BATCH 2019-24

PROJECT
Topic

“Critical Appraisal of Law of Domicile in

Private International Law”
Private International Law

Submitted to: Submitted by:

Mr. Bright Phiri, Gaury Singh
ASSISTANT PROFESSOR (PIL) B. A. LLB Hons.,
FACULTY OF LAW, ROLL NO- 91901040009
MARWADI UNIVERSITY

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 DECLARATION BY THE STUDENT

I, GAURY SINGH, certify that the work embodied in this project work, entitled
“Critical Appraisal of Law of Domicile in Private
International Law”, is my own bon-a-fide work carried out by me under
the supervision of Mr. Bright Phiri of Faculty of Law, Marwadi University. The
matter embodied in this Project has not been submitted for the award of any other
degree/diploma.
I declare that I have faithfully acknowledged, given credit to and referred to the
authors/ research workers wherever their works have been cited in the text and
the body of the project. I further certify that I have not wilfully lifted up some
other's work, Para, text, data, results, figures etc. reported in the journals, books,
magazines, reports, dissertations, theses, etc., or available at web -sites and
included them in this project work and cited as my own work.

Place: Marwadi University

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 SUPERVISOR’S CERTIFICATE

This is to certify that the work embodied in the accompanying project entitled
“Critical Appraisal of Law of Domicile in Private
International Law has been carried out entirely by the candidate
AADITYA POPAT under my direct supervision and guidance and that the
candidate has fulfilled the requirements of the regulations laid down for the
partial fulfilment of B. A. LLB Hons. degree examination in the course Banking
and Insurance Law (Semester VIII), Faculty of Law, Marwadi University.

Mr. Bright Phiri

Assistant Professor (PIL Law),
Faculty of Law,
Marwadi University

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 ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and
assistance from the supervisor and I am extremely privileged to have got this all
along the completion of my project. All that I have done is only due to such
supervision and assistance of Mr. Bright Phiri sir. I am thankful to and fortunate
enough to get constant encouragement, support and guidance from him.

Place: Marwadi University

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 TABLE OF CONTENTS

Serial no. Particulars Page no.

1 Introduction 06

2 Historical Evolution of Law of 10

Domicile under Private International
Law
3 Critique of the Law of Domicile under 12
Private International Law

4 Scope for Reforms and Improvement 16

5 Conclusion: A Way Ahead 18

References 19

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 Introduction

Private international law, also known as conflict of laws, is a branch of law that deals with the
resolution of legal disputes that involve foreign elements. One of the key concepts in private
international law is the law of domicile, which determines an individual's legal status and the
laws that apply to them in different jurisdictions.

The law of domicile can be defined as the law of the place where a person has their permanent
home, as determined by various factors such as their physical presence, intention, and other
relevant circumstances. It plays a critical role in determining an individual's legal rights and
obligations, including matters such as succession, marriage, and property rights.

Critical analysis of the law of domicile under private international law involves a
comprehensive and in-depth examination of the theoretical and practical issues surrounding the
concept. It requires a thorough understanding of the various factors that determine a person's
domicile, including the legal rules, principles, and policies that govern it in different
jurisdictions.

Some of the key issues that arise in the critical analysis of the law of domicile under private
international law include the impact of globalization and increased mobility on the concept of
domicile, the role of intention in determining domicile, the conflicts that may arise between
different legal systems, and the need to balance the interests of individuals and states.

Overall, a critical analysis of the law of domicile under private international law requires a
nuanced and multifaceted approach, taking into account the diverse legal, social, and political
contexts in which the concept operates. It provides an essential framework for understanding
and resolving legal disputes that involve individuals with connections to multiple jurisdictions,
and plays a critical role in promoting legal certainty, predictability, and fairness in cross-border
transactions.

1.1.Review of literature

• "The Law of Domicile: A Critical Introduction" by Christiane Wendehorst, published

in the Journal of Private International Law in 2016. This article provides an overview
of the law of domicile, including its historical development and its role in modern
private international law. It also explores some of the theoretical and practical issues
that arise in the determination of domicile.

