THE ENGLISH CONCEPT OF DOMICILE - A RE-EVALUATION

by J.A. Wade *

1. Introduction

2. The statutory changesA. JurisdictionB. Choice of Law

3. The permanent home approach

A. Factum of residence

B. The influence and scope of the animus

4. The reasoning of the Law Commission

5. Conclusions

INTRODUCTION

The formal starting-point for this article is the Domicile and MatrimonialProceedings Act 1973 which came into force on 1 January 1974 and whichmakes significant changes in the law relating to jurisdiction in matrimonialproceedings and the law relating to domiciles of dependency. The true starting-point was with the various Reports and Working Papers of the Law Commissionfor England and Wales which preceded the statute and prepared the way forthe introduction of the changes.

For a long time domicile has been presented as founded upon or representingthe notion of 'permanent home' and this approach, in the context of jurisdic-tion, was indorsed and advanced by the Law Commission. The purpose of thisarticle is to rebut that argument and to show that domicile, developed judiciallyinto a strict form and now indorsed by the legislature in that form withoutchange or amelioration of its essentials, operates as a choice of law device inthe guise of a jurisdiction connecting factor. This guise is not immediately ap-parent for the picture is confused by the many judicial pronouncements des-cribing domicile in terms of 'permanent home', the necessity to establish thefactum of residence before a domicile of choice can be aquired, the existence

* Research Officer in the Private International Law Department, T.M.C. Asser Institute, TheHague.

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of a distinct and separate concept of residence which operates purely as a juris-diction connecting factor and which has no pretensions to be a choice of lawfactor, and the judicial pronouncements that this latter residence is constitutedby the establishment of a 'home'. The employment in the same statute ofdomicile equally with habitual residence as bases of jurisdiction intensifies theconfusion.

The element of device becomes apparent against the backcloth of three*principles' - that status is governed by domicile; that there is a strong inclina-tion against finding for a change of domicile, particularly where the allegedchange is from a domicile of origin to a domicile of choice, which is manifestedby the rules relating to the onus of proof and by the evidence of the cases; andthat where the English court has jurisdiction the English law governs.

A subsidiary theme will become apparent during the course of the followingpages which serves to strengthen the principal theme being advanced — thatwhere there exists an identity of terms employed to connote different conceptsthere arises a confusion between those concepts and a tendency towards anassimilation of meanings with a consequent failure to distinguish clearly betweendifferences of function.

THE STATUTORY CHANGES

In order to place the changes effected by the Domicile and Matrimonial Pro-ceedings Act 1973 in their context it is necessary briefly to outline the previousdevelopments.

A. Jurisdiction

The Matrimonial Causes Act 1857 transferred jurisdiction in matrimonial pro-ceedings from the ecclesiastical courts to the secular courts. The former hadbased jurisdiction upon residence and the Act laid down that the newly createdCourt for Divorce and Matrimonial Causes (s. 6) was to give relief in conformitywith the principles and rules formerly employed (s. 22). However, the Act hadcreated the power to grant dissolution of marriage but had remained silent asto the basis of jurisdiction for the exercise of the new power. In Niboyet v.Niboyet l the Court of Appeal held that there was jurisdiction on the basis ofresidence but in 1895 the Judicial Committee of the Privy Council, in Le Mesu-rier v. Le Mesurier, disapproved of this and advised that,

" . . . according to international law, the domicile for the time being of the marriedpair affords the only true test of jurisdiction to dissolve their marriage".2

1.(1878) 4 P.D. 1.2. [1895] A.C. 517, 540. Adopted, American Law Institute, Restatement of the Conflict ofLaws, (1934), s. I l l , hereafter referred to as Restatement, 1934. See, also, Williams v. NorthCarolina (1945) 325 U.S. 226, 229, "judicial power to grant a divorce . . . is founded on domicile".3. Warrender v. Warrender (1835) 2 Cl. & F. 488.

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Over a relatively short space of time the courts strengthened the former rule ofunity of residence of the spouses 3 so that it became, the domicile of a marriedwoman is the same as and changes with the domicile of her husband 4 , and thatthis was so irrespective of the fact that they were living apart even where thehusband had committed a matrimonial offence which would have enabled thewife to have obtained a decree of divorce or of judicial separation 5 , or wherethe wife had obtained a decree of judicial separation 6 or even a divorce if inthe latter case the court had lacked jurisdiction according to English notions.7

" . . . nothing short of a full juridical domicile within its jurisdiction can justify aBritish Court in pronouncing a decree of divorce . . . There can be only one realdomicile . . . There is no authority for the proposition that husband and wife canhave, while they continue married, distinct domicile . . . If it were otherwise pro-ceedings for dissolving the status of marriage might be carried through in twojurisdictions, possibly with different results 8 . . . while the marriage tie continues[therefore] in the great fundamental issue of status . . . the domicile of the wife isthe domicile of her husband . . ." '

The first major exception to this rule was made by the Matrimonial CausesAct 1937, s. 13 providing that where a wife had been deserted by her husband,or where the husband had been deported from the United Kingdom, and thehusband was immediately before the desertion or deportation domiciled inEngland and Wales, the court had jurisdiction notwithstanding that the husbandwas no longer domiciled in England.10 There had been, and were to be, otherstatutory relaxations of the strict rule but each was of only limited scope anddealt with special war-time or post-war situations or with particular Common-wealth problems. Of these enactments it was said that,

"the express statutory exceptions only serve to emphasise, that the principle isfirmly embedded in English law that jurisdiction to entertain . . . proceedings isfounded on domicile".

However, times were changing rapidly. Thus, the movement of large numbersof refugees and immigrants before, during and after the 1939-45 war served toemphasise that the world had become more shifting and mobile than in thepreceding century and the feeling grew that, whether on the grounds of morals,humanity or convenience, the wife who was living apart from her husbandshould be able to obtain a divorce in the country where she lived. The result

4. In the U.S. it was early decided that an innocent spouse could have a separate jurisdictionaldomicile: Haddock v. Haddock (1906) 201 U.S. 562. The Supreme Court later disapproved ofdrawing such a distinction and allowed separate domiciles per se: Williams v. North Carolina(1945) 325 U.S. 226.5. Lord Advocate v.Jaffrey [1921] 1 A.C. 147.i.Att.Gen. for Alberta v. Cook [1926] A.C. 444.7. Garthwaitev. Garthwaite [19641 P. 356.8. Lord Advocate v. Jaffrey [1921J1 A.C. 147, 152 per Lord Haldane.9. Ibid., p. 168 per Lord Shaw.10. Re-enacted as s. 18 (1) (a), s. 40 (1) (a), s. 46 (1) (a), Matrimonial Causes Acts 1950, 1965,1973 respectively; repealed, Domicile and Matrimonial Proceedings Act 1973, Schedule 6.11. Indyka v. Indyka [1967] 2 A.E.R. 689, 728-29 per Lord Pearson.

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was s. 1 (1) (a) Law Reform (Miscellaneous Provisions) Act 1949 1 2 whichprovided that if the wife was resident in England and Wales and had beenordinarily resident there for a period of three years immediately preceding thecommencement of the proceedings, and the husband was not domiciled inScotland, Nothern Ireland, the Channel Islands or the Isle of Man, the courthad jurisdiction.

These legislative changes of 1937 and 1949 provided for a nexus existingbetween a wife petitioner and the jurisdiction which fell short of being an in-dependent domicile. The nexus that was relevant was either, first (and therewere two conditions to be satisfied), that the wife should have been deserted(the provision as to deportation being of no practical significance) at a timewhen her domicile, i.e., that of her husband, was English, or, secondly, thatthe wife should have been ordinarily resident in England for three years. Thesechanges were certainly far-reaching, sufficiently so for it to be said that domicilethereafter no longer occupied its role of being essential and even, that "Inrespect of one sex [viz. the wife] the rule, so far as it concerns jurisdiction,has now, virtually, ceased to exist".13 This was patently inaccurate. The factthat wives of foreign domicih'aries could obtain decrees after three years'ordinary residence merely exemplified the rule that they could not petition onthe ground of their own independent domicile, (for they were incapable ofpossessing such a domicile), and, further, this obligation to wait for what wasa substantial period of time could be a matter of distinct injustice. This was sowhere the wife otherwise satisfied the requirements of animus and de factoresidence necessary to establish an independent domicile of choice in Englandbut, because of the above rule preventing her from acquiring such a domicile,had to wait for a further period. Such a situation was clearly unjustifiable onjurisdictional grounds alone for the quality of the connection was otherwiseestablished.14

