Domicile is entirely a legal concept. Domicile is a deemed connection to a particular legal system. My domicile determines which personal law applies to me. A married Muslim with England and Wales domicile may go through a ceremony of marriage in a Muslim country. By the local law the marriage is valid but our courts will not recognise his second marriage because the man has England and Wales domicile which does not permit polygamous marriages.
Application of domicile
In the case of a child born of refugees or immigrants or expatriates the child’s domicile may, by operation of law, be that of a country he has never seen and of which he is not a national. In certain circumstances a person’s domicile may be that of a country in which he is an illegal immigrant[1] or even where he is detained and a deportation order against him has been signed[2].
There is no “American domicile” or “British domicile”. Each state and territory of the United States of America has its individual legal system and hence its individual domicile but there is no generic American domicile. The United Kingdom has domiciles of Scotland, Northern Ireland, and England and Wales. Close to us are the Isle of Man and numerous Channel Islands, each of which has its distinct legal system and hence its distinct domicile.
What do we mean?
There is a theoretical question of whether after Devolution Wales really has the same legal system as England, but as that is not relevant to this thesis I shall assume that there is no significant difference. The domicile of “England and Wales” is described throughout as “England” or “English”, but Wales is always meant to be included.
If I have domicile of England and Wales I have domicile of the whole of England and Wales, from Northumberland to Cornwall and Pembroke, even if I have never left Yorkshire. Should Yorkshire leave England and Wales my Yorkshire domicile will retrospectively always have been Yorkshire.
There is often linguistic confusion between domicile and “habitual residence”, and confusion between nationality and domicile.
History of domicile
There is a long history to the law of domicile. The Greeks and the Romans frequently found they had communities of aliens in their cities, or within their empires, which followed their native laws and customs in their own communities. They asked the Greek or Roman municipal courts to resolve disputes arising from agreements made amongst them. These agreements implicitly and sometimes explicitly imported the law and thinking of their home communities.
Justinian distinguished between the “universal law” and the “civil law”.
“Every people which is governed by laws and customs uses partly a law peculiar to itself, partly a law common to all mankind. For the law which each people makes for itself is peculiar to itself and is called the civil law, as being the law peculiar to the community in question. But the law which natural reason has prescribed for all mankind is held in equal observance amongst all peoples, and is called universal law, as being the law which all peoples use. Thus the Roman People uses a law partly peculiar to itself, partly common to all mankind.”[3]
Every conqueror has had to decide whether to attempt to enforce its law and customs or whether to allow subject peoples to continue to operate under their traditional laws and customs.
Machiavelli recommends
“If the ruler wants to keep hold of his new possessions, he must bear two things in mind: first that the family of the old prince must be destroyed; next, that he must change neither their laws nor their taxes.”[4]
What happens when you have not conquered the aliens but they have voluntarily chosen to live in your country? If there is economic benefit from having them live with you, there is an incentive to recognise their customs and laws.
Only one domicile
The law of domicile which grew up in England (and Wales) has integral to it the concept that each individual has a permanent home.
“A person may be said to have his home in a country if he resides in it without any intention of at present removing from it permanently or for an indefinite period. But a person does not cease to have his home in a country merely because he is temporarily resident elsewhere; and a person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.”[5]
A person notionally always has a domicile, and only ever has one domicile at a time.
“It is a settled principle that no man shall be without a domicil; and to secure this end the law attributes to every individual as soon as he is born the domicil of his father if the child be legitimate, and the domicil of his mother if the child be illegitimate. This is called the domicil of origin, and is involuntary. It is the creation of law – not of the party. ..
…It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which put an end to the statis civilis of the criminal; but it cannot be destroyed by the act or will of the party.” (Lord Westbury in Udny v Udny[6])
Domicile of origin
The principle is that every person starts with a domicile of origin .This is usually the country in which he was born. In rare circumstances he may start with a domicile of dependency. If both parents are French citizens domiciled in France, and a child is born unexpectedly early whilst the parents are on holiday in London, it would be nonsense for the child to have English domicile. It clearly has a domicile of dependency in France and so the child has French domicile of origin.
The child’s nationality may be affected by its place of birth, particularly in countries which operate jus soli. In the case quoted above, Udny v. Udny[7], Colonel Udny had a Scottish domicile of origin despite being born in Leghorn, Italy because his father’s domicile was Scotland.
