REPORTS OF COMMITTEES

LAW COMMISSION WORKING PAPER No. 88*: THE LAW OF DOMICILE THE present rules on domicile are excessively complicated, unjustifiably artificial and lead to uncertainty of outcome in the individual case. Reform is obviously necessary. At the same time it has to be remembered that these rules have great practical significance. The validity of a will, the legitimacy of a child, the liability to pay English taxes, the ability of an English court to take divorce jurisdiction, may all hinge upon the court’s finding as to where a person is domiciled. Changes in the rules on domicile could mean, for example, that foreign business men living in England could suddenly become subject to English taxes. Previous attempts to remedy defects in the rules ended in failure’ because the proposals were thought to be too radical. The Law Commission, after confirming the utility of domicile as a connecting factor,’ has attempted to cure the defects in the present law, but without raising the fears of international businessmen that their domicile will be altered. The success or failure of this Working Paper3 is going to be judged partly in terms of whether it gets rid of the flaws in the present law and partly in terms of whether it goes far enough in creating rules on domicile appropriate for the end of the twentieth century.

Abolition of the Domicile of Origin Instead of there being domiciles of origin, dependence and choice, with different rules for each, it has been proposed4 that there should simply be rules for ascertaining the domicile of children and adults. At present the domicile of origin is separate from the domicile of dependence. The Law Commission decided upon the most appropriate rules for ascertaining domicile during childhood, realised that these rules could also be used for fixing the domicile at birth, and concluded that two separate sets of rules were no longer nece~sary.~

Whilst a great improvement in the law, this would not, on its own, get rid of the need for a special category of domicile, whether you call it the domicile of origin or the domicile at birth. The domicile of origin has a special tenacity and a power to revive whenever a person has abandoned one domicile without acquiring

~ ~~~~

’ See paras. 1.6-1.9 and The Private International Law Committee’s First (1954) Cmd. 9068.

* See Part 11.

‘ See para. 4.22. ’ Paras. 4.1-4.22. This follows the New Zealand position, see the Domicile Act

And The Scottish Law Commission Consultative Memorandum No. 63.

See Part IX for a summary of the proposals.

225

Report

1976.

226 THE MODERN LAW REVIEW [Vol. 49

another. The L,aw Commission has proposed depriving the domicile at birth of its special status. It recommends that no higher or different quality of intention should be required when the change of domicile is from one received at birth than from any other domicile6 and that the doctrine of revival be replaced by a rule that an established domicile continues until a new domicile is acquired.'

Underlying these proposals is a concern to stop artificiality and uncertainty in the law of domicile.* There is also a desire to reduce the complexity of the rules. In one bold stroke a complete set of rules dealing with ascertaining the domicile of origin disappears, as does the gloss on the general rules on acquisition which gives the domicile of origin its special status. The rules on revival would be deleted, and replaced by a continuance rule which is much simpler to understand and apply.

This still leaves major questions to be answered in relation to children and adult^.^

The Domicile of Children The Law Commission had to decide whether children should continue to be (dependent on their parents for their domicile during childhood, or whether children should have an independent domicile, taken by reference to, e.g. their habitual residence or the country of their closest connection" The Working Paper points out that dependency may look unrealistic in cases where the link with the parent has been weakened. On the other hand, an independent domicile can mean in some cases that a child has a domicile different from that of his parents and in a country where the parents would not wish themselves or their child to be domiciled.

The proposals The Working Paper has proposed a middle route whereby a child should be dependent on his parents where the link with the parents is continued, but, for the first time, the child should have an independent domicile when the link with the parents is weakened.

Three rules are proposed. The first is that if the child has a home with both parents his domicile should be the same as and change with the domicile of his parents." There is no difficulty with this proposal so long as the parents have the same domicile. Where this is not the case a decision has to be made as to which parent the child should take his domicile from. After considering

Para. 5.17.

See generally paras. 5.9, 5.165.22. There are also problems with an incapax (see Part VI), Federal States (Part VII),

and with transitional provisions (Part VIII).

' Paras. 5 .165.22.

lo Paras. 4 . 1 4 . 4 . l1 Para. 4.5.