In view of the practice long established in the United States 1 s, and morerecently in Australia, Canada, and New Zealand 1 6 , and considering the viewembodied in the Hague Convention on Recognition of Divorces and Legal Separa-tions 1968 1 7 and the principle of sexual equality contained in the UniversalDeclaration of Human Rights, Article 16 (1) 1 8 , it is not surprising that theLaw Commission observed that England was "in danger of becoming the lastcountry to cling to an obviously anachronistic and unjust rule" 1 9 , and strongly

12. Re-enacted as s. 18 (1) (b), s. 40 (1) (b), s. 46 (1) (b) Matrimonial Causes Acts 1950, 1965,1973 respectively; repealed, Domicile and Matrimonial Proceedings Act 1973, Schedule 6.13. Indyka v. Indyka [1967] 2 A.E.R. 689, 707-8 per Lord Morris.14. See, e.g., Kern v. Kern [1972] 1 W.L.R. 1224, discussed Wade (1973) 36 Mod. L.R. 206.15. See, supra, n. 4.16. See, s. 24 Matrimonial Causes Act 1959; s. 6 (1) Divorce Act 1968; s. 3 Matrimonial Pro-ceedings Act 1963, respectively.17. Article 3 whereby the meaning of habitual residence as employed in Article 2 includesdomicile as that term is used in the State of origin but does not include the domicile of depen-dency of a wife.18. G.A. Res. 217 (HI), adopted Paris, 10 December 1948, GAOR, 3rd. Sess. Part I.19. Law Commission Published Working Paper No. 28, Family Law: Jurisdiction in Matrimonial

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recommended the granting of a separate domicile. The Domicile and MatrimonialProceedings Act 1973 provides that, as from 1 January 1974, the domicile ofa married woman is to be ascertained separately from her husband's for allpurposes. The Act also makes it clear that the established principles for theascertainment of domicile remain unchanged. Section 1 reads -

(1) Subject to subsection (2) below, the domicile of a married woman as at anytime after the coming into force of this section shall, instead of being the sameas her husband's by virtue only of marriage, be ascertained by reference to thesame factors as in the case of any other individual capable of having an indepen-dent domicile.(2) Where immediately before this section came into force a woman was marriedand then had her husband's domicile by dependence, she is to be treated as re-taining that domicile (as a domicile of choice, if it is not also her domicile oforigin) unless and until it is changed by acquisition or revival of another domicileeither on or after the coming into force of this section.

The Act went further than the Law Commission recommendation which wasrestricted to allowing a wife to have a domicile separate from her husband'sfor purposes of matrimonial jurisdiction. As to the general question of whenshould the court take jurisdiction the Law Commission recommended that thereshould be only two bases of jurisdiction, viz., if either party is domiciled inEngland at the commencement of the proceedings or has been habitually residentin England for the preceding one year.20 This was enacted by the Domicile andMatrimonial Proceedings Act 1973, s. 5 of which reads —

(2) The court shall have jurisdiction to entertain proceedings for divorce orjudicial separation if (and only if) either of the parties to the marriage —(a) is domiciled in England and Wales on the date when the proceedings are begun;or(b) was habitually resident in England and Wales throughout the period of oneyear ending with that date.

A similar provision exists for nullity of marriage and for proceedings for presump-tion of death and dissolution of marriage (subsections 3 and 4 respectively).There are a number of important points to note. First, these two jurisdictionbases are exclusive, which means that all previously existing bases are abolished,Le., the 1937 and 1940 provisions as subsequently re-enacted 21, the residenceof both parties 22 or of the respondent alone 2 3 , and, in the case of marriage

Causes (other than Nullity), 1970, para. 40; hereafter referred to as Law Comm. W.P. No. 28.For previous attempts to reform the law see Private International Law Committee, First Report,1954, Cmnd. 9068, paras. 7 (1), 18; Report of the Royal Commission on Marriage and Divorce,1956, Cmnd. 9678, para. 837, recommending jurisdiction based on residence. For the fate ofLord Meston's Bills of 1958 and 1959 see, House of Lords, Official Report, Vols. 211, cols.206-9; 213, col. 709; 214, cols. 327-57, and, Bland (1958) 7 Int. & Comp. L.Q. 753, Mann(1959) 8 Int. & Comp. L.Q. 457.20. Law Commission Report No. 48, Family Law: Jurisdiction in Matrimonial Causes, 1972,para. 46; hereafter referred to as, Law Comm. Rep. No. 48.21. See, supra, n. 10 and n. 12.22. Ramsay-Fairfax v. Ramsay-Fairfax [19561P. 115; Szechterv. Szechter [1971] 2 W.L.R. 170.23. Garthwaite v. Garthwaite [1964] p. 356.

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alleged to be void, that the marriage was celebrated in England.24 Secondly,domicile means domicile according to English law, i.e., in its strict form. Thirdly,as to the time factor, jurisdiction will not be lost if the parties acquire a foreigndomicile (s) after presentation of the petition but before judgment.25 By analogy,it would seem that the same must hold true for a subsequent change, or loss,of habitual residence. Fourthly, but merely for the sake of completeness, as tohabitual residence this term has been employed in six U.K. statutes 2 6 butwithout a meaning having been ascribed and as yet there exists no authoritativejudicial statement as to its meaning.

B. Choice of Law

Two 'principles' that have been established are that connecting factors areto be determined according to English law and that, with the exception ofnullity, although even here there is a clearly discernible tendency to follow the'principle', where jurisdiction is founded the issues arising are governed byEnglish law.

Of the connecting factors the most important in questions of status has beendomicile. The question where a person is domiciled is determined according toEnglish law 2 7 , subject to a solitary exception provided by s. 3 (2) Recognitionof Divorces and Legal Separations Act 1971 whereby jurisdiction taken on thebasis of domicile as that term is understood in the country of origin is sufficientfor recognition by the English court.

The Matrimonial Causes Act 1965, s. 40 (2) provided that where the courthad jurisdiction, "the issues shall be determined in accordance with the lawwhich would be applicable thereto if both parties were domiciled in Englandat the time of the proceedings". When considering the extension of the basesof jurisdiction in matrimonial proceedings the Law Commission deemed itnecessary to examine the question whether English courts should continue toapply English domestic law in the proceedings despite the fact that the marriagewas a foreign one and that the personal laws of the parties, or of one of them,was foreign.28 The conclusion was that no change was required in the rulewhereby English law is applied in all proceedings, excepting nullity where ques-tions of formal and essential validity remain subject to the lex loci celebrationisand to the ante-nuptial domicile of the parties respectively.2 9 However, it was

24. Simonin v. Mallac (1860) 2 Sw. & Tr. 67;Ross-Smith v. Ross-Smith [1963]A.C. 280.25. Leon v. Leon [I967]p. 275; Cheshire & North, Private International Law, 8th ed., (1970),p. 347.26. Viz. Administration of Justice Act 1956, s. 4; Wills Act 1963, s. 1; Adoption Act 1968, s. 11;Recognition of Divorces and Legal Separations Act 1971, s. 3; Domicile and Matrimonial Pro-ceedings Act 1973, ss. 5, 6, 16; Supply of Goods (Implied Terms) Act 1973, s. 7.27. See, Dicey & Morris, Conflict of Laws, 9th ed., (1973), p. 91.28. See, generally, Law Comm. W.P. No. 28, paras. 81-84; Law Comm. Rep. No. 48; paras.103-108.29. See, now, Radwan v. Radwan (No. 2) [1972] 3 W.L.R. 939, holding that capacity to contracta polygamous marriage is governed by the intended matrimonial residence: discussed, Wade(1973) 22 Int. & Comp. L.Q. 571.

