Domicile of Choice

By Soumya Singh Chauhan, UILS, Chandigarh

Editor’s Note: Domicile of Choice is a self-acquired domicile that a person chooses of his own volition. This paper examines the concept of domicile of choice and the capacity of a person under the English and Indian laws to acquire the same. It deals with the two essential conditions for acquiring a domicile of choice- residence and intention. The paper also analyses cases where the element of intention is missing.” 

Introduction

Any independent person may acquire a domicile of choice. Domicile of choice is a conclusion or inference that the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with an intention to continue to reside there for an unlimited time. There must be a residence freely chosen and not prescribed or dictated by any external necessity such as the duties of office, the demand of creditors or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.

Capacity to acquire domicile of choice

Whether a person has capacity to acquire a domicile of choice is determined by the law of his existing domicile.

English law: Under English law, before the coming into force of the Domicile and Matrimonial Proceedings Act, 1973, a minor, a lunatic and a married woman had no capacity to acquire a domicile of choice.

Indian Law: Under the Indian law a married woman can acquire a domicile of choice under certain circumstances. [i]

Acquisition of a Domicile of Choice

The two requisites for a fresh domicile are residence and intention. It must be proved that the person in question established his residence in a certain country with the intention of remaining there permanently. Such an intention, however unequivocal it may be, does not per se suffice. These two elements of residence and intention must concur, but this is not to say that there must be unity of time in their concurrence. The intention may either precede or succeed the establishment of the residence.

Residence

Residence in a country for the purposes of the law of domicile is physical presence in that country as an inhabitant of it. The requirement of residence is easy to establish. Residence is regarded as being a question of fact and one can be resident in a place where one has no right to be.

Older cases adopted a presumption in favour of domicile that grew in strength with the length of the residence and was hard to rebut. However, more recent cases have attached less weight to the length of residence, and have taken the view that, although a material consideration, it is rarely decisive.

Whatever weight is given to the length of residence it is undeniable that time is not the sole criterion of domicile. Long residence cannot constitute nor does brief residence negative domicile. Everything depends on the attendant circumstances, for they alone disclose the nature of the person’s presence in a country. In short, the residence must answer ‘a qualitative as well as quantitative test.” In the English case Jopp v. Wood[ii], 25 years’ residence in India and in the Indian case S.P. Ghosh v. Deputy Collector[iii] 10 years’ residence in England was not considered enough. In Michael Anthony Rodrigues v. State of Bombay[iv], one Michael born in 1918 in Goa of parents having Goan nationality came to Bombay in 1927 where his father had established a tailoring business for the last forty years. Since then Michael never went back to Goa. He was educated in Bombay and in 1936 joined his father’s business. In 1946, during the war, he joined the Royal Indian Armed Forces. After his discharge from the Army he gave Bombay as his permanent address. Thereafter he lived in Bombay and in 1948 he reverted back to his father’s business. His name was also entered in the municipal rolls as a voter. On these facts, the Bombay High Court held that he had acquired a domicile of choice in Bombay and had abandoned his Goan domicile of origin.

Conversely, brevity of residence is no obstacle to the acquisition of a domicile if the necessary intention exists. For instance if a person leaves the place of his present domicile with a view to settle in another country, then the moment he sets foot in that country he acquires a domicile there. In White v. Tennant[v], after abandoning his home in state P, a man took his family to a home in state R, about a mile from state P. After depositing his belongings there, he returned to State P with a view to spend the night with a relative. He fell ill and died on that very night. It was held that he was domiciled in state R.

Chief or Habitual Residence

It is possible for a person to be resident in several countries at the same time. In such a case of dual or multiple residences a domicile of choice can only be acquired if this can be shown to be the chief residence. This was established in Plummer v. IRC[vi]. The taxpayer had an English domicile of origin. She spent the majority of each year in England, where she was being educated. However, she spent more than three months of each year Guernsey, which had become her family home. Hoffman J held that, despite the taxpayer’s intention of residence in England, her domicile of origin, she could acquire a domicile of choice in Guernsey if she could show that this was her chief residence. This she was unable to do. She had not yet settled in Guernsey. Accordingly she retained her English domicile.