MAR. 19861 REPORTS OF COMMI'ITEES 227

various alternatives the Working Paper recommended an arbitrary rule that the child should take his domicile from his mother in this situation.'*

The second rule follows suit by providing that where the child has his home with only one parent his domicile should be the same as and change with the domicile of that parent.13

The third rule provides that in any other case the child should be domiciled in the country with which he is for the time being most clearly ~0nnected. l~ It covers children who do not have a home with both or either parent, e.g. orphans, abandoned children and children living apart from parents under some private or official arrangement. It is not clear if it covers a child who runs away from home. If it does, this raises the possibility of a child under 16 choosing his own domicile by establishing a close connection with a country.

The rationale of the proposals The Law Commission admitted that the number of children whose domiciles would be altered under these proposals is likely to be small. Nonetheless, they justified changing the present law on the grounds that it should not distinguish between children on the basis of legitimacy and should be ~imp1ified.l~ The critieria under the proposed rules are sufficiently all embracing to cover situations which require special provision under the present law, e.g. where the child is a foundling, the father dies during childhood, or the parents are living apart.16 The criteria adopted even cover the situation where a child marries under the age of 16 and no provision for this was needed under the three r~1es . l~ The proposals are also such that they are suitable not only for the domicile during childhood but also at birth, thus allowing abolition of the domicile of origin.'* The end result is a dramatic reduction in the number of rules on domicile.

What is put in the place of the old law is simple to state and to apply. Any suggestions for qualifications to the rules were ruthlessly put aside. There was said to be no need for a reservation where an illegitimate child has a home with the father,19 nor for protective provisions allowing the general rules to be overridden by a parent ,20

Paras. 4.6-4.9. I3 Para. 4.10. This follows The Domicile and Matrimonial Proceedings Act 1973, s.4.

Would the proposal cover a child kidnapped by one parent and taken abroad to a new "home"?

I4 Paras. 4 . 1 1 4 1 7 . Various alternatives were considered and rejected. Is Para. 4.18. On ending discrimination see also Law. Corn. No. 118 (1982) on

Ille 'timacy, particularly Part XIII. P Para. 4.18. Paras. 4.31 and 4.32. Para. 4.20.

I9 Para. 4.10. Dealing with the problem of election raised in Re Beaumont [1983] 3 Ch. 490. See

paras. 4.23-4.29.

228 THE MODERN LAW REVIEW [Vol. 49

or by the courts,21 nor an exception allowing an independent domicile for all mothers, regardless of age.”

Does this get rid of artificiality? The role of domicile is to act as a connecting factor, providing a link between a person and a country, which inter alia justifies applying that country’s law to his personal life. The proposals seem to forget this and rely too heavily on the traditional idea of dependence on a parent. They make allowance for the situation where there is no strong link with the parent, but not for the situation where a child may have a link with his parents but no real connection with his domicile. The Working Paper contains an example of this.23 Scots domiciled parents go to work in Iran, live there for many years and have a child. The Law Commission thought that the child should have a Scots domicile dependent on his parents and to give him an independent domicile would produce undesirable results. In terms of the child’s connections with a country, however, Iran looks a more appropriate domicile than Scotland, a country where the child may never have even lived. The father may even be an Iranian domiciliary, but the child would still be dependent on its Scots mother. The only thing that is undesirable about an Iranian domicile is that Iran is a country which is culturally and politically alien to such a child. Moreover, automatically giving the child a domicile dependent on his parents does not get rid of this particular problem. All you have to do is switch the facts round to see this. If an Iranian couple go to live and work in Scotland, have a child and bring him up there, giving the child a domicile dependent on his parents (i.e. Iranian) would produce the same undesirable results as in the Law Commission’s example. The problem of having a child domiciled in a country such as Iran cannot be effectively dealt with by the rules on domicile, but it can be dealt with by using public policy to refuse to apply Iranian law to the private life of the child. This would leave the rules of domicile free to play their role as a connecting factor. To fulfil this role a child should have a domicile which is appropriate in terms of connections and this may not happen if the child’s domicile is dependent on that of the parent.

The other objection to the doctrine of dependency is that it is unworkable where the parents have different domiciles. Arguments over whether the father or the mother should determine the child’s domicile merely show that neither spouse is the obvious candidate. Inevitably, an arbitrary choice is being made.24

21 See paras. 4.23 and 4.26, dealing with The Private International Law Committee’s

22 See para. 4.33 dealing with the problem of double dependency. See also Palmer,

21) See para. 4.3. Tie-breaking rules were considered, but rejected as an alternative in paras. 4.7-4.9.

recommendation, First Report (1954) Cmd. 9068, Appendix A , Article 4(3).