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recommended that sections 14(5) and 40(2) Matrimonial Causes Act 1965 3 0

should be repealed and not replaced 3 I on the grounds that such a provision isunnecessary for it has no application to proceedings for nullity of a void marriage,the Divorce Reform Act 1969 leaves no scope for the application of anythingbut English law to divorce or judicial separation, its application to other pro-ceedings is obscure 3 2 , and such case law as does exist on .the point supportsthe proposal that English domestic law alone should apply.33 Speaking of suchan approach a learned author had earlier observed, "In the Judicial search forthe legal system applicable, there is a distinct 'homeward trend', a tendency toarrive, if possible, at the application of domestic law".34 He considered, how-ever, that the nationalist policy inherent in "homeward trendism" was explicableby the fact that, "application of foreign law lays a considerable burden uponthe court and is often attended by further inconveniences and disadvantages.Moreover, substantial justice may frequently be obtained under the local law. Itwould be a mistake to dismiss such a . . . phenomenon as an aberration or as avagary of the courts".3 s The expressly stated reason given by the Law Commis-sion for their conclusion in favour of not changing the existing rule was, "It isour strongly held view that practical considerations should prevail".36

While one accepts that practical considerations can be endowed with a cogencydenied to theoretical arguments the reasoning of the Law Commission is notentirely convincing. When the husband's domicile was the only basis upon whichthe English courts assumed jurisdiction in divorce the question whether the peti-tioner's or the respondent's personal law should be applied could not arise: thelex fori was English, the domiciliary law was English, and the personal law ofthe husband, and consequently of the wife, was English. This tidy situation,whatever may have been the motivation behind its simplicity, was overtly rootedin theory — domicile governed status. Is it an adequate answer to perpetuate thesame practice under different conditions merely by pleading that practical consid-erations compel it? The Law Commission strengthened their case by outlining a"relatively straightforward" example which would "be heard, if undefended, in acounty court".37 One may object to this by suggesting that where foreign lawis in issue the matter may be referred to a High Court Judge* for determination.This would appear to be caught by the Law Commission's further argument that,

30. The enactments applied where the court had jurisdiction, in the first case to proceedings forpresumption of death and dissolution of mariage and in the second to proceedings under s. 40 (1)on the basis of the wife petitioner's residence in England, though neither spouse was domiciled inEngland.31. Law Comm. Rep. No. 48, paras. 107-8.32. See, Morris, Conflicts of Laws, (1971), pp. 167-8.33. See, Zanelli v. Zanelli (1949) 64 T.L.R. 556, where the Court of Appeal held that a desertedwife whose husband was domiciled in Italy, which at that time did not permit divorce, was ableto obtain a divorce in England - the question whether English law alone should apply was notdirectly argued.34. Nussbaum, Principles of Private International Law, (1943), p. 37.35. Ibid., pp. 41-42.36. Law Comm. Rep. No. 48, para. 105.37. Law Comm. W.P. No. 28, para. 82.

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"to require the petitioner to lead evidence of foreign law in an undefended di-vorce case would be a serious obstacle to the swift and inexpensive administra-tion of justice" 3 8 , which argument, although the declared objectives are inthemselves highly desirable, appears to beg the question of what constitutes theproper administration of justice. The reasoning of the Law Commission borderson sophistry when it is claimed that, "There are likely to be many complexitiesinvolved in the search for the 'proper law' of a marriage where the case containsa foreign element" 3 9 , and, further, that, "to require English courts to dissolve[or to refuse to dissolve? ] the marriage of parties connected with this countryby applying alien concepts . . . would be regarded by many people as undesir-able even if it were practicable".40 There is a suggestion here that the choiceof law process should be pre-empted by the jurisdiction selection process. TheLaw Commission had already indicated its attitude to this matter in its considera-tion of the problems associated with founding jurisdiction on the residence ofthe petitioner alone: "A further risk is that . . . a non-resident respondent maybe divorced in England on a ground which, perhaps, was not a ground for di-vorce by his or her personal law. [But this] has to be accepted as a lesser hard-ship than denying relief to a petitioner who has established the required residen-tial links with this country".41 This hardship need only be accepted if one firstaccepts that jurisdiction selecting rules pre-empt the choice of law issue, for ifthe two enquiries remain separate then the risk is rather that the petitioner "whohas established the required residential links" with the forum may be deniedrelief by reference to the personal law of the non-resident respondent.

The Law Commission considered that the contention was not a compellingone in theory which states that if a connecting factor is sufficient to foundjurisdiction then it is sufficient to justify the application of the law of theforum.42 Although one can agree with this conclusion of the Law Commissionone remains unconvinced that the contention was completely rejected by theLaw Commission for it also considered that a choice of law approach mightdeter plaintiffs who were justified in resorting to the English court 4 3 , and con-cluded that in order to protect that privilege to invoke the jurisdiction that"the grounds and defences should continue to be exclusively those of Englishlaw".44

THE PERMANENT HOME APPROACH

The idea which allegedly underpins domicile is that of a person's permanenthome:

38. Ibid., para. 83.39. Law Comm. Rep. No. 48, para. 104.40. Law Comm. W.P. No. 28, para. 83.41. Law Comm. Rep. No. 48, para. 39.42. Law Comm. W.P. No. 28, para. 83.43. Law Comm. Rep. No. 48, para. 104.AA.Ibid. p. 40.

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"By domicile we mean home, the permanent home; and if you do not understandyour permanent home I am afraid that no illustrations drawn from foreign writersor foreign languages will very much help you to i t" . 4 5

The Private International Law Committee, in its First Report 4 6 , contented itselfwith the conclusion that residence was an "ambiguous" term but was satisfiedthat domicile could be expressed in terms of "home". The ambiguity of thislatter word is self-evident and it is somewhat in the nature of a catch-worddrummed into service to convey a general notion of attachment, using this wordin both an objective and a subjective sense, and passing muster for both residenceand domicile. Thus, if a person has two homes in different countries he isdomiciled in that in which he has his principal home.4 7 However, domicilediverges from the notion of home by the insistence that, first, no person canbe without a domicile at any time, and second, that no person can at the sametime for the same purpose have more than one domicile.48 These refinementsstem from the belief that it is incumbent upon the law of every territory to beable to ascribe to every given individual a legal 'centre of gravity' 4 9 , "the onetechnically pre-eminent headquarters", resulting either from "fact or fiction" 5 0 ,in order "to determine which of two municipal laws may be invoked for thepurpose of regulating the rights of the parties".5 '

Domicile is "an idea of law".5 2 In the words of an eminent author, however,although:

45. Whicker v. Hume (1858) 7 H.L.C. 124, 160 per Lord Cranworth. See, Dicey, Conflict ofLaws, 1st ed., (1896), pp. 80-90. Also, p. 106 n. 2 where this eminent writer takes pains toelaborate the distinction between domicile and 'home'.46. Cmnd. 9068, (1954), para. 13.47. Forbes v. Forbes (1854), Kay 341, 367; see, Restatement, Redraft 1954, s. 24: "When a per-son with capacity to acquire a domicile of choice has more than one home, his domicile is in theearlier home unless the second home is his principal home"; of this approach it was said in Wahlv.Att.-Gen. (1932) 147 L.T. 382, H.L., "In a similar situation, the Restatement raises the pre-sumption that his English home corresponds with his domicile, and the onus of proof being onWahl to show another home as his principal home. In other words, ordinary residence raises thepresumption of domicile".48. See, generally, Dicey & Morris, op. cit., 9th ed., Rules 5 & 6, pp. 88-90.49. Wolff, Private International Law, 2nd ed., (1950), p. 106.50. Bergner & Engle Brewing Co. v. Dreyfus (1898), 51 N.E. 531, 532 per Holmes J. Cf. Restate-ment, 1934, s. 11 "every person has at all times one domicile, and no person has more than onedomicile at a time", reiterated in 1954 Draft, eventually modified to, "for the same purpose",Restatement, Second, s. 11 (2).51. Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 307, 320 per Lord Westbury; Udny v. Udny (1869),L.R. 1 Sc. & Div. 441; Garthwaite v. Garthwaite [1964] P. 356, 379. Earlier indications in favourof multiple domiciles: see, Somerville v. Somerville (1801), 5 Ves. 750, 786; Re Capdevielle(1864), 2 H. & C. 985, 1018, used 'commercial' domicile as a synonym for residence: cf. TheHarmony (1800), 2 C.Rob. 322;La Virginie (1804), 5. C. Rob. 98. See, Dicey, op.cit., 1st ed.,pp. 95-7.52. Belly. Kennedy (1868) L.R. 1 Sc. & Div. 320 per Lord Westbury. English law knows of threecategories of domicile: of origin, of choice, and that possessed by persons under a disability,which last is variously termed a domicile by operation of law (which is confusing for a domicileof origin is also said to attach by operation of law), a derivative domicile, or one of dependency.The latter is employed by the Domicile and Matrimonial Proceedings Act 1973, ss. 1 (2) and 4.See, Lord Advocate v. Jaffrey [1921] 1 A.C. 146, 165-66; Dicey & Morris, op. cit., 9th. ed., pp.85-126.