An intention to reside permanently

The acquisition of a domicile of choice requires an intention by the propositus to remain permanently in the territory in which he resides. This is not difficult to understand if the word permanent is used in its correct sense as signifying the opposite of ‘temporary’. According to the Shorter Oxford English Dictionary it means ‘lasting or designed to last indefinitely without change,’ and this indeed is the definition that most of the judges have recognised when required to consider the nature of the intention necessary for a change of domicile. In Udny v.Udny, for instance, Lord Westbury described the intention as being one to reside ‘for an unlimited time.’ A more modern statement to the same effect is that of Baroness Hale who referred to an intention to reside ‘permanently or indefinitely.’ The essence, therefore, of these and many other similar statements is that the intended residence must not be for a limited period, whether the limitation whether the limitation is expressed in terms of time or made dependant on the occurrence of a contingency, such as the accomplishment of a definite task, that will occur if at all during the life of the propositus.

It is also clear that a conditional intention would not suffice. In Cramer v. Cramer[vii], a woman with a French domicile of origin who came to England intending to remain here and marry an Englishman, who was already married, did not acquire an English domicile of choice. Her intention to remain was conditional on both herself and her proposed husband obtaining divorce and on their relationship continuing. It would, no doubt, have been different if she had intended to remain here come what may, but that was not her intention.

Unlikely contingencies

In cases where the termination of residence is dependent on the occurrence of a contingency this will not prevent the acquisition of domicile unless the contingency is itself unambiguous and realistic.

In Re Fuld’s Estate, Scarman J. observed that if a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g. the end of his job, the intention required by law is lacking; but if he has in mind only a vague possibility, such as making a fortune, such a state of mind is consistent with the intention required by law.

Subsequently, a distinction has been drawn between the question whether a contingency itself is clear and the question whether a contingency which is clear will happen. If a contingency is not sufficiently clear to be identified then it cannot operate to prevent the acquisition of a domicile of choice. Thus, in Re Furse[viii], evidence that the propositus, who had a Rhode Island domicile of origin, would leave England, where he had lived for nearly forty years, if he was no longer able to live an active physical life on his farm was not fatal to a change of domicile and it was held that the propositus had acquired an English domicile of choice. On the other hand, if the contingency can be identified, it has to be asked whether there is substantial possibility of the contingency happening; if there is, this will prevent the acquisition of a domicile of choice. Thus, in IRC v. Bullock[ix], where a husband intended to return to Canada to live permanently if his wife predeceased him, it was held that the husband did not acquire an English domicile of choice, since there was a real possibility, in view of their ages, of this happening.

Time at which intention is relevant

The traditional statement that there must be a present intention of permanent residence merely means that so far as the mind of the person at the relevant time was concerned he possessed the requisite intention. The relevant time varies with the nature of the inquiry. It may be past or present. If, for example, the inquiry relates to the domicile of a deceased person, it must be ascertained whether at some period in his life he had formed and retained a fixed and settled intention of residence in a given country. Once this is established, evidence of his subsequent fluctuations of opinion as to whether he would or would not move elsewhere will be ignored.[x] If, on the other hand, the essential validity of a proposed marriage depends on the law of X’s domicile and if the identity of this law is in doubt, what must be examined is his immediate intention.

As observed in Mark v. Mark[xi] , the intention must be bona fide “in the sense of being genuine and not pretended for some other purpose, such as getting a divorce to which one would not be entitled by the law of the true domicile.”