(1974) 4 Fam. Law. 35, 38.

MAR. 19861 REPORTS OF COMMITTEES 229

An alternative suggestion Children should have a domicile independent of their parents. This would avoid the problems that arise where parents have different domiciles. To make sure that a child is domiciled in a country with which he has a real connection it should be provided that he is domiciled in the country where he has his home. This does not mean that parents would have no say in their child’s domicile. The parents will fix where a child has his home and will therefore indirectly determine his domicile.

Using the home as the criterion avoids discriminating between legitimate and illegitimate children and the complexity of the existing law. The Law Commission’s proposals require the home of a child to be a s ~ e r t a i n e d ~ ~ in order to see whether he has a home with a parent, so that using the home as the basis of the child’s domicile would create no extra uncertainty. Reference to the home would actually simplify the law even more because only two brief rules would be needed. One rule, under which the child is domiciled in the country where he has his home, would cover the situation where the child has a home with both parents (regardless of their domiciles) or with one parent. It would also cover the situation where a child has a home with someone else under a private arrangement, e.g. he lives with his grandmother. A second rule would be that where a child has no home or more than one home he is domiciled in the country with which he is most closely connected.

The Domicile of Adults The question here is when should a new domicile be acquired by an adult? The Law Commission criticised the current rules on acquisition for leading to artificiality, because of the tenacity of an established domicile, and uncertainty in determining where a person is domiciled.26 They saw the tenacity of an established domicile as stemming partly from unduly exacting legal require- ments, the standard of proof required for a change of domicile is unusually high and an intention to reside permanently is particularly hard to show, and partly from the factual difficulty in ever proving a subjective state of mind. The latter in its turn leads to uncertainty of outcome in domicile cases.

The proposals The obvious solution where defects are caused by unduly onerous legal requirements is to alter the rules. The Law Commission has

25 No substantial definitional problems are anticipated, see para. 4.17. Note also that under para. 4.6. it is said that a child should take his domicile from his mother where the parents have separate domiciles because he is likely to have his home with her.

26 Paras. 5.1-5.8.

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proposed that the standard of proof in acquisition cases should be the normal civil standard.” An intention to make a home indefinitely in a country should suffice to acquire a new domicile.= An example was given: if a man makes his home in a country and has no present intention of moving elsewhere, he should be regarded as being domiciled in the country of his residence. The problem of the inherent difficulty in ascertaining a person’s intent is tackled by having a presumption that a person intends to make his home indefinitely in a country in which he has been habitually resident for a continuous period of seven years since reaching the age of 16.29

Do the proposals cure the defects in the law? U n ~ e r t a i n t y ~ ~ : It is questionable whether these proposals will get

rid of the uncertainty in this area. First, the basic problem of ascertaining a person’s intent remains. The courts have always been suspicious of declarations as to intent coming from the person whose domicile is in question. Instead, they have preferred to use the well known technique of inferring a person’s state of mind from his conduct. Unfortunately, conduct may be inconsistent or so limited in nature that it may be impossible to draw any inference from it. Does a presumption as to intention deal with this problem? It will, of course, not apply where a person has been habitually resident in a country less than seven years. The presumption can also be rebutted; in any contentious matter the possibility of doing so is likely to be raised, and with it the question of the person’s intent. Does the task of proving intent become easier because the requisite intention is that of making a home in a country indefinitely? Admittedly, this is a less stringent test than that of an intention to permanently reside. However, it does not help in situations where it is particularly difficult to prove intent. The Law Commission31 envisages the acquisition of a domicile of choice in a case like Ramsay v. Liverpool Royal Infirmary.32 But can it really be said that a person who never thought about his home, and has never done anything from which inferences can be drawn, has an intention to make a home somewhere, albeit only indefinitely? Surely, any intention still requires a positive state of mind.

Secondly, both the new test for acquisition and the presumption are riddled with uncertainty.

(i) the test for acquisition: The Law Commission saw the intention to make a home in a country indefinitely as a more

27 Para. 5.9 and 5.17.

29 Para. 5.11. For an example of where the presumption would be rebutted, see para. Para. 5.10.

5.15. On the undesirability of this see para. 5.8.

3’ Para. 5.10. 32 [1930] A.C. 588.

