Domicile in Private
International Law
APRIL 25, 2016
Ankush Chattopadhyay (13LLB011)
3rd Year, School of Law, The North Cap University

1
Contents
1. Acknowledgement………………………………………………………2
2. Introduction……………………………………………………………..3
3. Definition of Domicile………………..…………………………………..4
4. Ascertainment of Domicile…….………….…….……………………….9
5. Domicile and Nationality……………………………………………….10
6. Rules and Kinds of Domicile…………………………………………...12
7. Conclusion………………………………………………………………15

2
Acknowledgement
This research was supported by the esteemed teachers of our institution as well as all the
students who are a part of the team. I am thankful to our colleagues who provided expertise
that greatly assisted the research, although they may not agree with all of the interpretations
provided in this paper.
I am also grateful to Prof. Neha Saini for her immeasurable assistance in teaching the subjects
and in clarifying all the doubts and questions we posed.
I have to express our appreciation to the Law Faculty of The North Cap University for sharing
their pearls of wisdom with us and for making and forging us not only into better human beings
but also into knowledgeable professionals.
I am also immensely grateful to all my peers and friends for their comments and their
continuous support without which it would have been a lot harder and nigh impossible to finish
this manuscript.
Althoughthere were numerouspeople andentitieshelpingandassistingusthroughourjourney,any
errors that have been committed are my own and should not tarnish the reputations of these
esteemed professionals.

3
Introduction
Differences which exist between two or more legal systems, provide the theoretical foundation
for the subject known as conflict of laws. Every legal systems has rules which tends to
distinguish it from others. With particular regards to matters considered as bothering on an
individual’s civil status different legal system have established rules as to the law, which ought
to govern in those cases. These matters usually involve those aspects of the individual’s
interests for which resort can be had to a single system of law, in making a decision as to an
appropriate law that ought to govern.
In order to identify the specific system of law that should govern these issues with regards to a
particular or individual the laws of different countries have established diverse criteria. While
in England domicile is the rule, in Italy and some other European countries it is nationality.
Some other systems tends to combine both criteria1. As part of our received English law,
domicile is the criterion recognized in the Nigerian law
In this project, the various definitions of domicile shall be examined, the English conception
of domicile, domicile and nationality, how domicile can ascertained and the forms and types
of domicile.
1 Agbede.I. O: Themes on conflicts of laws, Ibadan. Shaneson , 1989. P 49

4
Definition of Domicile
It is not an easy task to define the concept of domicile because, the concept is not uniform
throughout the world therefore it is subject to diverse meanings. According to Sir George
Jessel;
“The term domicile is incapable of definition2”
Morris also has asserted that
“Domicile is easier to illustrate than it is to define3”
This is probably due to the fact that traditional definition has become rather obsolete as a result
of judicial modification, which has attended the concept overtime. The Oxford Advance and
Learners Dictionary define domicile as
“The place where somebody lives, especially when it is stated for official or legal
purpose4”
The Black Law Dictionary defines the concept of the domicile as
“A person’s legal home. That place where a man has his true, fixed and permanent
home and principal establishment, and to which whenever he is absent he has the
intention of returning5”
Lord Cranworth attempted a definition sometimes ago in Whicker v Hume6 to the effect that;
“By domicilewe mean home, the permanent home, and if you do not understand your
permanent home I am afraid that no illustration drawn from foreign writers or
foreign language will very much help you to it”
2 Doucat v Geoghegeon (1878) L. R. 9 Ch. D at 256
3 Morris, Conflict of laws, 4th ed by J. C McLean, Sweet and Maxwell, 1993, p.126th edition
4 6 th edition by Sally Wehmeier (2000)
5 Bryan A. Garner: 8th edition Thompson West 2004
6 (1958) H L C 124 at 160