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 • "Domicile, Habitual Residence and Choice of Law in Private International Law" by
Jonathan Harris, published in the European Journal of Law Reform in 2018. This article
provides a detailed analysis of the factors that determine domicile, habitual residence,
and choice of law in private international law. It also examines some of the challenges
that arise in the application of these concepts in cross-border disputes.
• "The Domicile of Natural Persons in Private International Law: An Overview" by
Vivian Grosswald Curran, published in the Annual Survey of International and
Comparative Law in 2014. This article provides a comprehensive overview of the law
of domicile, including its historical evolution and its current role in private international
law. It also discusses some of the practical and theoretical issues that arise in the
determination of domicile.
• "Globalization and Domicile in Private International Law" by Ralf Michaels, published
in the American Journal of Comparative Law in 2012. This article explores the impact
of globalization on the concept of domicile in private international law. It examines
how the increasing mobility of individuals and the proliferation of legal systems create
challenges for the determination of domicile, and suggests some possible solutions to
these challenges.
• "The Law of Domicile: Some Reflections on the Role of Intention" by David McClean,
published in the Journal of Private International Law in 2011. This article focuses on
the role of intention in the determination of domicile. It examines the historical and
theoretical background of this concept and discusses some of the challenges that arise
in the application of the intention test in cross-border disputes.

Overall, these articles provide a comprehensive and critical overview of the law of domicile
under private international law, highlighting some of the theoretical, practical, and policy issues
that arise in this area. They offer valuable insights into the complex and multifaceted nature of
the concept and suggest some possible solutions to the challenges that it presents.

1.2. Statement of problem

There is a difficulty in determining a person's domicile when they have connections to multiple
jurisdictions. This can create conflicts between different legal systems and make it challenging
to determine which laws apply to an individual in various situations, such as in matters of
inheritance, marriage, or property rights. The determination of domicile can be subjective, and
the factors that determine it can vary significantly between different jurisdictions, creating

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uncertainty and unpredictability in cross-border disputes. Furthermore, the increasing
globalization and mobility of individuals further complicates the determination of domicile and
raises questions about the relevance of this concept in a rapidly changing world. These
challenges in the law of domicile under private international law can create obstacles to the
resolution of legal disputes, and may result in unjust outcomes for individuals involved in
cross-border transactions.

1.3. Objectives

Following are the objectives of preparing the research project on the following topic:

• To provide a comprehensive overview of the law of domicile, including its historical

evolution, theoretical underpinnings, and practical applications in different jurisdictions.
• To identify the factors that determine a person's domicile under private international law,
including the legal rules, principles, and policies that govern it.
• To examine the challenges that arise in the determination of domicile in cross-border
disputes, and to explore some possible solutions to these challenges.
• To analyse the impact of globalization and increased mobility on the concept of domicile,
and to consider the relevance of this concept in a rapidly changing world.
• To assess the role of intention in the determination of domicile, and to explore the
implications of the subjective nature of this concept in cross-border transactions.
1.4. Hypothesis

Here are three possible hypotheses on the law of domicile under private international law:

• Hypothesis 1: The subjective nature of the concept of domicile creates uncertainty and
unpredictability in cross-border transactions, leading to inconsistent outcomes and a
lack of legal certainty.
• Hypothesis 2: The increasing globalization and mobility of individuals undermine the
relevance of the concept of domicile in private international law, making it necessary
to develop alternative frameworks for the resolution of cross-border disputes.
• Hypothesis 3: The determination of domicile in private international law should be
based on objective criteria, such as the duration and nature of the person's connections
to different jurisdictions, in order to promote legal certainty and fairness in cross-border
transactions.

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1.5. Research methodology

The method adopted here is “Doctrinal method” of acquiring information. Doctrinal method
allows the researcher to carry out a detailed historical research (history of law, for e.g.),
whereby the information has been gathered with the use of secondary sources with established
facts and figures, thus aiding in acquiring a better conceptual clarity.

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 Chapter 2

Historical Evolution of Law of Domicile under Private International Law

The inception of the concept of domicile is circled with several misconceptions. Sometimes
the term is confused either with nationality or with residence. The general view about domicile
is 'permanent home' but Lord Cranworth in Whicker v Hume1 . The concept of domicile in
common law is derived from the Roman law. The term domicilium is derived from domum
colere, to foster or inhabit the home. There are three different classes of domicile namely,
Domicile of Origin, Domicile of Choice, and Domicile of Dependence. The rules of domicile
of origin quite satisfactory reflect the social factors. One acquires it at the time of his birth and
because of its strong tenacity it is hard to lose and it automatically revives once domicile of
choice is extinguished. It has proven to be more tenacious in a way that even if a person leaves
his country of origin with an intention never to return back, his domicile of origin survives until
he has acquired a domicile of choice. Corporations are the entities endowed with legal
personality under municipal law, may be likened to physical persons and, on this basis,
regarded as nationals of a particular State. The place of incorporation is regarded as the
domicile of the corporation. Ships are governed by the law of Flag.