Domicile and citizenship are not connected in that one can quite easily have domicile in a country of which one is not a national, and vice versa. One may have more than one nationality simultaneously, but only one domicile at a time. A person may be stateless, but a person is never without a domicile.
It seems that for children born in wedlock, father’s domicile prevails[8], but for children born out of wedlock or after the death of the father the mother’s domicile prevails[9]. Although legitimation by the marriage of the parents does not retrospectively change the domicile of origin, adoption does! Adoption will also often retrospectively change a child’s nationality.
Domicile of dependency and domicile of choice
It used to be that when a woman married she was deemed to have a domicile of dependency upon her husband, but that has been abolished in most jurisdictions including England. It was only abolished in England in 1974 and a woman who married prior to that date and was therefore deemed to take her husband’s domicile and still has that domicile unless she has actively changed it.[10]
One loses a domicile of origin by acquiring a domicile of choice and hence abandoning one’s domicile of origin. Most domicile cases turn on whether the person has changed domicile by acquiring a domicile of choice. In the vast majority of cases there is no issue as to the person’s domicile of origin. Where there is an argument it is almost always whether he has acquired a domicile of choice hence abandoning his domicile of origin, or whether that domicile of choice has been abandoned so that the domicile of origin revives, or whether a further domicile of choice was acquired.
New Zealand and Australia and most American states have abolished the revival doctrine[11]. Given those countries were founded on immigration, the idea of “the huddled masses yearning to breathe free[12]” retaining their domiciles of origin is ridiculous and impractical.
Passage of time
“Acquired” is an interesting word used in respect of domicile. It does not mean “purchase”, but it is necessary to do some positive action or demonstrate some positive intent to attain a new domicile. A new domicile does not arise by mere effluxion of time, as exemplified by the case of Bullock[13] (see below) where 40 years residence in England was not conclusive. In Khanchan Bibi and Anwar Khatun (12488) [1995] a Bangladesh sponsor was held to have retained domicile of origin in Bangladesh despite being resident in the UK since 1946 and registration as a British Citizen in 1951.
Domicile of choice
“A domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time” Lord Scarman in Buswell v. IRC[14]
This was expressed by Lord McNaghten in Winans v. AG[15]
“whether the person whose domicile was in question had “determined” to make, and had in fact made, the alleged domicile of choice “his home with the intention of establishing himself and his family there and ending his days in that country”
“A natural-born Englishman may domicile himself in Holland; but if he breaks up his establishment there and quits Holland, declaring that he will never return, it is absurd to suppose that his Dutch domicil clings to him until he has set up his tabernacle in another country” (Lord Westbury in Udny v. Udny[16][3])
One retains the domicile of choice until such time as one acquires a new domicile of choice or abandons the domicile of choice whereupon (see below) the domicile of origin revives.
Errol Flynn
In Flynn[17] (the actor Errol Flynn) the question arose as to whether a domicile of choice had been abandoned.
Megarry J. after discussing the authorities concluded
“The standard of proof is, I think, the civil standard of a balance of probabilities, subject to the overriding consideration (which I borrow from his[18] judgement) that so serious a matter as the acquisition of a domicile of choice (or for that matter, I think, the abandonment of a domicile) is “not to be lightly inferred from slight indications or casual words”
“If the mere absence of any animus revertendi suffices, as I think it does, I hold that the change occurred when he left Warner Brothers and went to Italy, and this seems to have been in October 1952.”
“The totality of the evidence satisfies me that probably by August, 1958, and certainly by the time of his last arrival in May or June, 1959, Jamaica had become Errol’s home and that he was domiciled there. His Jamaican domicile thereupon ousted his domicile of origin. His work might continue to take him to many parts of the world for long periods; but Jamaica had become his centre of gravity…..What at first, while he was still domiciled in California, may merely have been an investment, a dearly loved holiday resort and possibly a place of future retirement, had, in addition, when he abandoned his California domicile, become his permanent home. Indeed it would have been strange if, loving the place as he did, Errol had not regarded it as his home when he had no other, and was making and putting into effect such expensive plans for erecting a house there to his exact specifications…”
[The plans included a refrigerated room for keeping his film archive – a necessity in the climate of Jamaica.]
Continuance of domicile of origin
There[19] is a very strong presumption in favour of the continuance of the domicile of origin. In contrast to domicile of origin
“its character is more enduring, its hold stronger and less easily shaken off.”[20]
The intention to settle permanently (i.e. to abandon an earlier domicile) must be ascertained by objective criteria. Statements about domicile in a will[21] or a statement of intent to live in the UK on an application for citizenship[22], or even statements on a domicile questionnaire[23] are not conclusive.