5
This definition by Lord Cranworth is obviously simplistic from the subsequent judicial
developments on these issues. In fact there is an opinion that the definition by Lord Cranworth
is, far too simplistic and indeed somewhat misleading7
Lord Cranworth’s definition errs on the side of simplicity because there are circumstances in
which a person may not be residence in his place of domicile. The fact that one has lived in a
particular place for several years is irrelevant where there is intention to remain there8.
Morris also objects to this definition on the ground that a person’s domicile may not always be
the permanent home. In fact according to him;
“A person may be domiciled in a country which is not and never has been his home;
a person may have two homes but he can only have one domicile.”
He concluded that there is often a wide difference between the English concept of domicile and
population of a home.
Judicial authorities have equally shown that to acquire domicile according to the received
English law, it is necessary to establish residence in a place and an intention to reside there
permanently. The English courts have with complete justification established the principle of
definition of domicile for the purpose of English rule conflict of laws according to the concept
in English law Nevertheless it is clear from decided cases that to acquire domicile in territory,
according to the received English law, it is necessary to establish residence and an intention to
remain there permanently (or indefinitely). A domicile can only be acquired by the concurrence
of these two factors. However, an intention of indefinite residence is not equivalent to
permanent residence if it is contingent upon uncertain event.
Thus in Moorhouse v Lord9 it was held that:
“The present intention of making a place a person’s permanent home exists only
where he has no other idea than to continue there without looking forward to any
event, certain or uncertain which might induce him to change his residence. If he
has in his contemplation some event upon the happening of which his residence will
cease it is not rather a present intention of making it a temporary home, though for
a period indefinite and contingent.”
7 Collier J. G: Conflict of laws, 2nd edition, Cambridge, C. U. P 1994. P 40.
8 White v Tenant (1880) W L R 790 and IRC v Bullock (1976) W L R 1178 24
9 (1863) 10 H L Cas 272 at 285-286

6
This rule of domicile might have worked well during its formative (mid-Victorian England)
era of comparative certainty, simplicity and legalism but in the contemporary world of tension
and increased mobility, few things for human affairs can be certain least of all is one’s intention.
As stated by Cheshire10 :-
“Singular indeed would be the man who could unreservedly warrant that whatever
good or evil might befall him he would never return whence he came”
In Graveson’s11 view, this definition no longer fits the complexity movement and sophistication
of modern life in which many of our best intentions become temporary though frustrating
circumstances. Rather curiously, this unsatisfactory definition of the English concept of
domicile has been in Fonseca V Passman12, Thomas. J. held that:
“To establish a domicile in Nigeria the mere factum of residence here is not
sufficient…. There must be unequivocal evidence of animus manendi or intention to
remain permanently”
More curiously, however is the failure of the Nigerian judged to distinguish between inter-state
and international situation. For instance, in Udom v Udom13, Coker. J. who was concerned with
an inter-state conflict problem said:
“The subject must not only change his residence to that of a new domicile, but also
must have settled or resided in the new territory cum animo manendi The residence
in the new territory must be with the intention of remaining there permanently to
reside, the factum is the actual residence.”
This dictum appears to ignore the warning of Beale14 that the circumstances of life in a country
must have weight with the judge in determining the meaning of domicile.
“In USA there is a habit of moving from place to place; in England the habit is to
remain indefinitely in one place. The rule of English law will have many Americans
without a domicile of choice.”
10 Cheshire: Private International Law (7th ed) at 145
11 Graveson: Conflict of laws (1969) p. 207
12 (1958) WRNLR 41 at 42
13 (1962)LLR.112 at 117
14 Beale, J.HA. :Treatise on the conflict of law (1935),P.106

7
American judges are equally conscious of the inconvenience that will result from adopting the
English rigid definition of domicile. Thus, Parker. J. held in Putman v Johnson15 In this new
and enterprising country it is doubtful whether one half of the young men, at the time of their
emancipation, fix themselves in any town with an intention of always staying there. They settle
in a place by way of experiment to see whether it would suit their view of business and
advancement in life, and with an intention of removing to some more advantageous position,
if they should be disappointed. Nevertheless they have their home in their chosen abode while
they remain.
Where in accordance with Coker. J’s. dictum shall we locate the domicile of the nomadic cattle
Fulani’s? it is common knowledge that an Ibo man, for example, who was born in a northern
state, who has been living in the in North all his life and who has no fixed intention as when he
would leave there, would nonetheless entertain a hope, however remote, of returning to the
East “dead or alive”. It may be appropriate to recall, at this junction, the decision in a post
reception English case, where it was held that a person who intended to reside in a country
indefinitely might be domiciled there although he envisaged the possibility of returning one
day to his domicile of origin.
In Graveson’s16 view, we must not deny local domicile to a man who has settled in a place
without intending to remain there as long as circumstances allow him to do so. In view of the
limited function of domicile in matters of inter-state conflict problems in Nigeria. It is
suggested that habitual residence in any constituent state should be sufficient to found a
domicile in such a state.
This suggestion appears more practical and more consonant with the social conditions in
Nigeria than the dictum in Udom v Udom. In a union where inter-state 28 movements are
unrestricted, it will be difficult, if not impossible to find people who will wish to reside in a
particular state for better for worse.
Moreover, it is in best interest of Nigerian people to discourage ethnic cohesion and minimizing
its attendant evils. Such a social policy ought to influence judicial decisions, but the decision
in Udom v Udom domicile does not appear to take account of this policy.
15 10 Mass 488,501(1813)
16 Graveson,op,cit,Five Sheffield Jubilee Lectures at 97