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"originally a good idea . . . the once simple concept has been so overloaded by amultitude of cases that it has been transmuted into something further and furtherremoved from the practical realities of life".S3

That this is so is amply illustrated by the process of enquiry which, it has beenclaimed, is necessary for a determination as to change of domicile: thus, it hasbeen laid down that,

"there is no act, no circumstance in a man's life, however trivial it may be in itself,which ought to be left out of consideration"54,

which, for example in one leading case, involved the consideration of,

"the tastes, habits, conduct, actions, ambitions, health, hopes and projects ofMr. Winans deceased . . . as keys to his intention to make a home in England".5 s

Consequently, it should come as no surprise that,

"the differences of . . . people often have to be adjusted in accordance with thecommunity to which they 'do not belong' 5 6 . . . 'domicile' frequently does notrepresent the community to which people belong".5 7

Nevertheless, the 'permanent home' approach persists in judicial attitudes todomicile. Domicile is thus:

"That place . . . in which he has voluntarily fixed the habitation of himself andhis family, not for a mere special and temporary purpose, but with a present inten-tion of making it his permanent home, unless and until something (which is un-expected, or the happening of which is uncertain) shall occur to induce him toadopt some other permanent home".5 8

In Udny v. Udny 5 9 , the act of residing was referred to in terms of 'settling',or of voluntarily fixing a sole or chief residence in a place, and in the slightlyearlier Bell v. Kennedy 6 0 , domicile was seen in the context of a man settingup his 'tabernacle'. In that case, Lord Cairns L.C. saw the question as being:

"Whether the appellant. . . had determined to make, and had made, Scotlandhis home, with the intention of establishing himself and his family there, andending his days in that country".6'

In the result, a person may be said to have his "home" in a country if heresides in it without any intention of at present removing from it permanentlyor for an indefinite period.62 However, one can add that a person does not

53. Morris, op.cit, p. 13.54. Drevon v. Drevon (1864) 34 L.J.Ch. 129, 133 per Kindersley V.C.55. Casdagli v. Casdagli [1919] A.C. 145, 178 per Lord Atkinson.56.Indyka v.Indyka [1967] 2 A.E.R. 689, 111 per Lord Pearce.57. Ibid. p. 721 per Lord Wilberforce.58. Lord v. Colvin (1859), 4 Drew. 366, 376 per Kindersley V.C.59. (1869), L.R. 1 Sc. & Div. 441.60. (1868), L.R. 1 Sc. & Div. 307.61. Ibid., p. 311. Emphasis supplied.62. See, generally, Dicey & Morris, op. cit. pp. 85-6. Dicey, op. cit., 1st ed., p. 110.

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cease to have his home in a country merely because he is temporarily residentelsewhere, or even concurrently resident elsewhere, although a person who hasformed the intention of leaving a country may not cease to have his homethere until he acts in accordance with that intention, e.g., by sending his familyon ahead or by beginning his journey of departure. Such statements wouldappear to accord with commonsense. The same is not necessarily quite so trueof domicile. A person may have no home anywhere because he is never presentin any place otherwise than as a casual visitor or because he has abandoned onehome and is in itinere with the hope of establishing another when he arrives.Such a person will be accorded a domicile. Again, a person may have, in fact,a home in one country but be unable to acquire a domicile there because thelaw denies him the capacity of acquisition, as is the case with minors. Suchpersons may be domiciled in countries in which they do not have their perma-nent home. A person who lives in a country and intends so to do for a further,say ten years, can be said to be resident there. For that person to be domiciledin that place he must, instead, intend to reside there permanently or indefinitely.Further, a person could be said to have his home in, e.g., Australia, even thoughhe has never been there if he has settled his family there and intends shortly tojoin them. However, a domicile cannot be acquired anywhere in Australia untilhe is physically present there. The result is that a person may be domiciled ina country which to all intents and purposes he has abandoned, apart from theaccident of circumstance that he has not physically departed across its frontiers,by a holding that he still has his 'permanent home' in the 'abandoned' country.In such a situation the wife would acquire a domicile in one of the AustralianStates whereas the husband, and any children, would retain their English domi-ciles. This would be the result of construing ss. 1 and 4 Domicile and Matrimo-nial Proceedings Act 1973 together. As we have seen, the result of s. 1 is thatthe husband and wife, even if living together, may have separate domiciles.Section 4 is concerned with the problem of whether the domicile of a dependentchild should follow that of his father or his mother. Under the Act the basicrule remains that the children 6 3 follow the domicile of the father except wherethe parents are alive and living apart, whether or not they are divorced, where-upon the child's domicile will follow that of the mother, first, if he has hishome with her and has no home with the father and, secondly, if he has atany time in the past had her domicile by virtue of that rule and has not sincehad a home with his father. In the above example it is hardly conceivable thatthe spouses would be held to be "living apart" for the purposes of s. 4.64 Thisanomalous situation could, in unfortunate circumstances, give rise to hardship

63. The domicile of a dependent child whose mother is dead is that which the mother last hadbefore she died if at her death the child had her domicile by virtue of s. 4 and has not since hada home with the father. The domicile of an illegitimate child (the new provisions do not apply tothe latter but do apply to adopted children) probably cannot be changed at all.64. Cf. Bangs v.InhabitantsofBrewster (1873) 111 Mass. 382, and see, Restatement, Second,s. 16, comments d, f. For interpretations of this phrase in the context of the Divorce Reform Act1969 see, Fuller v. Fuller [1973] 1 W.L.R. 130;Mouncerv.Mouncer [1972] 1 W.L.R. 321;Santos v. Santos [1972] 2 W.L.R. 889

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as where, perhaps, one spouse dies before being reunited with the other, thedifference in domiciles not being in accordance with their intentions.

As the above example indicates, although presence is a necessary concomi-tant of intention, in some situations it may either not be an operative factoror, alternatively, it may be dispensed with entirely, as where domicile is acquiredvicariously by operation of law transmitting a domicile of dependency. Harrisonv. Harrison 6 S affords a good illustration. Harrison was born in England in1930 with an English domicile of origin. In 1948 his parents emigrated toSouth Australia, leaving him in England. In 1950 he emigrated to New Zealand,married a New Zealand woman and decided to live there permanently. Threemonths before attaining his majority he and his wife arrived in England for the pur-pose of his business training, i.e., a temporary purpose. Two years later, thewife petitioned for a divorce and the question arose, where was he domiciled?It was held that he was domiciled in England: until he attained his majorityhe was domiciled in South Australia, although he had never been there; by in-tending to reside permanently in New Zealand he abandoned his domicile inSouth Australia, but did not acquire a domicile of choice in New Zealandbecause at no time after he came of age did he ever reside there: consequently,his English domicile of origin revived.

A. Factum of Residence

An independent person can acquire a domicile of choice by the combinationof residence and the intention of permanent or indefinite residence 6'. Thisfactum, although usually referred to as residence, is technically a mis-nomerfor all that is required, in theory, is the fact of presence. In practice therewill be few cases where the distinction will be one with a difference forthe difficulties of proving the requisite animus, as we shall see, will be in-tensified if the factum claimed in support of the acquisition of a domicileof choice is as insubstantial as mere presence. Simply in terms of evidentialprobability of success it will usually be necessary to show residence, and evenresidence of a high quality, rather than merely presence. This is all the more soin view of the fact that the enquiry as to the animus is subjectively orientatedin that what is to be ascertained is not the objective 'centre of gravity' of thepropositus but his state of mind, and this against the back-cloth of a tendencyto lean against any change of domicile. In such an enquiry the bald fact ofpresence is rendered small indeed.

It is convenient here to note that the residence necessary to support theacquisition of a domicile of choice must have been, "freely chosen, and notprescribed or dictated by any external necessity".67 However, this requirement

65. [1953] 1 W.L.R. 865.66. See, Dicey & Morris, op. cit., 9th ed., p. 86 et seq., passim; Graveson, Conflict of Laws,6 th ed., (1969), p. 204 et seq., passim; Cheshire & North, op. cit., 8th ed., p. 162 et seq.. passim.Cf. Restatement. Second, s. 16, comment b. Also, Dicey, op. cit., 1st ed., p. 80 et seq.67. Udny v. Udny (1869), L.R. 1 Sc. & Div. 441, 458. See, generally, Dicey & Morris, op. cit.,9th ed., pp. 106-12.