The evidential burden of proving that a change of domicile has taken place is upon he who alleges it.[24]. If the burden is not discharged the domicile of origin or the previous domicile will remain.[25]
The abandonment of a domicile of origin is easier than its acquisition, although there must be unequivocal evidence of abandonment.[26] It is not necessary to prove acquisition of a new domicile because the domicile of origin simply revives.
Linguistic Confusion
Domicile is sometimes confused with “ordinary residence” or “habitual residence”. Domicile is derived from the Latin “domus” or “home”. Many UK students live at least part of each year away from home, and have no difficulty between “living” or being “resident” in their University town but having a “home” elsewhere. If Lahore University offers me a one year visiting professorship I may enjoy Pakistan but my “home” is in England. I might take up permanent employment in Bahrain, but this does not mean my “home” is Bahrain. After 5 or 10 or 20 years there I might think of Bahrain as my home, and now I have Bahrain domicile. Alternatively I might always just be there for the job and have no intention of ending my days there. My domicile remains England.
Linguistic confusion is common for two reasons.
(1) The Europeans have a different view of domicile than does England, and their view of domicile is more closely allied to residence. This finds favour in some International Conventions such as Article 5 of the 1955 Hague Convention[27] where habitual residence is equated with domicile.
In the 1989 Hague Convention[28] the word “domicile” is not used in the French original although it is implied by the use of the phrase (in translation) “most closely connected”[29].
(2) The second reason is the approach of Australia New Zealand and most American states described above (see Footnote 11).
Why is domicile important?
Domicile is an important starting point for
- questions of tax and for validity of marriage,
- validity of divorce or divorce “obtained by means of proceedings”[30],
- jurisdiction of the court to entertain divorce proceedings[31],
- and wills[32]
- and other issues of personal law such as legitimacy,
- applications under the Inheritance (Provision for Family and Dependents) Act 1975[33],
- the making of an adoption order under the Adoption Act 1976 s14,
- or a parental order under the Human Fertilisation and Embryology Act 1990 s30.
In the case of intestacy, logical arguments could be made for assets to pass
· According to the law governing the place of the person’s death
· According to the law where each asset lies at the date of death
· According to the law of the person’s nationality (but what if he has more than one nationality?)
By long custom and recent International treaty[34] a decision is made on domicile, and the assets pass upon the law of that domicile. This has been eroded by the national laws of some countries. In some circumstances, countries other than the country in which I am domiciled at the time of my death may claim tax or other rights over my estate. For example s1(2) of the Muslim Family Laws Ordinance 1963 of Pakistan says that the estate in Pakistan of all Muslim Pakistan citizens shall be administered in accordance with Islamic Law regardless of domicile. See Yusuf Abbas v. Ismat Mustafa 1968 PLD Karachi 480 at 502, quoted in Pearl.
The United States government claims to tax the world wide income and estates of all citizens and residents of the United States, regardless of domicile[35]. There is currently political controversy in the United States about tax rebates being paid to illegal immigrants.
In an Australian case Haque v. Haque[36] the deceased had children by a second Islamic marriage in Australia. Australia did not recognise the second Islamic marriage, and under Australian law the children of that purported marriage had no right to inherit. An Australian court decided it had to apply Indian law to the estate of the deceased because his domicile was India. Under the law of India the marriage was recognised and the children could inherit.
A Canadian man called Bullock came to England in 1932, to join the RAF. He was still living here in 1976. The domicile[37] question was important, because virtually all his assets were in Canada and the Inland Revenue wanted to tax his Canadian income, saying that after 40 years of residence here he had acquired English domicile.
An American man called Robert Moore died in England in 1997. At the time of his death he was technically an illegal immigrant. If he had British domicile his entire estate was subject to UK tax. If not his estate only had to pay UK tax on his UK assets[38].
Two recent cases are Morgan v. Cilento[39] and Agulian v. Cyganik[40][11]. In the first case the lover of the deceased at the time of his death wished to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. She needed to show that his domicile at the date of death was England as no similar legislative provision existed in Queensland Australia. She needed to show the deceased had never lost his English domicile of origin or alternatively had abandoned his Queensland domicile of choice and his English domicile of origin had revived. In the second case for similar reasons the fiancée needed to show that the deceased had abandoned his Cyprus domicile of origin and had acquired domicile of choice in England.