8
As for the necessary requirements for establishing a domicile in Nigeria at the international
level, it would be better, one imagines, to impute an intention to be domiciled in Nigeria to
person’s who are habitually resident in Nigeria. This suggestion is designed to aid the courts
in ascertaining a person’s v. therefore, if there is evidence convincingly showing that a
propositus has no such intention, he should he should be denied a local domicile.
The object of determining a person’s domicile is to connect him with some legal system for
certain legal purposes. To establish this connection it is sufficient to fix his domicile in some
“country” in the sense of the conflict of laws .e.g. England or Scotland, California or New
York. It is not necessary to show in what part of such a country he is domiciled17, but it is
usually insufficient to show that he is domiciled in some composite state like the United
Kingdom, the United States, Australia or Canada with, each of which comprised several
“countries” in the conflict of laws sense. A person who emigrates, Scotland or to Canada with
the intention of settling either in England or British Columbia, does not change his domicile
until he has decided in which country he intends to settle and has actually settled there18.
17 Re craignish(1892)3 Ch 180,192
18 Att.Gen For Alberta v Cook (1926) AC 444

9
Ascertainment of Domicile
The question as to whether a person has established factual residence in a particular country
raises little or no problem in practice. However, the thorough manner in which the English
courts attempt to discover the necessary intention has produced absurd results.
These courts have found it necessary to consider such difficult as a person’s taste, habits,
conducts, action, ambitions, health, hopes, projects and so on…there is no act, no
circumstances in a man’s life however trivial it may be in itself, which ought to be left out of
consideration…‟But these factors are, one imagines, hardly suitable for judicial enquiry. What
is rather absurd in the whole exercise is that circumstances which are treated as decisive in one
case may be disregarded in another or even relied upon in support of a different conclusion.
No circumstances of group of circumstances appear to furnish a definite criterion of the
existence of the necessary intention.
The latitude of discretion which the courts reserve to themselves makes their decisions appear
arbitrary and very often inconsistent. The result is that a person’s domicile may remain
uncertain throughout his life. Must our domicile asks Gravenson continue to be kept a legal
secret from us until we either invoke divorce jurisdiction or die?
A desirable approach for the Nigerian courts in this regards is to tackle this problems with the
presumption that a person intends to reside indefinitely in a country where he is habitually
resident.
This presumption which should be rebuttable will, it is hoped, obviate the very complicated
problems involved in discovering a person’s exact intention when he is absent from jurisdiction
or when (as is usually the case) he is already dead.

10
Domicile and Nationality
The change from domicile to nationality on the continent of Europe started in France with the
promulgation of the code Napoleon in 1804. One of the principal objects of the codifiers was
to substitute a uniform law throughout the whole of France for the different coutumes of the
French provinces. In matters of personal status these coutumes applied to person’s domiciled
within the province, whenever they happened to be. It was natural that the new uniform law
should apply to Frenchmen everywhere, 31 Article 3 (1)19 of the civil code provided that the
laws governing the status and capacity of person’s govern Frenchmen even though they are
residing in foreign countries. No provision was expressly made for the converse case of
foreigners residing in France, but the French courts held that in matters of status and capacity
they too were governed by their national law. The provisions of the French code were adopted
in Belgium and Luxembourg and similar provisions were contained in the Austrian code of
1811 and the Dutch code of 1829.
The change from domicile to nationality on the continent of Europe was accelerated by
Mancini’s famous lecture he advocated the principle of nationality on the ground that laws are
made more for an ascertained people than for an ascertained territory. A sovereign (he said) in
framing laws for his people should consider their habits and temperament, their physical and
moral qualities and even the climate, the temperature and fertility of the soil. This was heady
wine for a people preparing to throw off a foreign yoke and unify all the small state of Italy
into a new nation. Under Mancini’s influence article 6 of the Italian civil code (1865) provided
that “the status and capacity of person’s and family relations are governed by the laws of the
nation to which they belong”. Mancini’s ideas proved extremely influential outside Italy too,
and in the second half of the nineteenth century the principle of nationality replaced that of
domicile in code after code in continental Europe, until today only Norway and Denmark retain
the principle of domicile. The result is that the nations of their world have become divided in
their definition of the personal law; and it is the fact more than any other which impedes
international agreement on uniform rules of the conflict of laws. What then are the arguments
in favour of nationality and domicile as the personal law?
19 Code Napoleon 1804