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simply means that where the residence is not freely chosen the inference ofanimus manendi, which might be drawn, ought not to be drawn from the factof the residence alone.68 If the necessary animus can be proved by other meansthe domicile can be acquired nevertheless. Thus, a person who resides in acountry in order to institute 6 9 or to evade 7 0 matrimonial proceedings mayacquire a domicile in that country. In a recent case concerning the acquisitionof a domicile of choice by a serviceman, Willmer J. expressed the opinion that:

"It is no longer possible to keep the question of the factum of residence separatefrom the question of animus . . . for the animus must be an important element tobe taken into account when considering whether the residence relied on is or isnot voluntary residence".71

This has been criticised 72 on the ground that to require that the necessaryresidence should be voluntary is an unnecessary refinement for if the presenceof the propositus is involuntary he should be held not to have acquired adomicile of choice as a result of his lack of an intention to reside permanentlyin the country. There is nothing of substance to be gained from using the samequestion as to volition to undermine the other element of residence .While it issubmitted that the point is well taken, it would appear equally that this illustratesclearly the tendency to confuse the meanings of words, the ideas expressed there-in, as a result of the identity of the terms used.

"A new domicile is not acquired until there is not only a fixed intention of estab-lishing a permanent residence in some other country, but until also this intentionhas been carried out by actual residence there".73

Early suggestions that a domicile of choice could perhaps be acquired by inten-tion without residence, in those cases where the propositus clearly demonstratedthe abandonment of a domicile and died in itinere before actually reaching thenew country, were firmly put down in Udny v. Udny 7 4 where a suggestion ofSir John Leach in Munroe v. Douglas 75 to the effect that a Scotsman, havingacquired an Anglo-Indian domicile and having finally left India but not havingsettled elsewhere, did not re-acquire his original domicile of origin, was stronglycriticised.76

In order to acquire a domicile of choice it is not necessary that the residenceshould be lengthy in point of time. The domicile attaches at the very momentthat the fact of residence becomes established:

68. See, Bempde v. Johns tone (1796) 3 Ves. 198, 201-2.69. Drexel v. Drexel [1916] 1 Ch. 251.70. Firebrace v. Firebrace (1878), 4 P.D. 63.71. Cruickshanksv. Cniickshanks [1957] 1 W.L.R. 564, 568.72. McClean (1962) 11 Int. & Comp. L.Q. 1153, 1159.73. Bells. Kennedy (l$6S), L.R. 1 Sc. & Div. 307, 319 per Lord Westbury.74. (1869), L.R. 1 Sc. & Div. 441. Dicey, op. cit., 1st ed. pp. 118-9.75. (1820), 5 Madd. 379. Dicey, op. cit., 1st ed. p. 117.76. (1869), L.R. 1 Sc. & Div. 441, 449-50, 453-54. Cf. Restatement, Second, s. 19, adopting theview expressed by Sir John Leach.

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"Now this case was argued at the Bar on the footing, that as soon as Mr. Bell leftJamaica he had a settled and fixed intention of taking up his residence in Scotland.And if, indeed, that had been ascertained as a fact, then you would have had theanimus of the party clearly demonstrated, and the factum, which alone would re-main to be proved, would in fact be proved, or, at least, would result immediatelyupon his arrival in Scotland".77

A clear example of the need for nothing other than presence, given the requisiteanimus, was provided in Re bonis Raffenel 7 8 , where, her husband having died(domiciled) in France, the widow expressed a clear intention to return to Englandbut at the point of departure was taken ill and subsequently died before shecould leave the country. It was held that her French domicile had not beensuccessfully abandoned as intention alone was insufficient. If she had diedimmediately after escaping French territorial waters then her English domicileof origin would have revived and if immediately after entering the United King-dom territorial waters off the coast of England then an English domicile ofchoice would have been acquired.

It follows that the length of residence is not important per se although itmay be very evidential as to the animus manendi.19

At one time there was a strong school of thought which advanced the viewthat:

"length of residence, according to its time and circumstances, raises the presump-tion of intention to acquire domicile. The residence may be such, so long and socontinuous, as to raise a presumption nearly, if not quite, amounting to a prae-sumptio juris et de jure; a presumption not to be rebutted by declarations of inten-tion, or otherwise than by actual removal".80

In Bruce v. Bruce 8 1 an early decision on intestate succession and mobilia se-quuntur personam, Lord Thurlow stated:

"it is an erroneous proposition that a person is to be held domiciled where he drewhis first breath 8 2 , without adding something more unequivocal. A person's beingat a place is prima facie evidence that he is domiciled at that place, and it lies onthose who say otherwise to rebut that evidence. It may be rebutted no doubt. Aperson travelling; — on a visit; — he may be there for sometime on account of hishealth or business . . . But what will make a person's domicile or home, in contra-diction to these cases, must occur to everyone. A British man settles as a merchantabroad; he enjoys the privileges of the place; he may mean to return when he hasmade his fortune, but if he dies in the interval, will it be maintained that he had

77. Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 307, 319 per Lord Westbury.78. (1863), 3 Sw. & Tr. 49. Cf. Tee v. Tee [1974] 1 W.L.R. 213, discussed, infra.79. Munro v. Munro (1840), 7 Cl. & Fin. 842, 876 per Lord Cottenham: "residence alone has noeffect per se, though it may be most important as a ground from which to infer intention".80. Hodgson v. De Beauchesne (1858) 12 Moo. P.C. 285, 329, per Dr. Lushington. Cf. Re Grove(1888), 40 Ch.D. 216, 243 per Lopes L.J., where forty five years' residence produced an "almostirresistible" inference of domicile: Dicey, op. cit., 1st ed., rules 13, 17.81.(1790), 2 Bos. &P. 229 n., reported as a footnote to Marsh v.Hutchinson (1800), 2 Bos. & P.226; see, also, Bempde v. Johnstone (1796), 3 Ves. 198.82. For the modern law as to attribution of domicile of origin, see, Dicey & Morris, op.cit.,9th ed., pp. 93-4; Dicey, op.cit., lth ed., pp 100-4.

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his domicile at home? In this case Major Bruce left Scotland in his early years; hewent to India; returned to England, and remained there for two years without somuch as visiting Scotland, and then went again to India and lived there sixteenyears and died. He meant to return to his native country it is said, and let it begranted; he then meant to change his domicile, but he died before actuallychanging it".83

This view in favour of holding a man to be domiciled where he had his homein fact, on a more objective assessment, began to give way in the face of adisinclination to find for a change of domicile, particularly a loss of the domicileof origin:

"it depends upon the intention, upon the quo animo . . . it must be a residencesine animo revertendi 8 4 , in order to change the domicilium originis: a temporaryresidence for the purpose of. . . business has not the effect: it must be a fixed andpermanent residence, abandoning finally and for ever the domicile of origin".8 5

"Residence . . . cannot, when looked at with reference to the animus, be regardedotherwise than as an equivocal act . . . even though his residence there may be longand continuous . . . A domicile, although in some cases spoken of as 'home',imports an abiding and permanent home, and not a mere temporary one".86

In the result, "residence may be some small prirna facie proof of domicile" 8 7 ,its cogency increasing with length but being of itself insufficient from which toinfer the animus, although "the quality of the residence may afford the necessaryinference" 8 8 , the modern view being that "residence must answer a qualitativeas well as quantitative test".89

B. The influence and scope of the animus

The necessary intention is that of living permanently in the country ofresidence: "it must be residence fixed not for a limited period or particularpurpose, but general and indefinite in its future contemplation".90 In the pastthis has been interpreted as meaning 'for ever'. In recent times the intention is

83. See, 126 E.R. 1252-53. Note that even at this early date domicile in the context of successionand choice of law was accepted as a stricter concept than domicile — residence for matrimonialpurposes, see, also, Somerville v. Sommerville (1801) 15 Ves. 750, 786-87, 858 per Sir R.P.Arden M.R. Cf. Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588, discussed, infra.84. For a recent discussion as to this, see, Tee v. Tee [1974] 1 W.L.R. 213, discussed, infra.85. Stanley v. Bernes (1830), 3 Hag. Ecc. 373, 437-38 per Sir John Nicholl.86. Jopp v. Wood (1865), 34 L.J.Ch. 212, 218 per Turner L.J. See, also, Steel v. Steel (1888)15 R. 896, 909, "Nobody in his senses ever goes to Burmah sine animo revertendi", and, Doucetv. Geoghegan (1878) 9 Ch.D. 441, 453, "It is well known that everyone who goes to India doesso for the express purpose of making money and returning to this country as soon aspossible"; both cited, Dicey & Morris, op. cit., 9th ed., p. 104 n. 85. Cf, Dicey, op. cit., 1st ed.p. 93 n. 1.87. Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 307, 321 per Lord Westbury.88. Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588,595 per Lord Thankerton.89. Ibid., p. 598 per Lord Macmillan.90. Udny v. Udny (1869), L.R. 1 Sc. & Div. 441, 458 per Lord Westbury.