Evidence of intention

The question whether a person has formed requisite intention is one of fact.[xii] It is impossible to lay down any positive rule with respect to the evidence necessary to prove the intention. All that one can say is that every conceivable event and incident in a man’s life is a relevant and an admissible indication of his state of mind. Everything said and done during the whole of a person’s life should be considered, taking account of things said and done after as well as before the time when it is alleged that the chosen domicile has been acquired.[xiii] Nothing must be overlooked that might possibly show the place which he regarded as his permanent home at the relevant time. No fact is too trifling to merit consideration. [xiv]

This view has been taken by Indian courts too. It may be illustrated from the Indian case Kedar Pande v. Narayan Bikram Shah.[xv] The question before the Supreme Court was whether Narayan Bikram Shah had been domiciled in India in 1949. Since his father was domiciled in Nepal, Narayan Shah had his domicile of origin there. Born in Benaras, Narayan Shah received his education from 1934 to 1938 in India. After 1938 he lived in Ram Nagar and continued to live there after the death of his father his father, Ram Raja, had built a palace in Ram Nagar in 1938-41. Subsequently, Narayan Shah also built a mansion there. In 1982 there was a partition suit between Narayan Shah and his brother. During the suit and subsequently also he continued to manage properties. After partition, he and his wife acquired immovable property, including land in Patna and several other places. On March 23, 1949 he was issued an Indian passport in which he described himself as an Indian citizen and domicile and resident of Ram Nagar. He went to Nepal only once when he was 10 or 12 years old. After 1953 he never went to Nepal. He had married an Indian girl. All his children were educated in India. Before the establishment of the Gram Panchayat he was the president of the Union Board. His name was entered into the voter’s list of Ram Nagar constituency. In 1957 general elections he contested from the Ram Nagar constituency. The Supreme Court said that taking into account all the events and circumstances of Narayan Shah’s life, it was clearly established that long before 1949, Narayan Shah had acquired a domicile of choice in India.

Involuntary Residence

Intention to settle down in a country must be free and voluntary. In certain circumstances it may not be so. The Indian Succession Act, 1925, Explanation to S.10 expresses it thus: “A man is not deemed to have taken up his fixed habitation in India merely by reason of his residing there in his Majesty’s civil, military, naval or air force service in the exercise of any profession or calling.” These are cases which cast doubt as to the freeness of the intention.

Refugees

In our contemporary world the phenomenon of people leaving their country to escape persecution, murder, genocide has become common. It cannot be predicted that refugees necessarily retain their former domicile. The motive that induced the flight no doubt militates against the inference that there was an intention of permanent residence in the chosen asylum. In case of large-scale movement of this nature, such as in case of Bangladesh refugees to India, the inference is not of acquisition of new domicile. The position may be different in case of individual refugees. A person at the first instance may go to another country by force of circumstances and not voluntarily, but later on may choose to settle down there as what is dictated in the first instance may afterwards become a matter of choice.[xvi] If that happens, a refugee may acquire the domicile of the country of his refuge. In the Indian case, Mandal v. Mandal[xvii], two Austrian domiciled persons were married in Vienna in 1936. In 1939, on the invasion of Austria by Nazi Germany, they fled to India. Since then they lived in India and had no intention of returning to Austria. A full Bench of the Punjab High Court held that they had acquired a domicile of choice in India.

Fugitives

The fugitives fall under two categories: those who go to another country to escape from the consequences of their crime and those who escape from their civil liabilities. In such cases one must draw the inference that they had left their country for good and therefore a presumption arises in their favour that they had acquired a domicile of choice in the country of their refuge; although their departure is not voluntary, yet it can’t be said that they intended to settle there temporarily. In Re Martin, Loustalan v. Loustalan [xviii], Lindley LJ suggested that the all important factor is whether there is a definite period after which a wrongdoer may return home in safety. In other words, if the crime ceases to be punishable or the sentence enforceable after a given number of years, residence in another country, unless fortified by other facts, does not affect a change of domicile; but if the fugitive remains perpetually liable to proceedings, then the new place of residence becomes the new domicile. It was also observed that if the stay is long, as it was 20 years in this case, it may be taken as established that fugitive intended to make that place his home. All these inferences equally apply to a fugitive who runs away from his civil liability.