Illegal Immigrants
An enormously important case for thousands of illegal immigrants of all descriptions is Mark v. Mark[41] where an illegal immigrant was held to be domiciled in the UK for the purposes of instituting divorce proceedings. Had she failed, she would have had to go to Nigeria and divorce her husband in the Nigerian traditional courts. Her financial prospects in those courts were less attractive than through the UK courts. Given the very important position her husband held, she might have had great difficulty obtaining a judgement and enforcing it. If one had negative perceptions about barristers, lawyers, or third world Army generals this case would confirm them.
Martin: Fugitive from justice
A challenging and educative case around domicile is “In re Martin, Loustalan v. Loustalan[42]”. A will was written in French by Miss Loustalan an unmarried French citizen living in London, executed in the French form rather than the English form and registered with a notary in France according to the French system. If at the time of executing the will she had English domicile the will was void because under English law it was not properly executed. If her domicile was France, it was valid under French law and would be recognised by the English courts.
The first complication in the case is that under French law she had English domicile because under French law as it then stood a servant had a domicile of dependency upon her [English] employer, but under English law she almost certainly had French domicile.
Her only significant asset at the time of making the will was an entitlement to a share in the estate of her father who had died in France not long before. One question before the court was whether the will was valid when made, and under which system of law, which turned on her domicile at the time of making the will.
Eventually Mme Loustalan left her job in domestic service and set up a successful laundry business. Later she married a Mr Guillard, who in England called himself Mr Martin. He used a false name because he was wanted in France to serve a sentence of 10 years imprisonment for dishonesty[43]. The court decided that although his domicile of origin was France, the fact that he could not go back to France at the time of the marriage, that he married in England but did not register the marriage in France, coupled with the later purchase of property in the UK and that he did not go back to France as soon as it was safe to do so meant that by the date of his marriage he had abandoned his domicile of origin and had acquired a domicile of choice in England.
Hence when Miss Loustalan married Mr Martin she acquired a domicile of dependency of England. Under English law a will is cancelled on marriage but in French law it is not. So could a marriage conducted when she had French domicile but which gave her English domicile cancel the will?
The marriage was celebrated by a French Roman Catholic priest in a Roman Catholic Church in the presence of a Registrar. Another question was whether the marriage was celebrated under English matrimonial law or French matrimonial law (even though not contemporaneously registered)? The significance of that question is that French law dictates certain assumptions about matrimonial assets in the absence of a written contrary agreement. (See De Nichols v. Curlier[44][3] below).
Before Ms Loustelan’s death her husband had returned to France, and had resumed French domicile. What therefore was Ms Loustalan’s domicile at the time of her death? Given that the husband had returned to France and resumed French domicile, did this mean that his wife also had French domicile under the doctrine of dependency, even though they had in effect separated and she clearly had the intention of living in England and not in France? The court said “yes”.
The case is even more complicated, because her brother in England did not know about the will and obtained Letters of Administration on the basis that there was no will. The sister in France obtained recognition of the will by a French court ex parte. Which prevailed?
There were other potential complications to the case!
“Early in the case I decided that, in my judgement, the domicil of the husband at the time of the wife’s death (which is a material point, inasmuch as the domicil of the wife is the domicil of the husband) was French, because that was his domicil of origin, and I do not think anything took place to disturb that domicil.
Then comes a further question: supposing that had been the only question, and supposing I had held that the domicil of the husband was French altogether, I think no further question would arise, at any rate as to the main points raised; but supposing it were possible to say that the domicil of the husband, although French according to English law was English according to French law, then I think some very difficult questions would arise…..”
The President (Sir F.H. Jeune) in In re Martin, Loustalan v. Loustalan[45]
Sir F. H. Jeune was President of the court from which Loustalan was appealed to the Court of Appeal. In his view Martin never acquired English domicile, which would mean the wife’s will was not cancelled unless she already had English domicile at the time of marriage. There is much to commend Jeune’s judgement but it was overturned at the Court of Appeal.
Domicile and Marriage Property
Another really interesting case is De Nicols v. Curlier[46]. This was going through the House of Lords at the same time as In re Martin, Loustalan v. Loustalan was going through the Court of Appeal. Mr De Nicols founded the famous Café Royal in London and had become very wealthy. Under French law[47] as it stood at the date of marriage in France in 1854 and still stood at the date of judgement in 1899, when a couple married their property rights were determined by law[48] unless they agreed differently in writing at the time of marriage.