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usually expressed in an alternative form, viz. permanently or indefinitely.91

Consequently, it does not appear unreasonable to regard the requisite intentionas not being absent merely because the propositus cannot deny completely theexistence of a vague possibility of returning to the country of the previousdomicile or of going to some third country at some future time.92 Conversely,it is clear that the animus is absent despite residence of an indefinite durationwhere there exists an intention to move, "upon a clearly foreseen and reasonablyanticipated contingency, e.g., the end of his job".93 The modern academic viewas to this matter has been justified on the following grounds:

"The intention required for the acquisition of a domicile of choice is an intentionto remain permanently in the place of one's choice. This exaggerated emphasis onpermanence has sometimes resulted in the denial of a domicile of choice to personswho have spent long years in a particular country. Doubtless it has been influencedby the nineteenth century image of the ambition of the colonial civil servant tocome home on his retirement at the end of a long and active life in India, in Africaor elsewhere in what was then called the British Empire. At that time the emphasison intention of permanent residence might have been valid. It is less compatible withmodern social conditions, and is better represented by Mr. Justice Scarman in hisjudgment in The Estate ofFuld (3) where he states that a domicile of choice isacquired "when a man fixes voluntarily his sole or chief residence in a particularplace with an intention of continuing to reside there for an unlimited time"."Unlimited" is more compatible with the uncertainties of modern life than thepermanence of the nineteenth century . . ,".94

This view, although having much commonsense to commend it, still has to beestablished in contradistinction to the authoritative pronouncements of theHouse of Lords delivered in judicially recent times, in particular, in Winans v.Att.-Gen. 9S and Ramsay v. Liverpool Royal Infirmary.96 As to the first,Winans was born in the United States in 1823. In 1859 he went to Englandand lived there until his death in 1897. In 1850 he had gone to Russia wherehe was employed in equipping railways. During the Crimean War he renderedassistance to the Russian Government in the construction of gunboats. While inRussia he married a woman from Guernsey. In 1859 his health broke down.There were symptoms of consumption and he was medically advised to winterin Brighton, which he did with reluctance. In 1860 he took a lease on propertyin Brighton and thenceforth spent increasing periods of time in England until,as from 1893, he spent the whole of his time there. Although he took a leaseof some shooting in Scotland he never purchased property in England and athis death he still held the tenancy of the Brighton houses. The question before

91. See, Dicey & Morris, op. cit., 9th ed., p. 85 et seq., passim; Graveson, op. cit., 6th ed.,pp. 206-9; Cheshire & North, op. cit., 8th ed., p. 78 et seq., passim. Dicey, op. cit., 1st ed., p.110.92. See, Culbenkian v. Gulbenkian [1937] 4 A.E.R. 618, 626-27 per Langton J. See, also,Henderson v. Henderson [1965] 2 W.L.R. 218.93. In the Estate ofFuld (No. 3) [1968] p. 675, 684 per Scarman J.94. Graveson (1972) 19 Neth. Int. L.R. 31, 39.95. [1904] A.C. 287.96. [1930JA.C. 588.

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the court was whether legacy duty was payable in respect of an annuity givento a relative by the deceased and this in turn depended on whether at his deathhe was domiciled in England. It was held that it had not been proved withperfect clearness that the propositus had at his death formed any fixed andsettled purpose, no final and deliberate intention to abandon his domicile oforigin in favour of settling in England.9 7 The second case affords a strikingcomparison in illustrating the extent to which the law had changed in the courseof over a century. In 1790 9 8 it was held that, where the propositus had lefthis native land and resided abroad for most of his life but expressed an unfulfil-led intention to return, he had acquired a domicile of choice. In 1930 " i t washeld that where there had been such a departure and life-long residence abroadand where the propositus had expressed and fulfilled his intention never to re-turn, his domicile of origin persisted. The testator, a bachelor, who was born inScotland in 1845, left there to reside in Liverpool some time between 1890 and1892 in order to be near his mother and sister. He was dependent on an allow-ance from his brother who also resided in Liverpool. He lived in lodgings untilabout 1914 when he moved into the house formerly occupied by his mother,who had died in 1905, and his brother, who had died in 1912, sharing it withhis sister until her death in 1920. He remained there until his own death in1927. At no time did he ever return to Scotland, refusing to do so even forhis mother's funeral. He expressed a determination never to set foot in Glasgowagain and arranged for his burial in Liverpool. On the other hand, he referredto himself as a Glaswegian both in statements during his lifetime and in his will.This instrument, which gave residue equally between three Glasgow charities andone Liverpool charity, was formally valid if he died domiciled in Scotland, butwas formally invalid if he died domiciled in England. The House of Lords heldthat the deceased's long residence in Liverpool, the last thirty six years of hislife, was due merely to inertia and that it was inadequate to discharge the onusof proof of change of domicile: "The long residence of George Bowie is remark-ably colourless, and suggests little more than inanition".100 The almost over-whelming presumption in favour of the continuance of the domicile of origin isclearly evidenced by the law relating to the onus of proof:"the onus of proving that a domicile has been chosen in substitution for thedomicile of origin lies upon those who assert that the domicile of origin hasbeen lost".101

97. The irony of the case was that of the eight judges involved in the determination six con-cluded in favour of a change of domicile - both judges at first instance, all three judges onappeal to the Court of Appeal, and one in the final appeal to the House of Lords. Of the othertwo judges sitting in the House one declared himself unable to reach any positive decision on theconflicting evidence and fell back on the rule that the domicile of origin must continue on afailure to discharge the onus of proof of showing a change.98. Bruce v. Bruce (1790), 2 Bos. & P. 229 n. See, supra, n. 83.99. Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588.100. Ibid, p. 595 per Lord Thankerton. Cf. May v. May [1943] 2 A.E.R. 146. On the need forunequivocal acts, see, Re Lloyd-Evans [1947] 1 Ch. 695 Also, Trovers v. Holley [1953] p. 246,252 per Jenkins L.J.101. Winansv.Att.-Gen. [19O4]A.C. 287, 289 per Lord MacNaghten; see, Lauderdale Peerage

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It is worthy of note that of the twelve disputed cases of domicile to reachthe House of Lords since 1860 in only one was it held that a domicile of originhad been lost.102 In a recent decision of the House on recognition of foreigndivorce decrees it was suggested that domicile as a basis for recognition wasadopted,

"to solve the conflict between the English and Scots' courts with regard to mar-riages celebrated in England", ' ° 3

and that its development along strict lines was influenced by,

"the special situation existing between England and Scotland with its interplay oflong-term residents".104

In Scotland, where the power to grant dissolution had existed since the Reforma-tion, the grounds of jurisdiction were much the same as those of the Englishecclesiastical courts prior to 1858. Consequently, a short residential period inScotland was accepted as founding jurisdiction. If one can accept that thereexisted significant numbers of persons who, rather than 'adopting' England orScotland as the case may be, instead merely sojourned in the respective othercountry, albeit for a considerable period, then it is comprehensible that a conceptakin to nationality, a change of which could be said to signify clear evidenceof such adoption, should have developed from the original notion of residence,a fact which per se would be inadequate to distinguish 'native' residents fromthose of sojourn, i.e., foreigners.105 It is interesting to speculate that if therehad existed such a concept as English nationality, and thus distinguishable fromScottish nationality, perhaps the English concept of domicile in its strict formmight never have arisen.106

A domicile of choice is lost when both the residence and the intention nec-essary for its acquisition are given up. Two questions that have arisen recentlyfor discussion in this context are, given the factor of physical departure or ab-sence from the country of domicile, first, is it necessary to demonstrate thatthe departure was animo non revertendi or does it suffice if it was sine animorevertendi? and, secondly, is the animus sufficient for abandonment of thedomicile of choice so as to revive the domicile of origin or is a new factum ofresidence necessary for revival to operate?

Case (1885) 10 App. Cas. 692, 739 per Lord Selborne. Also, Restatement, Second, s. 19,comment c.102. The exception is Casdagli v. Casdagli [1919] A.C. 145. See, Morris, op. cit., p. 20.103. Indyka v. Indyka [1967] 2 A.E.R. 689, 697 per Lord Reid.104. Ibid., pp. 710-11 per Lord Pearce.105. See, for indications of such an approach, Moorhouse v. Lord (1863) 10 H.L.C. 272, Udnyv. Udny (1869) L.R. 1 Sc. & Div. 441, suggesting that a change of domicile requires a change ofnationality ;JV7&oyef v. Niboyet (1878) 4 P.D. 1, arguments of counsel at pp. 2-3\Harvie v. Farnie(1882) 8 App. Cas. 43, headnote to decision reads "native".106.See,e.& Ehrenzweig & Jayme, Private International Law, Vol. 2, Special Part (1973), p. 100,"England's domicile of origin which may be seen as the very ancestor of the nationality principleitself'.