11
The advocates of nationality claim that it is more stable than domicile because nationality
cannot be charged without the formal consent of the state of new nationality. However, as has
been well said, “the principle of nationality achieves stability, but by the sacrifice of a man’s
personal freedom to adopt the legal system of his own choice. The fundamental objection to
the concept of nationality is that it may require the application to a man, against his own wishes
and desires has perhaps risked his life”.
It is also claimed that nationality is easier to ascertain than domicile because it involves a formal
act of naturalization and does not depend on the subjective intentions of the propositus. This is
undoubtedly time, though there may be difficult cases of double nationality or of
statelessness20. But it does not follows that the most easily ascertained laws is the most
appropriate law. Many immigrants who have no intention of returning to their country of origin
do not trouble to apply for naturalization. It would have been ludicrous to say that only the
English courts, and not the courts of California, had jurisdiction to grant a divorce to the film
actor Charlie Chaplin- or, for that matter, that only the American courts had jurisdiction to
grant a divorce to Mr. Winans.
The decisive consideration for countries like the United Kingdom, the United State, Australia
and Canada is that, save in a very few respects, there is no such things as United Kingdom,
American, Australian, or Canadian law. Since the object of referring matters of status and
capacity to the personal law is to connect a man with someone with the legal system for many
legal purposes, nationality breaks down altogether if the state contains more than one country
in the sense of the conflict of laws. This is something which continental lawyers seem unable
to comprehend. They sometimes speak as though the United kingdom and the United States
are as legally backward today as France was before 1804 or Italy before 1865, simply because
there is a diversity of legal systems throughout the state.
20 Beckett(then second legal adviser to the foreign office) 1939

12
Rules and Kinds of Domicile
There are five general rules or principles to be discussed
1. It is a settled principle that no person can be without a domicile21. The rule springs with
some system of law by which a number of his legal relationships may regulated. “it is
a settled principle said Lord Westbury in leading case22, that no man shall be without a
domicile and to secure this result the law attributes to every individual as soon as he is
born the domicile of his father, if the child be legitimate, and the domicile of the mother
if illegitimate,. This has been called the domicile of origin, and involuntary23”
Also to a foundling, the place where is found will be his domicile. This prevail until a
new domicile has been acquire24, 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.
2. A person cannot have two domiciles. Since the object of law in insisting that no person
shall be without a domicile is to establish a definite legal system by which certain of
his rights and obligations may be governed, and since the fact and events of his life
frequently impinge upon several countries, it is necessary on practical grounds to hold
that he cannot possess more than one domicile at the same time, at least for the same
purpose.
Domicile signifies connection with what has conveniently been called a “law district”25
i.e. a territory subject to a single system of law. In the case of a federation, where the
legislation authority is distributed between the state and federal legislatures, this law
district is generally represented by the particular state in which the propositus has
established his home26. A resident in the USA, for instance is not normally domiciled
21 Bell v Kennedy(1868) LR 1 Sc & Div 307
22 Udny v Udny (1869) L.R. 1 Sc 441, 458
23 Westlake :S 248; Dicey and Morris P.126
24 IRc v Bullock(1976) 1 WLR 1178 at 1184
25 Dicey and Morris, pg 118- 119
26 Odiase v Odiase (1965) NMLR 196