Could this contractual or semi-contractual arrangement change simply because the parties changed their domicile? At that time under English law a wife was held to have a domicile of dependency on her husband, and could not have a different domicile. Mr De Nicols became British and made a will in English in London leaving his assets as he wished rather than according to French law. He (and she) had clearly acquired British domicile. As the English law stood at that time Mrs. De Nichols could not claim the immoveable property but she claimed such share of the moveable property as she was entitled to under French law. The court held that the change of domicile did not affect the semi-contractual rights in moveable property from the French marriage.
Domicile and wills: Renvoi
In Collier v. Rivaz[49] the deceased had lived in Belgium a long time, and in the English sense had acquired Belgian domicile. However he had not acquired Belgian domicile under Belgian law, because he had not formally applied for residency, a requirement under Belgian law. His will and two codicils to his will were executed in the Belgian format and were accepted to probate in England. Four codicils executed in Belgium but in the English manner should have been refused as not having been executed according to the local law. On hearing evidence that had the deceased been domiciled in Belgium the Belgian courts would have accepted them, the British court decided to accept them. This principle of doing what the court of domicile would do is called renvoi .
Haque v. Haque above is an example of renvoi.
How the English courts decide questions of domicile
In the vast majority of cases domicile is simply not relevant. Where domicile is relevant it is frequently not in dispute. The decided cases therefore arise from where the answer was not clear.
The courts do not ask or declare the date upon which domicile changed, because this is extremely difficult to determine, and is more exact than is necessary. The important question, and hence the usual question is
“What was this person’s domicile on the relevant date” (death, second marriage etc).
The living witness
An obvious thing to do is to ask the person if living what his domicile was on the relevant date. Asking a live person is often not helpful because the individual or someone close to him will have a financial or other interest in the case. Even someone who is honest may remember “with advantages”[50].
There is also the strong likelihood that the person may not at the time have had any clear thoughts about domicile, or may not have been aware of the distinctions between domicile and say “ordinary residence” or “habitual residence”. Now that he is aware his recollection may be affected by that knowledge[51].
Change of domicile
Where the person is deceased this avenue is not open. Even if he made a domicile declaration in his will this will probably be for tax avoidance purposes and hence is of dubious value. Also his mind might change between making the will and his eventual death.
What the deceased said to others may simply have been to “keep them sweet” or be misremembered or distorted[52].
Buckley, J. made a good statement of the law in the Court of Appeal in Inland Revenue Commissioners v. Bullock[53]
“As long ago as 1865 Turner said in Jopp v. Wood (1865) 4 De G.J. & Sm 616, 621 that nothing was better settled with reference to the law of domicile than that the domicile can be changed only animo et facto; that is to say by intention as well as action. The necessary act is that of taking up residence in some country other than the country of the domicile of origin. There was no dispute in the present case about the taxpayer having taken up residence in England. What his intention was in so doing is a matter of fact. What we have to determine is whether that intention was such as to clothe his residence in England with the necessary quality to result in his having adopted a domicile of choice in England…….
….The intention which must be sought is an intention on the part of the person concerned to make the new country his permanent home.
In Whicker v. Hume (1858) 7 H.L. Cas 124, 160 Lord Cranworth said
“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.”
In Lord v. Colvin (1859) 4 Drew. 366, 376 Kindersley V.-C. said
“ I would venture to suggest that the definition of an acquired domicile might stand thus: that place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with the present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.”
When that case reached the House of Lords under the name of Moorhouse v. Lord (1863) 10 H.L. Cas 272, Lord Chelmsford, at pp 285-286 criticised this passage in the Vice Chancellor’s judgement as follows:
“Now this definition,….”
he was referring to a definition propounded by counsel,
“….and that of the Vice-Chancellor appear to me to be liable to exception, in omitting one important element, namely, a fixed intention of abandoning one domicile and permanently adopting another. The present intention of making a place a permanent home can exist only where he has no other idea than to continue there, without looking forward to any event, certain or uncertain, which might induce him to change his residence. If he has in his contemplation some event upon the happening of which his residence will cease, it is not correct to call this even a temporary intention of making a permanent home. It is rather a present intention of making a temporary home, though for a period indefinite and contingent. And even if such residence should continue for years, the same intention to terminate it being continually present to the mind, there is no moment of time at which it can be predicated that there has been the deliberate choice of a permanent home.”