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The latter question had arisen for consideration in Udny v. Udny 1 0 7 in thespecific context whether the respondent was legitimated per subsequens matri-monium. Scottish law allowed for such legitimation but English law did not.108

The father of the child, Colonel Udny, had a domicile of origin in Scotland.Upon his marriage in 1812 he took the lease of a house in London, residingthere until 1844, although with short visits to Scotland. Due to financial diffi-culties he departed for France. The respondent was born in 1853 and theColonel, acting upon advice as to legitimating the child, and his wife havingdied earlier, went to Scotland and married the mother, a French woman. TheCourt of Session held that Colonel Udny had never lost his domicile of origin.The contention laid before the court was that the acquisition of a domicile ofchoice actually obliterated the domicile of origin which could thus only be re-acquired by the combination animo et facto. The House of Lords strongly re-jected such contention on the ground that it would lead to the absurdity of adomicile of choice which had been abandoned unequivocally persisting in theinterim before the propositus acquired a new domicile, either of choice or oforigin, and affirmed the decision that the father was domiciled in Scotland buton the ground that his domicile of origin had automatically revived upon hisquitting England in 1844 and had not been displaced by the acquisition of aFrench domicile of choice.

Both questions arose in Tee v. Tee.109 The husband, having an Englishdomicile of origin, married an American woman in England in 1946. The follow-ing year they went to live in the United States, the husband becoming a natu-ralised citizen, and acquiring a domicile of choice. In 1960 his employment dutiestook him to Germany. In 1966 he left his wife and lived with a German woman.In 1966-67 he decided to make his permanent home in England. After severalhouse hunting visits he purchased, in May 1972, a house which he occupied inNovember 1972. In the interim, in July, he petitioned for divorce. On an objec-tion by the wife that he was at all material times domiciled in a State in theUnited States, a preliminary issue was directed whether the domicile of originautomatically revived upon formation of the animus notwithstanding the absenceof the factum. Latey J. had found as a fact that the intention to make a homein England had been made in 1967 and concluded {quaere) that by 1969 thehusband's domicile of origin had revived. On appeal, Davies L.J., presenting theleading judgment of the Court of Appeal, was firmly of the opinion that thedomicile of origin revived "automatically on the intention being formed".110

But which intention, that of intending not to return to the United States orbeing without the intention to return? His Lordship's observations as to this areambiguous. He concluded on the findings as to fact that the operative state ofaffairs was the intention to make England the permanent home, which produced

107. (1869) L.R. 1 Sc. & Div. 441. See, Dicey, op. cit., 1st ed., pp. 118-9.108. Not until 1927 with the coming into effect of the Legitimacy Act 1926.109. [1974] 1 W.L.R. 213.110. Ibid., p. 215. Cf. Lauderdale Peerage Case (1885), 10 App. Cas. 692, 739 per Lord Selborne,"an intention to settle there permanently, sine animo revertendi".

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as a corollary the animo non revertendi: "certainly by 1969, he had intendednot to reside there again but to reside in this country", and he cited a passagefrom In re Marrett lxl to this effect, that "he must have left it, with theintention of leaving it permanently".112 However, he also cited the rule inDicey & Morris 113, which advances the alternative form, and derived assistancefrom the judgment of Megarry J. in In re Flynn, deed. 114 who thought thatthe correct view was that absence or removal sine animo revertendi sufficed todestroy a domicile of choice and to revive a domicile of origin.115 Scarman L.J.agreed that the English domicile of origin revived upon the abandonment of thedomicile of choice and did so automatically without the necessity of the factumof residence in England to supplement the animus. It is curious that his Lordshipalso observed that:

"But it is equally clear . . . that at the time . . . the husband had not returnedphysically to live in England. He had acquired by purchase a house in May 1972. . . but he . . . did not in fact obtain vacant possession or take up residence thereuntil the November following the presentation of the second petition. Thus, atthe critical time, namely the date of the . . . petition, although he had abandonedhis domicile of choice, he had not physically returned to live in the country ofhis domicile of origin. Nevertheless [it] did revive".116

Recalling that Latey J. had found as a fact that the intention to make a homein England had crystallised in 1967, the curiosity lies in the suggestion that thefactum, had it been necessary, as it would in a case of domicile of choice,would have needed to satisfy a qualitative test, Le., to be more than merepresence and to be residence in fact as well as in name, and this despite thefact that the animus already existed. The suggestion gathers strength in that itis clear from the findings of fact as elaborated by Davies L.J. that the husbandhad been present in England on several occasions after the formation of theanimus. One would have thought that the position was clear that where theanimus was established any presence in that intended country would havesufficed to attach the domicile.117 However, it has been observed, with someauthority, that for the purpose of acquiring a domicile of choice residence,"means very little more than physical presence. But it does mean somethingmore: thus a person is not resident in a country in which he is present'casually or as a traveller'. The point has been well put in an American case inwhich it was said that residence was 'bodily presence as an inhabitant' " . 1 I 8

111. (1887) 36 Ch. D. 400,407 per Cotton L.J.112. [1974] 1W.L.R. 213, 215.113. See, now , Dicey & Morris, op. cit., 9th ed. p. 114, rule 13, "by ceasing to intend to residethere". Contra, Cheshire & North, op. cit., 8th ed., p. 173, advancing the opposite view withsome force, viz., "Irresolution effects nothing".114. [1968] 1 A.E.R.49.115. Ibid., p. 58. In most cases it will make no difference which test is applied, as in the presentand see, also, AH v. Ali [1966] 1 A.E.R. 664, 666-67 per Cumming - Bruce J.116. [1974] 1 W.L.R. 213, 216.117. See, particularly, Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 307, 319 per Lord Westbury,supra. See, Dicey, op. cit., 1st. ed., p. 107.118. Dicey & Morris, op. cit., 9th ed., pp. 95-6, citing, Manning \. Manning (1871) L.R. 2 P. & D.

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In the instant case it could be argued that the husband was present in Englandbetween 1967 and November 1972 merely "casually or as a traveller" in thathis presence was confined to his leave periods and was for the dual purpose ofholidays and house hunting. With respect, however, where it is accepted thatthe requisite animus has been formed, to further require that the co-requisitefactum should be more than presence is an unnecessary refinement and indicatesthe tendency to fail to distinguish between the evidential fact of a qualitativepresence, which could support a finding as to residence for other purposes andwhich is relied upon to prove disputed animus, and that residence as a distinctconcept.

This rule of automatic revival of the domicile of origin has been rejected in theUnited States, where an existing domicile is deemed to continue until actuallyreplaced by the acquisition of another.119 In an American case 1 2 0 thisEnglish rule was considered to be an exception to the normal rule of survivaluntil displacement by acquisition, grafted on primarily for purposes of succession.Certainly one can find several early English cases which support such a view.121

The motivation, at least in part, for the exception was the firm belief in thelaw of primogeniture held by the numerous men, especially of English birth,who became traders, etc. in the American colonies, in India and elsewhere,and who desired that their estates should descend according to the establishedlaws of their native land, at a time when men left Europe for the West andEast to make their fortunes, many with the intention of eventually returning tothe land of their birth. At such times transportation was slow and difficult, evenperilous. This view is perhaps supported by the belief at one time current thatnaturalisation was necessary to prove conclusively that a domicile of origin hadbeen abandoned 1 2 2 , and, also, and more strongly, by the refusal of the Englishcourts in the nineteenth century to accept that a European could acquire adomicile of choice in an Oriental country.123 The court in In re Estate ofJones 1 2 4 was not prepared to perpetuate the English rule in times which wereso different from those wherein it had originated. It can, of course, be arguedthat the American alternative "seems no less arbitrary" than the English doc-trine, and that what is important is that, "both of them are designed to ensurethat a personal law shall be ascertainable at all times and in all circumstances

223, 226, and, Re Newcomb (1908) 192 N.Y. 238, respectively. Note that the former was nota decision on the factum necessary for domicile, but on the meaning of "residence".119. Restatement, Second, s. 19, and comment b. Recommended, Private International LawCommittee, 1954, Cmnd. 9068, First Report, rule 13.120. In re Estate ofJones (1921) 182 N.W. 227.121. See, Sill v. Worswick (1791), 1 H.B1. 665, 690 per Lord Loughborough; Somervtffe v.Sommerville (1801), 5 Ves. 750, 787 per Arden M.R.; Ryan v. Ryan (1816), 2 Phill.Ecc. 332,334 per Sir John Nicholl; Curling v. Thornton (1823), 2 Add. 6,15-17 per Sir John Nicholl;Anderson v. Laneuville (1854), 2 Sp. 41, 55 per Dr. Lushington.122. Moorhouse v. Lord (1863), 10 H.L.C. 272, 283 per Lord Kingsdown. See, now, Wahl v.Att.Gen. (1932), 147 L.T. 382, 385 per Lord Atkin.123. Re Tootal's Trusts (1883), 23 Ch.D. 532;Abd-ul-Messtti v. Farra (1888), 13 App. Cas. 431;see, also, supra, n. 154. See, now, Casdaglis. Casdagli [1919] A.C. 145. Dicey, op. cit., lsted.,p. 88.124. (1921) 182 N.W. 227.

