Domicile (law)
From Wikipedia, the free encyclopedia
In
law, domicile is the status or attribution of being a permanent resident
in a particular jurisdiction. A person can remain domiciled in
a jurisdiction even after they have left it, if they have maintained sufficient
links with that jurisdiction or have not displayed an intention to leave permanently
(i.e., if that person has moved to a different state, but has not yet formed an
intention to remain there indefinitely). A corporation’s place of domicile is
equivalent to its place of incorporation.
Traditionally
many common law
jurisdictions considered a person's domicile to be a determinative factor in
the conflict of laws and would, for example, only
recognize a divorce conducted in another jurisdiction if at
least one of the parties were domiciled there at the time it was conducted.
Outline of the concept
In
early societies, there was little mobility but, as travel from one state to another developed, problems emerged:
what should happen if different forms of marriage exist, if children become adult at
different ages, etc.? One answer is that people must be given a connection to a
legal jurisdiction, like a passport, that they carry with them wherever they
go. Hence, if according to the laws of their domicile a person has the right to
marry multiple spouses, the marriages should not alternate between valid and invalid
every time they cross a state boundary where the laws are different. If someone
is an infant
and therefore has reduced contractual capacity, that will tend to apply wherever
they go. Furthermore, when a person dies, it is the law of their domicile that
determines how their will is interpreted, or if the person has no
valid will, how their property will pass by intestate succession.
Domicile
should be distinguished from nationality which is the relationship between
an individual and a country. Where the state and the country are co-extensive, the
two may be the same. However, where the country is federated into separate legal
systems, nationality and domicile will be different. For example, one might
have American nationality and a domicile in Texas,
or British nationality and a domicile in Scotland. Further, one can have
dual nationality but not more than one domicile at a time. A person may have a
domicile in one state while maintaining nationality
in another country. Unlike nationality, no person can be without a domicile
even if stateless.
Domicile
is distinct from habitual residence where there is much less
focus on future intent. Domicile is being supplanted by habitual residence in international conventions
dealing with Conflict and other private law matters.
“Domicile”
has a somewhat technical legal meaning in common law jurisdictions and should
not be confused with: (1) “Domicile” in civil law jurisdictions. (2) “Domicile”
in EU regulations and international treaties (where a definition often
overrides the common law sense of domicile). (3) “Domicile” in ordinary English
usage.
The
rules determining domicile in common law jurisdictions are based on case law in
origin. Most jurisdictions have altered some aspects of the common law rules by
statute, the details of which vary from one jurisdiction to another. The
general framework of the common law rules has however survived in most
jurisdictions and is in outline as follows:
Domicile of origin
Dicey states the common law rule thus:
Every person receives at birth a domicile of
origin:
(a) A legitimate child born during the lifetime of
his father has his domicile of origin in the country in which his father was
domiciled at the time of his birth;
(b) A legitimate child not born during the
lifetime of his father, or an illegitimate child, has his domicile of origin in
the country in which his mother was domiciled at the time of his birth;
(c) A foundling has his domicile of origin in the
country in which he was found.
(2) A domicile of origin may be changed as a
result of adoption, but not otherwise.[1]
In
some jurisdictions the status of illegitimacy has been abolished, and slightly
different rules apply where parents have differing domiciles.
Domicile of choice
Dicey states the common law rule thus:
Every independent person can acquire a domicile of
choice by the nation of residence and intention of permanent or indefinite
residence, but not otherwise.[2]
A person abandons a domicile of choice in a
country by ceasing to reside there and by ceasing to intend to reside there
permanently or indefinitely ( not based on the immigration status,but based on
the social & moral status ), and not otherwise.
When a domicile of choice is abandoned, either
(i) a new domicile of choice is acquired; or
(ii) the domicile of origin revives.[3]
The
rule that the domicile of origin revives on abandonment of a domicile of choice
has been altered in some jurisdictions.
Domicile of dependency
Dicey states the common law rule thus:
The domicile of a dependent person is, in general,
the same as, and changes (if at all) with, the domicile of the person on whom
he is, as regards his domicile, legally dependent.[4]
In
particular, during minority, a child's domicile of dependency changes to match
that of the adult on whom the child is said to be dependent.
The law in specific jurisdictions
United States
Each state
of the United States is considered a separate
sovereign within the U.S.
federal system, and each therefore has its own laws on questions of marriage,
inheritance, and liability for tort and contract actions. Persons who reside in
the U.S.
must have a state domicile for various purposes. For example, a person can
always be sued in their state of domicile. Furthermore, in order for individual
parties (that is, natural persons) to invoke the diversity jurisdiction of a United States district court (a federal
trial court), all the plaintiffs must have a different state of domicile from all
the defendants
(so-called "complete diversity").[5]
United Kingdom
The
rules are in short as set out above. The Domicile and
Matrimonial Proceedings Act 1973 abolished the rule that a married
woman had the domicile of her husband (with transitional rules for those
married before 1 January 1974). The rules dealing with the domicile of minors
differ slightly between England
and Wales (governed by the
Domicile and Matrimonial Proceedings Act 1973) and Scotland
(governed by Section 22 Family Law (Scotland) Act 2006). [6]
Austrian and Germany
Hauptwohnsitz
is the name of the concept of main domicile in Austrian and German law.
People's Republic of China
A
domiciled individual is defined as one who, by reason of the individual’s
permanent registered address, family, and/or economic interests, habitually
resides in China.
A PRC national with a Chinese passport or a Domicile registration is
likely to be deemed as domiciled in China - whether resident in China or not -
and therefore attract liability for individual income tax on worldwide income.[7]
References
6.
^ Taxation
of Non-Residents and Foreign Domiciliaries 10th ed 2011, James Kessler
QC (for UK law).
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