At p 286 Lord Chelmsford referred to what had been said by Lord Wensleydale in Aikman v. Aikman (1861) 4 L.T. 374 as laying down the rule upon this subject very clearly:
“Every man’s domicile of origin must be presumed to continue until he has acquired another sole domicile by actual residence, with the intention of abandoning his domicile of origin. This change must be animo et facto and the burden of proof unquestionably lies on the party who asserts that change.”
….In truth the insistence of Lord Chelmsford upon the importance of finding a fixed intention of abandoning one domicile and permanently adopting another is but a method of emphasising the importance of finding that the person in question intends to make his new country his permanent home. The abandonment of the previous home is implicit in the adoption of the new home”
A person who is a prisoner, in a mental hospital, or in the armed forces has no choice about where he is. His residence during this time is not indicative of anything to do with domicile because quite literally he has no power to choose. This is probably also true for a child, because the child[54] has no legal entitlement to choose where he lives.
What is acceptable evidence?
So how do the courts establish what was in a man’s mind at the relevant date? Asking him what was his state of mind at the relevant date, when his answer carries important financial or other consequences to him, is risking an incorrect answer. The court will obviously weigh his answer within the evidence. Given that domicile is not a concept that naturally springs to a person’s mind the court looks for other forms of evidence that taken together help to establish the man’s state of mind at the relevant date.
Examples of evidence that have been considered are:
- Evidence given to the court by the person in question[55]
- Any purchases of land[56] or failure to purchase freehold land[57]
- The character of properties bought (investment or residential)[58]
- Any sales of land[59] or refusal to sell land[60]
- Expressions of interest in respect of property[61]
- What properties were well maintained and not maintained or minimally maintained[62]
- Where his collection(s) personal possessions, and art were kept[63]
- What wills he made, where they were made, and what was in them[64]
- Where he had his children educated[65]
- Continuing to have children by a wife in his home country[66]
- Contemporaneous letters to friends, relations, and professional advisors in which he states his thinking[67]
- Other writings[68]
- Contemporaneous statements made to friends, colleagues, professionals[69]
- Contemporaneous statements made to officialdom, friends and family[70]
- Where did he call “home”[71]
- Dire predictions as to the future in the current country[72]
- The activity of bank accounts[73]
- Voting or refusal to vote[74]
- Exercising or not exercising postal vote from abroad[75]
- Refusal to stand for public office[76] or holding public office[77]
- Domicile questionnaires[78]
- Where the person’s principal bank lawyer accountant or financial agent is[79]
- Where his assets are[80], particularly when they have been moved
- Length of stay in a country[81]
- Patterns of travel[82]
- Storing goods in a country[83]
- Maintaining a residential property as a base[84]
- What newspapers he reads[85]
- Whether he behaved like an Englishman or an American or Canadian when “abroad”[86]
- Whether he dressed like a native or like his original nationality[87]
- What food he ate from choice[88]
- Whether she was lawfully in a country[89]
- Purchase of a grave for future use[90]
- Which churches or charities he financially assisted[91]
- Declaration made on application for citizenship[92]
- Refusal to apply for citizenship[93]
- Application for citizenship or residence[94]
- Whether entry or remaining in the country is legal or illegal[95]
- Where he was financially active[96]
- A failure to return home as soon as it was safe to do so, but going back two years later, citing ill health.[97]
All of these things taken together may help the court to decide a man’s mind at a date when he was not himself thinking about domicile. See however comments made in Chapter 2 about dishonesty and documents and numerous expressions of concern by judges about confused and dishonest witnesses and enigmatic or lying deceased persons.
“In one sense there is no end to the evidence that may be adduced; for the whole of a man’s life and all that he has said and done, however trivial, may be prayed in aid in determining what his intention was at any given moment of time. The state of a man’s mind may be as much a fact as the state of his digestion, but, as Harman L.J. is reputed to have observed “the doctors know precious little about the one and the judges know nothing about the other”” (Megarry J. in Flynn[98])
(This article is based on part of my LLM Thesis “The Domicile of Illegal Immigrants and Refugees” accepted by Leeds Metropolitan University in 2008)
[1] Mark v. Mark [2005] UKHL 42
[2] Cruh v. Cruh [1945] 2 All ER 545
[3] From “The Elements of Roman Law” by R.W. Lee (1956) p35.
[4] Niccolo Machiavelli “The Prince” translated by George Bull Penguin Books London 1975 p36
[5] Dicey Morris & Collins The Conflict of Laws 14th Edition 2006 p123
[6] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441
[7] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441
[8] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441
[9] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441
[10] IRC v. Duchess of Portland 1982 STC 149
[11] See ”The Arcane World of Domicile and Tax” Nigel Goodeve-Docker
[12] Inscription on the Statue of Liberty:
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!”