Since the origin of the concept of domicile, there have been several misconceptions attached
to it. Sometimes the term is confused either with nationality or with residence. The general
view about domicile is 'permanent home' but Lord Cranworth in Whicker v Hume2 has defined
domicile as-

"By 'domicile' we mean home, the permanent home, and if you do not understand your
permanent home, I am afraid that no illustration drawn from foreign writers or foreign
languages will very much help you to it. I think the best I have heard is one which describes
the home as the place 'unde non sit discessurus si nihal avocet; unde cum profectus est,
peregrinari videtur.' I think that it is the best illustration, and I use that word rather than
definition, to describe what I mean."

A person is said to have domicile in the country where he resides permanently without any
intention of relocating anywhere else. On the other hand, a person does not cease to have his
domicile in a country merely due to the reason of temporary abode elsewhere.

1 (1858) 10 HLC 124

2 Ibid

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The traditional concept of domicile, however, has received criticism from reform agencies in
England as well as in other countries which follow the English common law. This is mainly
due to two grounds, which were also pointed out in 1954 (First Report of the Private
International Law Committee) as follows-

The contention relates to the revival of domicile of origin when domicile of choice is
abandoned without obtaining a new domicile of choice, and the fact that there is heavy burden
of proof on the person who asserts the change in the domicile of origin which seems to be
irrational and unjustified.

The difficulty attached in proving the intention required to acquire a domicile of choice.

The concept of Domicile is crucial since it is the connecting factor traditionally used in
common law systems. There is no uniform concept of domicile and so interpretation of its
meaning is largely left open to the lex fori.

Background of Law of Domicile

Roman law is considered to be the mother of the concept of domicile in common law. The term
domicilium is derived from domum colere, to foster or inhabit the home. Domicile is not any
place of residence but a place of habitual residence. In the ancient times, the ordinary man's
Diocese had authority over him in the Consistory Court in England and a man's domicile in a
Diocese was established by his habitual residence. The Bishop of the Diocese of the domicile
had ecclesiastical jurisdiction and in England this included probate and matrimonial
jurisdiction even before the Matrimonial Causes Act, 1857 and the Court of Probate Act, 1857.
English statutes dealing with marriage characterise the place where a man dwells, of his
dwelling place; and domicilium is a habitation or a dwelling.

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 Chapter 3

Critical Analysis of Law of Domicile

It is common in private international law practice for the court to face some setbacks in
determination of whether domicile or nationality is a determining factor as to the question of
which law should be applied. Nationality represents person’s political status, by virtue of which
who owes allegiance to some particular country 3 . Domicile indicates his civil status4 … a
country in which a person has established his permanent home. Courts have, however applied
either of them to reach just decision, and in picking which should be used among nationality,
and domicile, they have been insuring not only justice is done, but seen to be done, that is to
say whenever courts selected a determinant among the two, courts gave reasons as to why one
is entertained and not the other; those reasons are merits and demerits of those determinants. 5

Merits of domicile:

• Domicile is the only fitting determinant in nations formed by union of states, or federal
form of nations such as United Kingdom, Australia and the United States of America 6 .
• It is more natural and appropriate, as a determinant of personal law domicile is useful
in the sense that, if a person has decided to abandon his country “of origin”, he has also
(automatically) abandoned laws of that country. As natural justice requires one to judge
by laws which bind him, domicile is appropriate.
• Domicile only practical test in certain political units such as UK, US where persons of
same nationality but different legal systems.

Demerits of Domicile:

• Irrational result may ensure, long residence is not equivalent to domicile if accompanied
by the contemplation of some certain event the occurrence of which will cause a
termination of residence7
• Legal or social uncertainties may arise and cause one’s permanent home to be
terminated, expires of living permits, outbreak of civil wars, and etc, a good example
which may cause termination domicile.

3 Cheshire and north, Private international law p159

4 Ibid
5 Ibid, p160
6 Cheshire and North’s, Private international law (2006), p 160
7 Ibid p160

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 • Thirdly domicile is hardly ascertainable, a person should state his intention in order to
ascertain domicile, practically intention of a litigant is elusive, this make it hard to
identify with clarity, it is for the court to decide after going thoroughly through given
facts.

Concept of Domicile of Origin and Domicile of Choice

In case of English law, the domicile of origin is fundamentally different from domicile of
choice. In the words of Cheshire, it differs in its character, in the condition necessary for its
abandonment and its capacity for revival8 .

The domicile of origin when compared with domicile of choice is much more enduring and
less easily shaken off, as already seen in cases like Winans v. A.G, displace a domicile of origin
by a domicile of choice.