13
in the USA as such, but in one of its states. Nevertheless, the doctrine of unity of
domicile one man, one domicile- may be modified by federal legislation. Thus the
family law 1975, which has force throughout the commonwealth of Australia, provides
inter alia that proceedings for a decree of dissolution of marriage is “domiciled in
Australia”27. Thus, the effect within a limit field is to create an Australian, as distinct
from a state, domicile and, indeed, one that, because of statutory amendments in this
limited content, is different from domicile in a state for other purpose, e.g. succession28
3. The fact that domicile signifies connection with a single system of territory law does
not necessarily connote a system that prescribes identical rule for all classes of persons.
It may well be that in a unit such as India different classes of the population according
to their religion, race or caste, but none the less it is the territorial law of India that
governs each person domiciled there, notwithstanding that Hindu law may apply to one
case, Muslim to another.
4. An existing domicile is presumed to continue until it is proved that a new domicile has
been acquire. Hence, the burden of proving a change of domicile lies on those who
assert it. Conflicting views have been expressed as to the standard proof require to rebut
the presumption. According to Scarman. J., the standard is that adopted in civil
proceeding, proof on a balance probability not that adopted proof beyond reasonable
doubt in the criminal proceedings.29 On the other hand, according to Sir. Jocelyn Simon
P., “the standard of proof goes beyond a mere balance of probabilities30”. This
observation no doubt stems from such cases as Winans v A.G31 which appear to regard
the intention in favouring of retaining the domicile of origin as an almost irrefutable
presumption Scarman. J., however, added that, two things are clear-first, change, the
domicile of origin persists; and secondly, that the acquisition of a domicile of choice is
serious matter not to be lightly inferred from slight indications or casual words”.
27 Family Law Act 1975, s 39(3) (b)
28 Lloyd v Lloyd (1961) 2 FLR 349
29 Re Fynn (No 1 ) (1968) 1 WLR 103
30 Henderson v Henderson ( 1969) p. 77 at 80
31 (1904) AC 287

14
The presumption of continuance of domicile varies in strength according to the kind of
domicile which is alleged to. It is weakest when that domicile is one of dependency32
and strongest when domicile is one of origin, for “its character is more enduring, its
hold stronger, and easily shaken off.
The law commission’s proposals for the reform of the law of domicile would leave
unchanged the rule the burden of proving the acquisition of a new domicile falls on the
person alleging it. However, the normal civil standard of proof on a balance of
probabilities would apply in all disputes about domicile and no higher on different
quality of intention would be required when the alleged change of domicile was from
one acquired at birth than when it was from any other domicile.
5. For the purpose of a rule of conflict of laws, domicile means domicile in the English
sense. The question where a person in domiciled is determined soled in accordance with
English law. Thus, persons domiciled in England often acquired a domicile of choice
in France without complying with the formalities formerly required by French law for
the acquisition of a French domicile33. Conversely, a person domiciled in e.g. France
may acquire an English domicile of choice regardless of whether French law would
regard him as domiciled in England. There is one statutory exception to this rule.
Section46(5) of the family law Act 1986 refers to domicile in a country in the sense of
that country’s law.
It is too wide a formulation to say that an English court, domicile means domicile in
the English sense. Under the renvoi doctrine, English courts sometimes refers to the
whole law of a foreign country, including its rules of the conflict of laws, and accept a
reference back to English law either because the foreign conflict rule referrers to the
law of the nationality, and the propositus is a British citizen; or because the foreign
conflict rule refers to the law of the domicile, and the foreign court regards the
propositus as domiciled in England. In the latter case, it is not true that domicile in
English court always means domicile in the English sense; but it is still true that it
32 Harrison v Harrison (1953) 1 WLR 865
33 Collier v Rivas (1841)2 Curt 855

15
means domicile in the English sense for the purpose of an English rule of the conflict
of laws.
There are different kind of domicile and they are;
1. Domicile of origin
2. Domicile of choice
3. Domicile of dependent person e.g. domicile of children, married women, persons of
unsound mind and so on.

16
Conclusion
In conclusion of this project, domicile is regarded as a relative term which varies in meaning
according to different situation (for example taxation divorce interstate succession) to which it
is applicable. A judge must however inevitably focus his attention on the concrete problem
before him, otherwise he will neglect the social and economic requirements of the situation.
Also it is hard to believe that judges in this country have not been influenced by an awareness
of the consequences of the finding as to domicile in the particular case before them. There is
evidence that the courts wish to achieve a number of policy objectives in particular, to validate
wills and to tale jurisdiction to grant a divorce whenever possible.
It is easy for courts to achieve the right result by manipulating the process of ascertaining the
domicile, and is a likely explanation of many cases which are otherwise hard to reconcile on
their fact.