[13] IRC v. Bullock [1976] 1 W.L.R. 1178
[14] Buswell v. IRC [1974] 1 WLR 1631
[15] Winans v. AG [1904] A.C. 287 at 291
[16] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441 at 459
[17] In re Flynn; Flynn v. Flynn [1968] 1 W.L.R.103
[18] Megarry J is referring to the judgement of Scarman J in Re Fuld (No 3)[1966] 2 W.L.R. 717
[19] For this and the three subsequent paragraphs I have followed closely, but slightly amended, page 423 of Immigration Law and Practice in the United Kingdom MacDonald and Webber 5th Edition 2001
[20] Lord MacNaughten in Winans v. A-G [1904] AC 287 at 290
[21] Re Steer {1858} 3 H & N 594; A-G v. Yule and Mercantile Bank of India (1931) 145 LT 9
[22] Begum (Rokeya) [1983] Imm AR 163
[23] Buswell v. IRC [1974] 2 All ER 520
[24] Winans v. AG [1904] AC 287
[25] Scappaticci v. A-G [1955] 1 All ER 193
[26] Re Lloyd Evans, National Provincial Bank v. Evans [1947] Ch 695
[27] 1955 Hague Convention Private International Law relating to the settlement of the conflicts between the law of nationality and the law of domicile
[28] 1989 Hague Convention on the law applicable to succession to the estates of deceased persons
[29] Articles 3(2), 3(3), 19(1), 19(4)
[30] Section 45 of the Family Law Act 1986. An example is H v. H (Queen’s Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week
[31] Solomon v. Solomon (1912) 29 WB (NSW) 68, Szechter (orse Karsov) v. Szechter [1971] P 286, May v. May [1943] 2 All ER 146, Cruh v. Cruh [1945] 2 All ER 545, Jablonowski v Jablonowski (1973) 28 DLR (3d) 440, Mark v. Mark [2005] UKHL 42k
[32] Doucet v. Geoghan [1878] 9 Ch D. 441
[33] Morgan v. Cilento [2004] EWHC 188 (Ch), Cyganik v. Agulian [2006] EWCA Civ 129
[34] 1989 Hague Convention on the law applicable to succession to the estates of deceased persons
[35] 26 USC 911 Internal Revenue Code Part III.
[36] Haque v. Haque (1962) 108 C.L.R.
[37] IRC v. Bullock[1975] 1 W.L.R. 1178
[38] SC 3044/00
[39] Morgan & Anor v. Cilento & Others [2004] EWHC 188 (Ch) (09 February 2004)
[40] Agulian & Anr v. Cyganik [2006] EWCA Civ 129
[41] Mark v. Mark [2005] UKHL 42
[42] In re Martin, Loustalan v. Loustalan [1900] P 211
[43] He was a dishonest university lecturer.
[44] Christine de Nichols v. Curlier and Others [1900] AC 21
[45] In re Martin, Loustalan v. Loustalan [1900] P. 211 at 216
[46] Celestine De Nichols v. Curlier and Others [1900] A.C. 21
[47] Code Civil Articles 1393 and 1401
[48] Code Civil Articles 1401-1496 in Title V “ Du contrat de marriage et des droits respectifs des epoux”
[49] Collier v. Rivaz (1841) 2 Curt. 855
[50] Shakespeare Henry IV Part 1 from St Crispin’s Day speech:
“He who shall survive this day, and see old age,
Will yearly on the vigil feast his neighbours,
And say ‘To-morrow is Saint Crispian.’
Then will he strip his sleeve and show his scars,
And say ‘These wounds I had on Crispian’s day.’
Old men forget; yet all shall be forgot,
But he’ll remember, with advantages,
What feats he did that day. Then shall our names,
Familiar in his mouth as household words-
Harry the King, Bedford and Exeter,
Warwick and Talbot, Salisbury and Gloucester-
Be in their flowing cups freshly rememb’red.”
[51] Bell v. Kennedy [1868] { LR} 1 Sc & Div 307 and H. v. H. (Queen’s Proctor Intervening ) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week.
[52] In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1Ch 695
[53] Inland Revenue Commissioners v. Bullock [1976] 1 W.L.R. 1178 at 1182
[54] The Domicile and Matrimonial Proceedings Act 1973 declares the age for domicile independence to be 16.