Invalids

Invalids who go to another country fall under two categories: those who go for convalescence or for a temporary stay to improve their health and those who go there and settle down as they find the climate more congenial. As observed in Moorhouse v. Lord[xix], it is obvious that the question of acquiring domicile of choice does not arise in the case of the former. In the latter case the natural inference will be that he has acquired a domicile of choice in that country. In Hoskins v. Mathews[xx], a 60 year old English domiciled person had an injury in his spine and he went to Florence solely because he thought the warmer climate of Italy might benefit his health. He lived there throughout the rest of his life. He died there at the age of seventy. The court held that he domiciled in Florence as “in settling there he was exercising a preference, and not acting upon a necessity.”

Public Servants

There are several categories of public servants who are posted by their governments in foreign countries. Among these categories are included ambassadors, consuls, staff in embassies, legations or government news agencies and the like. The natural inference is that they do not acquire domicile of choice in such countries and retain their existing domicile. This has been specifically laid down in S. 12 of the Indian Succession Act, 1925. But if a public servant continues to live in that country after he has been discharged from his job, he may acquire a domicile of choice in that country. In Stone v. Stone[xxi], S, a member of the US Armed Force was stationed in Europe. He used to spend all his holidays in England and wanted to settle there on retirement from his post. The court held that he acquired a domicile of choice in England.

Prisoners

It would appear to be evident that howsoever long the term of imprisonment may be, it will not be enough to confer domicile of choice on the prisoner. He retains his existing domicile. However, a prisoner who has been transported for life does not retain his existing domicile. Thus, in all those cases where people reside in foreign countries not by their own volition but by some force of circumstances, they cannot be said to have acquired a domicile of choice in those countries. Any constraint on the free volition of a person to choose his place of residence would be preclusive of free intention and negative the establishment of a domicile of choice.

Abandonment Of Domicile Of Choice

When both conditions- factum and animus cease to exist, the domicile of choice is abandoned. Just as mere intention to settle or mere residence in another country is not enough to acquire domicile, similarly, mere intention to abandon or mere residence in another country is not enough for abandonment of domicile of choice. Thus the domicile of choice is abandoned when a person gives up residing in the country of the domicile of choice and he has no intention to reside there indefinitely. The case of the Goods of Raffenel [xxii] is a good illustration of the operation of these factors. One Madame Raffenel, widow of a French naval officer, had her domicile of origin in England. She had her domicile of choice in France. She embarked at Calais on a cross- channel streamer, with the intention of leaving France for good. She was taken ill before the streamer could sail and had to spend several months in Calais, where she died. The court held that she died domiciled in France, as at the date of her death she had not abandoned her French domicile, though she had an intention to do so. However, had she sailed off the French territorial waters, her English domicile of origin would have revived.

Edited by Kudrat Agrawal

[i] Exception. To section 16, Indian Succession Act, 1925–The wife’s domicile no longer follows that of her husband if they are separated by the sentence of a competent Court, or if the husband is undergoing a sentence of transportation.

[ii] (1865) 4 De GJ &Sm. 616.

[iii] 1964 All. 422.

[iv] 1956 Bom. 729.

[v] (1888) 31 West Virginia 790.

[vi] [1988] 1 WLR 292.

[vii] [1987] 1 FLR 116.

[viii] [1980] 3 All ER 838.

[ix] [1976] 1 WLR 1178.

[x] Re Marrett, Chalmers v. Wingfield, (1887) 36Ch D 400.

[xi] [2005] UKHL 42 at [47].

[xii] Ibid.

[xiii] Bheekum v. Williams [1992] 2 FLR 228, 237,CA.

[xiv] Drevon v. Drevon (1864) 34 LJ Ch 129 at 133.

[xv] AIR 1966 SC 160.

[xvi] Winas v. AG, (1904) A.C. 287.

[xvii] ILR (1956) Punj. 215.

[xviii] [1900] P 211.

[xix] (1863) 10 HL Cas. 272.

[xx] (1856) 8 De GM & G 13.

[xxi] (1959) 1 All. ER 194.

[xxii] (1863) 3 SW & Tr. 49.

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