiciliary.






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