Domicile of choice is lost by removal “animo non revertendi9 ”. Here the test of intention is
much less rigorous than in the case of displacing the domicile of origin. Mere absence of any
intention to return to the country of choice will sufficient. The domicile of choice is acquired
by free will; likewise, it can be abandoned by free will. The domicile of origin, on the other
hand is imposed by the operation of law. In other words, the domicile of origin is not a matter
of free will and cannot be extinguished by abandonment.

One cannot lose a domicile of origin by removal animo non revertendi. The domicile of origin
continues to be in operation until it is displaced by a domicile of choice. In leading case Bell
v. Kennedy10 Bell was born in Jamaica of Scottish parents, his domicile of origin being
Jamaica. He was educated in Scotland, but returned to Jamaica on attaining majority about 14
years later he returned to Scotland without any intention of returning to Scotland when his wife
died.

After her death he succeeded in locating a suitable estate which he purchased and it was
admitted that at the time of the trial he had acquired a Scottish domicile but the question in the
case was whether he was domicile in Scotland at the time of his wife death it was held that Bell
was domiciled in Jamaica at the time of his wife’s death. Although he had left Jamaica for good
and been residing in Scotland looking for a suitable place to settle down, evidence showed that
at the time of his wife’s death, his mind was vacillating with regard to the future home. It was

8 Paras Diwan, Indian and English Private International Laws, p.142.

9 By going away from the domicile of origin with the intention of never returning
10 1868 L.R.S.C Divi 307

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held therefore that since he had not at that time acquired a Scottish domicile of choice; he
retained the Jamaican domicile of origin. As at present, one important point of distention
between domicile of origin and domicile of choice is that the former is never lost and is in a
position to revive whereas the latter cannot revive and is lost forever the moment a person
leaves the country of his choice, animo non revertendi.

This doctrine of Domicile also contains provisions and variety of concepts relating to Domicile
of Dependants such as Children and Married Women.

1. Domicile of Married Women

Under English common law, the domicile of a married woman was the same as and changed
with the domicile of her husband. This rule was considered as absolute admitting of no
exceptions, whatever are the circumstances. Historically it was based upon the ancient maxim
of the common law that husband and wife was one and the same person in the eye of the law.
The above rule of unity of domicile of husband and wife had been subject to vigorous criticism
both academic writers and judges. In case In Puttick v. A.G.40the petitioner, a German national
with a German domicile of origin, was arrested in German and charged with a number of
serious offence there, while on bail, she absconded and using an illegally obtained passport
from German national, come to England and married an English man in 1975.

The question before the court was whether she had acquired an English domicile. It was held
that rule of unity of domicile of husband and wife had been abolished by the Domicile and
Matrimonial proceedings Act,1973 and that, therefore she did not acquire a domicile in
England. The court further held that she did not and could not acquire a domicile of choice in
England as she was staying England to avoid trial in Germany and not to setup a permanent
home the illegal entry and residence according to the court, barred her from acquiring an
English Domicile of choice. But India the now completely outmoded legal concept of the unity
of domicile of the husband and wife continues to be in force unaltered.

Section 15 &16 of the Indian Succession Act are based upon the old English rule. The common
law countries earlier followed English Common Law Rules. The rule that married women had
the domicile of their husband has however, been abolished in Australia, Canada, the Republic
of Ireland, and New Zealand so that in all these countries, a, married woman is treated as having
an independent domicile like any other person.

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 2. Domicile of Children

At common law, where legitimating by subsequent marriage was effective, a legitimated child
is to be treated as if it was legitimate. The rule of legitimating by subsequent marriage is
unknown in Indian law, through Muslims can acknowledge that an illegitimate child is
legitimate; this can however, be only done if it is uncertain whether the parties were married,
and not if it is established that they were not.

3. Domicile of Illegitimate Children

At common Law, in the other Common Law countries, and in India, the domicile of an
illegitimate child was that of his mother. In Australia the status of illegitimacy no longer
subsists in law; the domicile of an illegitimate child, called ex-nuptial child is determined the
same way as that of a nuptial child, its domicile is that of the father, if the parents are living
together and with the parent the child is living with if the parents are separated .

4. Domicile of Adopted Child

What is the domicile of dependence of an adopted child? Does the domicile of the minor child
change to that of the adopting parent? Or does it continue to be that of the natural parent? There
is no English authority on this question it has been suggested by Dicey that the domicile of an
adopted infant is the same and change with the domicile of the adopting parents. These accord
the principle that on adoption, the legal consequences of the natural relationship of the parent
and child are extinguished and re- established as between the adopter and child. In Indian law
there is Madras High Court decision that the domicile of the adopted child is the domicile of
the adopting parent.