MAR. 19861 REPORTS OF COMMITTEES 23 1

liberal test than the intention to reside permanently and cited In the Estate of Fuld (No 3) as authority for this approach.33 But this case does not help in interpreting the new formula. It is typical of many where reference has been made to an intention to reside permanently, to an intention to reside for an unlimited time and to an intention to reside indefinitely, yet no attempt has been made to distinguish between these different tests.34 This does not cause any problem under the present law since the emphasis has been on the facts of the case not on the legal test. However, under these proposals, which would be enshrined in a statute, the test for acquisition is likely to be closely examined.

What is required for an intent to make a home in a country? More perplexing, the intention must be to make a home in a country indefinitely. This is concerned with evidence against acquisition. When is such evidence fatal? The Oxford English Dictionary defines indefinite as “undefined,” “unlimited,” “vague,” “of indetermined extent.’’ What of the person who is definitely going to leave in the future, but has not fixed a time or an event upon which this will happen? The extent of the stay is not determined. On the other hand, there is nothing vague about the intention to leave, it is a definite intention. Also what will happen where a person has definite plans to leave but departure is contingent on some external event, e.g. his wife predeceasing him? The Working Paper does not say whether you can turn to the existing law on unlikely c~ntingencies.~~

(ii) the presumption: It is not always going to be easy to ascertain a person’s habitual residence. The Law Commission preferred to base the presumption on this rather than on the home, because they thought there might be problems in ascertaining the home, particularly with regard to intent, and habitual residence would build upon well established foundations in private international law.36 But habitual residence is a term of art and one which does not yet have a clear meaning. The presumption is designed to avoid having to ascertain a person’s intent but often, when ascertaining habitual residence, you cannot escape from this, e.g. where there is a period of absence from a country during the alleged seven years habitual residence.37 There is also uncertainty over when the presumption can be rebutted. This will depend on

33 [1968] P.675, and see paras. 5.6 and 5.10. Both New Zealand (Domicile Act 1976 s.9) and Australia (Domicile Act 1982 s.10) use the term “indefinitely” in respect of the re uisite intention. 9( Compare the judgment of Scarman J. at pp.682, 684 and 685. See also Udny v.

Udny (1869) L.R. 1 Sc. and Div. 441, 458; Henderson v. Henderson [1967] P.77, 80. 35 See In the Estate of Fuld (No. 3) [1968] P.675; I.R.C. v. Bullock [1976] 3 All E.R.

353. Re Furse [1980] 3 All E.R. 838 deals with where it is uncertain what the contingency itself is.

3’ See old cases on “ordinary resident,” Sfransky v. Stransky (19541 P.428, and Hopkins v. Hopkins [1951] P.116. See generally on habitual residence paras. 2.2-2.5 and Law Com. No. 48 on Jurisdiction in Matrimonial Causes, para. 4.2.

Paras. 5.12-5.13.

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how an intention to make a home in a country indefinitely is interpreted, e.g. if this is narrowly construed it will be relatively easy to show that a person does not so intend and thereby rebut the presumption.

Tenacity of an established domicile: The Law Commission intend that their proposals should effect a change of domicile in the most extreme example of tenacity, the Ramsay case. But since the person in question had no thoughts one way or the other as to his home, it is arguable that he did not intend to make his home anywhere. The presumption would not help either; although the person lived in England for seven years he would probably not be habitually resident because as a man without thoughts on the matter he did not have the necessary intent to reside.38 The Winans case39 is also commonly regarded as a classic example of the tenacity of the existing domicile. There, the presumption would operate because of the long residence in England, coupled with the intention to reside, but it might be rebutted by the evidence that the eccentric millionaire intended to go back to the United States at some future time.40

Should the proposals go further? The intention of the Law Commission is to provide the minimum necessary to get rid of the worst excesses of the present law rather than a radical reform designed to achieve a free and easy change of domicile. The requirement of seven years habitual residence under the presumption will effectively exclude most businessmen and others on tours of duty abroad, and means that there are not going to be large numbers of people whose domiciles will be altered under these proposals. Underlying this is a desire to protect English expatriates who go to work abroad from having to rebut the presumptiain. It is said that they would expect their private life to still be governed by the law of their homeland, and there may also be a reluctance to subject them to foreign laws, particularly of countries which are culturally and politically alien.41

This view ignores the political and economic changes which have taken place since the days of the British Empire.42 Now that the United Kingdom is a Member State of the EEC the typical expatriate is rnuch more likely to be working in Brussels than Tehran. The whole notion of the homeland has a greatly reduced significance if you consider the United Kingdom as part of a larger European unit. Alongside this has come the growth of multinationals

38 See Cruse v. Chiffurn [I9741 2 All E.R. 940, 942-943. 39 ri9041 A.C. 287.

it has been argued ante that a person could be said to intend to make a home

4' See paras. 5.9 and 5.14. There is the telling example in para. 4.3, referred to ante. '* On support in the Working Paper for the continued relevance of a homeland see

indefinitely in a country in such a case.

paras. 2.5 and 5.18.

