Importance of the Domicile

Domicile is that document which is essential or important for all the individuals of this world. The domiciles determine the rights and privileges of a person and his obligations towards the law of land of which he or she has got the domicile. Domicile is considered as a very potent factor in determining the successors of the property after the death of the person. The legal experts have given lot of explanation on the domicile and these different interpretations have resulted in many problems, such as can a person have a domicile if he is a habitual residence or a person can only have domicile of a country which he considers it to be his permanent home. The concept of permanent home is rejected by lot of jurists and it is explained thoroughly by Morris in his book conflict of laws that “a person can have a domicile of a country whether he or she has got a home or not and a person can only have one domicile if that person has got lot of homes. He says there is a gap in the practical implementation of the domicile while relating it with home”. [1]

The concept of domicile can be separated from the idea of home in three different perspectives. The first different is that the conditions of acquiring domicile are very much different from those which are required for getting a home and secondly law assigns a domicile to everyone irrespective of fact they have a home or not as we know a home less poor person has got a domicile. and the third most significant approach towards that issue of permanent home and domicile is that a person under sixteen years old cannot have a domicile but they can have a permanent residence or home in that place of which they are not domiciled. One must have no doubt that domicile is consider as a link between an individual and the state and the law of land of which he is domiciled is applicable to him for various different purposes and it is consider as a settled principle that and individual must not be without a domicile [2]

GENERAL PRINCIPLES OF LAW

There are four general principles of law and the first one is that every one should have a domicile and the law assigns to a person domicile of his father when he is born if the born child is legitimate and in other case if the child born is illegal the child will have the domicile of his mother [3] and these types of domicile are called domicile of origin. And this principle shows that the domicile of an offspring depends on the domicile of parents.

The second general principle is that a person cannot have more than one domicile for the same purpose as explained before the domicile is consider as a link between an individual and a state if he would have more than one domicile than in such a scenario he would b subject of two sate laws and this aspect seems impracticable as it was point out by Lord Hatherley L.C that in our legal system a man must have domicile and a singe domicile.

The third principle regarding the domicile is that until or unless it is not proved that a person has got a new domicile it will be presumed he has the old domicile and the burden of proving will lie on that party who state that the person has changed the domicile [4] but few jurists argue that the burden of proof is subject to change depending on the kind of the domicile and “the burden of proof is consider fragile when the domicile of question is domicile of dependence and very strong when the kind of domicile is of origin” [5] .the last principle of domicile is that the law of forum( lex fori) will determine what is the meaning and where it is applicable.

DETERMINATION OF THE DOMICILE

The domicile is considered as a very important document in ones life and the determination of domicile is very essential to claim for the rights and privileges. The rules for determination of domicile are related with the kinds of domicile and during discussion of the kinds we will be able to analyze the rules that explains person domicile.

KINDS OF DOMICILE

There are three kinds of domicile, Domicile of Origin, Domicile of Dependence, Domicile of Choice.

DOMOCILE OF ORIGIN

As discussed above already a person at the time of his birth will acquire the domicile of his father and in case if the born child is illegal than the child will have the domicile of his mother and in case the child is legal but the father dies before the birth of child than in this case the child will have domicile of the mother. The domicile of child dose not believe on the fact that where he was born as in a very famous case of Udny v Udny (1869) Colonel Udny was born in Italy and lived there as his father was British Consul and his father domiciled was of Scotland and as a result Colonel Udny domicile was also of Scotland not of Italy [6] .

The domicile of origin is consider as more firm than any other kind of domicile as this is consider as a last hope or factor to connect an individual with a state and the edge of this kind over the others is that it cannot be abandoned but can only be lost by acquiring the domicile of choice. A case study of Bill V Kennedy will also make this point clear; B was born of from Scottish parents having the domicile of Jamaica after marriage B went to Scotland for better future for some time he remained uncertain to leave Scotland or stay eventually he decided to stay. It was held by the judge that when B was uncertain to settle he had the domicile of Jamaica that of his origin which will only be lost when he acquires a new domicile of choice [7] .

DOMOCILE OF DEPENDENCE

A person can keep its domicile of this kind until or unless he is able to get domicile of his own choice by his own actions. Before the enactment of Domicile and Matrimonial proceedings Act 1973 the dependent will have the same domicile on whom he is legally dependant but this act has brought some changes in determining the domicile of minors and women. Before the enactment of this act a women was to have domicile of her husband and that would change with a change in husband domicile without her consent [8] after the enforcement of the Domicile and Matrimonial proceedings Act 1973 the women were liberated from this malpractice act or procedures regarding acquirement of domicile and Lord Denning said it was “the last barbarous relic of a wife’s servitude” [9] . According to the above mentioned act a women can have an independent domicile in the same manner as any other individual can have and women will have previous domicile until she doesn’t get new domicile either by choice or in other way she wants to reactivate her domicile of origin.

This explanation has been confirmed or upheld judicially in I.R.C. v Duchess of Portland. In this case women married a man who had a domicile of England and she had the domicile of Quebec by origin. After marriage she often visited Quebec and maintained a home out there and her husband had promised her to return Quebec after retirement and she had the intention to return there if her husband dies. In a dispute against I.R.C the Inland Revenue claimed that she has English domicile therefore bound to pay more tax. In the decision it was held by court that she has English domicile as domicile of her choice and dependency as the domicile of choice can be abandoned if she has no intention of living in England or she stops living in England. [10]

As we know a child cannot have his own domicile of choice if the child is legal he will have domicile of father and if illegal he will have domicile of mother. In case if a child is found some where than the child will have the domicile of that place where he was found. The legal child will have the same domicile of father after his death till the child becomes 16 years old. After this the domicile will become domicile of choice if mother changes her domicile while child is a minor it is not necessary that the domicile of child will change. The Mother can only change her child domicile if it is in the welfare of the minor [11] .

According to section 3 of Domicile and Matrimonial proceedings Act 1973