[55] Bell v. Kennedy [1868] {LR} 1 SC & Div 307, Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, H. v. H. (Queen’s Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week.
[56] Bell v. Kennedy [1868] {LR} 1 SC & Div 307, R. v. Entry Clearance Officer Islamabad ex p. Ali (CO/3585/97)
[57] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, Winans and Another v. Attorney-General [1904] 1 A.C. 287
[58] In re Martin. Loustalan v. Loustalan [1900] P 211
[59] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[60] Morgan & Anr. v. Cilento and Others [2004] EWHC 188 (Ch) (9 February 2004)
[61] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[62] Lord v. Colvin (1859) 4 Drew. 366
[63] Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch)
[64] Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch)
[65] Agulian v. Cyganik [2006] EWCA Civ 129
[66] R. v. Entry Clearance Officer Islamabad, ex p. Ali (CO/3585/97) 20 January 1999, QBD
[67] Bell v. Kennedy [1868] {LR} 1 SC & Div 307, In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1Ch 695
[68] In Re Flynn; Flynn v. Flynn [1968] 1 W.L.R.103, Morgan v. Cilento [2004] EWHC 188 (Ch) Case No HC02 C03074, H. v H. (Queens Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week
[69] Bell v. Kennedy [1868] {LR} 1 SC & Div 307 , In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1 Ch 695, Morgan v. Cilento [2004] EWHC 188 (Ch) Case No HC02 C03074
[70] In Re Fuld, dcd No 3 [1966] 2 W.L.R. 717, Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch), Winans v Attorney General [1904] 1 AC 287
[71] Winans v Attorney General [1904] 1 AC 287
[72] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[73] Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch), R. v. Entry Clearance Officer, Islamabad ex p. Ali(CO/3585/97)
[74] IRC v. Bullock [1976] 1 W.L.R. 1178 , Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch), Winans v Attorney General [1904] 1 AC 287
[75] Suglove v. Oklahoma Tax Commission 1979 OK 168, 605 P.2d 1315
[76] IRC v. Bullock [1976] 1 W.L.R. 1178
[77] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[78] Buswell v. IRC [1974] 2 All ER 520 , but see R. v. Entry Clearance Officer, Islamabad ex p. Ali (CO/3585/97) 20 January 1999, QBD
[79] Robert Moore SC 3044/00
[80] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch), In Re Flynn; Flynn v. Flynn [1968] 1 W.L.R.103
[81] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, IRC v. Bullock [1976] 1 W.L.R. 1178 , Winans v. AG [1904] 1 AC 287 , R. v. Entry Clearance Officer, Islamabad ex p. Ali (CO/3585/97) 20 January 1999, QBD
[82] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, Morgan v. Cilentro, R. v. Entry Clearance Officer, Islamabad ex p. Ali (CO/3585/97) 20 January 1999, QBD
[83] Suglove v. Oklahoma Tax Commission 1979 OK 168, 605 P.2d 1315
[84] Suglove v. Oklahoma Tax Commission 1979 OK 168, 605 P.2d 1315 (Oklahoma Supreme Court)
[85] Robert Moore SC 3044/00
[86] Winans v Attorney General [1904] 1 AC 287, Robert Moore SC 3044/00
[87] Robert Moore SC 3044/00
[88] Robert Moore SC 3044/00
[89] Mark v. Mark [2005] UKHL 42
[90] In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1Ch 695
[91] Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch)
[92] S. Yemen [2003] UKIAT 4 June 2003 unreported, Wahl v. A-G [1932] 147 L.T. 382
[93] IRC v. Bullock [1976] 1 W.L.R. 1178, Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch)
[94] Wahl v. A-G 1932 147 L.T. 382
[95] Mark v. Mark [2005] UKHL 42 (30 June 2005), ex parte Donelly 1915 WLD 29, Solomon v. Solomon (1912) 29 WB (NSW) 68, Puttick v. Attorney General [1980] Fam 1, Szechter (orse Karsov v. Szechter [1971] P 286, May v. May [1943] 2 All ER 146, Cruh v. Cruh [1945] 2 All ER 545, Jablonowski v Jablonowski (1973) 28 DLR (3d) 440
[96] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, Winans v Attorney General [1904] 1 AC 287, Agulian v. Cyganik [2006] EWCA Civ 129
[97] In re Martin, Loustalan v. Loustalan
[98] Re Flynn [1968] 1 W.L.R. 103
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