M A R . 19861 REPORTS OF COMMI’ITEES 233

which, when it comes to moving their executives, barely recognise traditional state boundaries. The rules on domicile should reflect these changes and should go some way towards the free and easy change of domicile found in federal systems.43 There are however limits as to how far you can go along this road. The easier change of domicile becomes the more opposition is likely to arise from foreign businessmen working in England, who are worried about being subject to English taxes. The ill fated recommendations of the Private International Law Committee show how effective a lobby interested parties can mount against radical changes in the law of domicile.*

Achieving the right objectives Under the present law a court may well find that a person is domiciled in a particular country in order to achieve the right result, e.g. validation of a will.45 One way of arriving at the right result is to find ambiguities in the meaning of the legal test which states the requisite intent for acquisition. If certainty in the law is a prime requisite the drafting of the proposals has to be made tighter.

More certainty can be injected into the concept of an intention to make a home in a country indefinitely by incorporating the present law on unlikely contingencies into the proposals. The problem of deciding whether a person has an intention to make a home in a country could be lessened by providing that the presumption can only be rebutted in the relatively rare case where the person has decided to leave the country where he is residing at some future time and has settled when this will be. It would not suffice to show merely that the person is indecisive in his intentions, or hasn’t even thought about whether he wishes to remain or stay, or where evidence as to intention is unclear. This would also achieve more certainty as to when the presumption can be rebutted.

When it comes to raising the presumpton, it would be better to base this on having a home in a country. Habitual residence undoubtedly involves unsolved definitional problems. Establishing a home could be kept as a question of fact, in answering which intent might be relevant but not vital, and is likely to be easier to ascertain.& This proposal is not as radical as that of the Private International Committee in their First Report since a person would

43 For the U . S . A . see Restatement, 2nd, Conflict of Laws, s.18 and Comment. For Canada see Gunn v. Gunn (1956) 2 D.L.R. (2d) 351. For English awareness of changing conditions, see Brown v. Brown (1982) 3 F.L.R. 212.

See paras. 1.6-1.7 and 5.11. The Private International Law Committee’s First Report (1954) Cmd. 9068, para. 15 and Appendix A , Article 2 contained a presumption based solely on showing a home in a country.

45 See generally, Fawcett, “Result Section in Domicile Cases” (1985) 5 Oxford Journal of Legal Studies, 318.

46 Compare para. 5.12.

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have to have a home in a country for a number of years before the presumption would be raised.

The strict test for rebutting the presumption which is advocated above would get rid of the worst examples of tenacity of an established domicile such as Ramsuy and Winans. But, to go further than this and make it significantly easier to change a domicile it must be made easier to raise the presumption in the first place. Using the concept of the home would help, since it is likely to be easier to establish a home in another country than an habitual residence, as would reducing the requisite period from seven years to four. This would strike the right balance between, on the one hand, catering for the need to make domicile a realistic connection in terms of the context in which the rules on acquisition must operate and, on the other hand, meeting the objections of the English expatriate who is working abroad and the fears of the foreign businessman working in England.

Conclusion The proposals in the Working Paper undoubtedly achieve their aim of simplifying the rules on domicile. The proposal to abolish the domicile of origin is very much concerned with lessening the complexity of the present rules and here the Working Paper is at its most impressive. When it comes to proposing new rules for children and adults other objectives come into play and the proposals are less convincing. With children the proposals are simple but retention in most cases of the traditional idea that a child is dependent on his parents means that artificiality will remain. With adults the proposals are flawed by unanswered definitional problems, which could lead to uncertainty of outcome and no lessening of artificiality. At the same time, the proposals on acquisition should go further and allow an easier change of domicile to reflect the political and economic context in which the rules on acquisition must operate. With both children and adults the rules would be improved by making increased use of the concept of the home.

J. J. FAWCETFt

t Ph.D., Lecturer in Law, University of Bristol.