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 Chapter 4

Scope for Reforms and Improvement

The law of domicile is generally criticised for its two aspects-

• Tenacity of domicile of origin, and

• Its principle of revival

Among all the three types of domiciles, this is only the domicile of origin which has been
subjected to plethora of law reform proposals since the 1950's. In 1950, Lord Chancellor asked
the Private International Committee for the desirable amendments in the law of domicile. The
Committee published its report in 1954, in which it criticised the domicile of origin due to
attaching unnecessary importance to its rule of automatic revival on aband oning the domicile
of choice without the acquisition of new one. These proposals were again taken up twice to the
parliament in the form of Domicile Bills of 1958 and 1959.

But it failed to become the law because if it was legislated then many American businessmen
living in United Kingdom would have become prone to double taxation. This would have
discouraged the foreign businessmen to invest in England and would have affected the
economy of the country. Proposals for the reform of law of domicile and in particular the
abandonment of the revival rule of the domicile of origin continued till the mid 1980's. Law
Commission Working Paper 88 examined the desirability of substitution of domicile with a
different connecting factor. It proposed the possibility of replacing domicile by the concept of
habitual residence or nationality. Nevertheless, it was concluded that domicile should continue
to be used as a connecting factor.

In 1987, the Law Commission compiled its report after receiving the comments and views on
the 1985 report. This proposal was an important step towards the process of improving
effectiveness and fairness of the English rules of the domicile of origin. If it was adopted, it
would have abolished many difficulties which prepositus has to face since it eradicated the
tenacity and revival of domicile of origin and also it cleared that the standard to prove the
change of the domicile of origin is that of a civil standard.

Thus, time and again variety of reforms have been suggested, yet being a rather confusing and
ambiguous piece of legislation, A lot of work has to be done by the legislature to bring certainty

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in the concept of Domicile and proper demarcation is also required to be done as far as
Domicile of an individual is concerned, on the basis of either Origin or Choice.

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 Chapter 5

Conclusion

There is a field of law known as private international law that deals with a person's interaction
with another person as well as with nations outside the country's borders. Nationality, domicile,
and conflict of laws are all part of it. To seek political and international protection, nationality
is a bond that binds an individual to a state. It is a person's "regular place of habitation."
Household rules are vital. Everyone is born with a place of origin that is hard to leave behind
and harder to re-acquire later in life. It's also possible to acquire a domicile of choice, which is
where a person plans to live indefinitely. It's possible that some people aren't recognized as
citizens by any country. Many examples have been reported where individuals had no
nationality, leading to statelessness, even though one of the principles of nationality is that
everyone should own a nationality. As a result of statelessness, people are deprived of social
and political rights as well as state protection. To be sure, international treaties were drafted to
eliminate statelessness. Listed above are a few tips and steps to help tackle this issue, but there
are many more.

There has been a lot of hue and cry and complex confusions in the meaning of the terms
Domicile, Nationality and citizenship while studying either Private International Law or Public
International Law. The term nationality signifies the politico-legal status of an individual
belonging to a particular state while the term citizenship is often used in municipal law.
Generally, the national who enjoys full political and civil rights is called a citizen. Domicile,
on the other hand, is an attribute of nationality and denotes a person’s place of residence and it
is the relationship between the individual and locality, where that person has his permanent
home. Therefore, it is quite possible that a person may be national of one State while domiciled
in another state and resolving the complexities of these terms mitigate almost half of the
international issues by providing the appropriate forum to deal with specific nature of the issue.

The law of domicile in India is crystal clear and is free from any ambiguities. The same is
important for resolving the “conflict of laws” in India. There seems to be an ignorance of the
concept in its true perspective in India. There is an urgent need to spread “public awareness”
in this regard. Particularly in India there is lack of provisions with regarding to domicile.
Decided cases are based on English laws only. But English laws and Indian laws both are
similar to each other.

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References

• Cheshire, North, and Fawcett's Private International Law (15th ed., 2017) by J. J.
Fawcett, M. J. Carruthers, and J. H. Castellino.
• Dicey, Morris, and Collins on The Conflict of Laws (15th ed., 2012) by Lawrence
Collins.
• Iudica, L. (2019). Domicile in Private International Law. Oxford University Press.
• McEleavy, P. (2017). Domicile under the EU Succession Regulation. International and
Comparative Law Quarterly, 66(4), 885-906.
• Wolff, R. (2013). Conceptual Unity of Domicile in Private International Law. Hague
Journal of the Rule of Law, 5(2), 363-382.
• Yip, P. (2019). International and Comparative Law on the Concept of Domicile: An
Overview. Journal of Private International Law, 15(1), 6-40.
• Zimmermann, R. (2017). The Law of Domicile: An Introduction. Oxford University
Press.

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