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for every individual".125 However this may be, the English concept of domicilehas survived, despite some intense criticism l26, into the second half of thetwentieth century virtually unchanged in its essentials and with the approval, orat least acceptance, of the House of Lords ' 2 7, the Law Commission ' 2 8 , andParliament.129

THE REASONING OF THE LAW COMMISSION

The concept has been equally strongly defended, particularly by the LawCommission, whose argument may be taken as starting with a consideration forthe "many people who still regard themselves as belonging to a country despitethe fact that they are not resident there or may not be citizens of it. We havein mind, for example, those expatriates from this country, who, though livingabroad sometimes almost permanently, yet regard themselves as 'belonging' toEngland".130 For example, "where an English couple have gone, say, to Africato take up a business or professional assignment there, they clearly should notbe denied access to our courts. They have a continuing interest in England andwe have a continuing interest in them and their children. Moreover the countrywhere they reside may have no court to which they can resort in relation totheir matrimonial affairs. To deny them resort to the English courts unless theyresumed residence in England would be unfair. No residence test could meetthis need unless mere presence in England were to be the ground of jurisdictionand that would obviously open the door too widely".131 The conclusion of theLaw Commission is that the great advantage of domicile lies in the fact that itis the only jurisdiction basis which does, or can 132, provide adequately forEnglish expatriates, and, furthermore, that:

"Despite its artificialities, domicile has worked satisfactorily in the majority ofcases and there does not appear to be any strong feeling for its abandonment".13 3

Is it not the case that this great advantage arises purely as a result of the ex-aggerated emphasis that English law places upon intention and the presumptionagainst a loss of domicile, particularly one of origin? Why should a residencetest fail to meet this alleged need? Surely only if the additional requirement of

125. Graveson, loc.cit., p. 39.126. See, e.g., Kahn-Freund (1964), 27 Mod. L.R. 55, 57, "dethrone the superannuated 'domicile'concept of English and Scottish Law".127'. Indyka v. Indyka [1967] 2 A.E.R. 689, 711 per Lord Pearce, "until a question of domicilecomes before your Lordships' House, one must accept the strict test . . . and acknowledge theexistence of the wide gap that lies between our concept of domicile and that of other countries".128. Law Comm. W.P. No. 28, para. 19, "it seems unlikely that any root-and-branch reform ofthe general law of domicile would be possible at present". But, cf. para. 37, infra, n. 131, 133.129. Domicile and Matrimonial Proceedings Act 1973, s. 1.130. Law Comm. W.P. No. 28, para. 5.131. Ibid., para. 37, viz., to forum shoppers.132. See, ibid., para. 34 re the disadvantage of nationality as a jurisdiction base in England.133. Ibid., para. 37; also, Hartley & Karsten (1974) 37 Mod. L.R. 179, 183.

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resuming residence is considered as necessary. If domicile is not lost by absencearising from such a cause why should, say, habitual residence be lost? If thedomicile is retained because the place of work assignment is no more than thatand does not become a new 'centre of gravity' displacing the former 'home',then perhaps there is a case for applying the same reasoning equally to residence.Where the context of 'belonging' in an objective sense, viz. of having and main-taining close connections, has effectively disappeared or substantially dwindledby virtue of living abroad "almost permanently", then the basis upon which theLaw Commission's claims would appear to rest is that undue empasis which isplaced upon the animus.13 4 The implication is that domicile should be retainedin an unaltered form not because, "despite its artificialities, domicile has workedsatisfactorily in the majority of cases", for in the majority of cases a residencetest would work just as well, but because of those "artificialities". The claim ofthe Law Commission ' 3 5 that in the vast majority of cases domicile is generallyan appropriate basis for purposes of jurisdiction is not a justifiable conclusionfrom the fact only that most people have their homes in the country of theirdomicile, although the fact is undoubtedly true. It follows that they have theirhome there according to the exacting test of "home" necessary for domicile. Itwould seem to follow that those people would satisfy a less exacting test of"home". Certainly, it is clear that some people establish a home in a countrywhich is not that of the domicile and it is acceptable that such less exactingtest of home suffices for purposes of jurisdiction in that non-domiciliary coun-try.136 Accordingly, such less exacting test must suffice logically to foundjurisdiction over domiciliaries having such a home in the country of the domicile.As previously indicated, where jurisdiction is founded in England then Englishlaw automatically applies. The distinction for the purposes of the argument liesbetween those who satisfy the less exacting test and are governed by the lexfori, and domiciliaries who are governed by the lex domicilii. In this latter caseone can equally say that there is jurisdiction whenever the personal law applies,insofar as the former must establish a home of some factual content accordingto some objective assessment whereas the latter are under no such obligation,albeit that the majority do so in practice, but need only maintain, and evidence,a subjective intention as to the governing law. Accordingly, jurisdiction will beexercised in the case of a domiciliary who has no home within the territoryexcept a "home" according to that exacting test, viz., he previously had a homein that he manifested the requisite animo et facto and it has not been provedthat he has abandoned the domicile thereby acquired, and not even then inevery case, as with a domicile of origin. If it is alleged that the foundation ofjurisdiction is in practice that of "home", it would appear to follow that it is

134. See, Law Comm. W.P. No. 28, re the objectives of jurisdiction rules, para. 13 (2), "shouldbe such that persons who reasonably regard themselves as belonging to a country should not beexcluded by them".135. Ibid, para. 48.136. See, Recognition of Divorces and Legal Separations Act 1971, s. 3 (1) (b), (2); Domicileand Matrimonial Proceedings Act 1973, s. 5.

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"residence" that is more commonly, and realistically, the appropriate basis andnot domicile which derives its justification and purpose essentially from attitudespertaining to the governing law.

CONCLUSIONS

This is not to say that domicile should be abolished, nor pruned of itsessential elements. The argument lies with the presentation of the domicile con-cept as being essentially a home oriented concept, as being a residential nexuswhich unfortunately over the years has become cumbersome with technicality.The notion of home can now be fairly accurately expressed in other ways, butdomicile can only remain as such while it retains its technicality — remove thatand one produces perhaps home as understood non-juridically, or "domicile" asunderstood by the Council of Europe ' 3 7 , or perhaps habitual residence.

In the circumstance that there exists no concept of English nationality, asdistinct from U.K. citizenship, it is comprehensible that it may be thoughtdesirable to maintain the strict concept of domicile as being a personal law insuch matters as status and succession (and certainly its operation resemblesnationality in this respect). That is a clear issue and amenable to debate on itsmerits. If domicile has such a function to serve then that purpose should beclearly expressed and not presented in the guise that in certain circumstancesit is a desirable advantage of an historical development that may be regretted inthat it is capable of producing what might now be considered to be unfortunateor even harsh decisions but that otherwise does little harm in the majority ofcases. Such a stratagem serves no useful purpose. What would be lost if insteadit was stated that English law should apply to such matters as status and succes-sion where the interests of English expatriates are concerned but that, becausesuch persons would not be able to show a sufficient residential connection withthe forum to justify the assumption of jurisdiction, the use of domicile as achoice of law factor to ensure the application of English law would be defeatedif it were not also employed as a jurisdiction selecting factor. That is theapproach that has now in effect been indorsed by the legislature. One may notagree with it but it is preferable to unconstructive resort to the fiction of the'permanent home'.

137. See, Council of Europe, Standardisation of the Legal Concepts of'Domicile'and 'Residence',1972, Resolution (72) 1 and Annex with Explanatory Memorandum: for the text see (1973) 20Neth. Int. L.K. 213.

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