CONCEPT OF DOMICILE OF DEPENDENTS
Submitted by:
VINAY SHARMA
R.No. 66, 10th Semester (BA.LLB Hons.)
Faculty Of Law
Jamia Millia Islamia
Under The Guidance Of
Dr. Saadiya ,Assistant Professor
Faculty of law
Jamia Millia Islamia
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CERTIFICATE
The project entitled “ Domicile of Dependents “ submitted to the Faculty of Law, Jamia
Millia Islamia for Conflict of Laws as part of Internal Assessment is based on my original
work carried out under the guidance of Dr. Saadiya, Assistant professor, Faculty of Law .
The Research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.
I understand that I, myself would be held responsible and accountable for plagiarism, if any,
detected later on.
Vinay Sharma
Signature of the Candidate
Date: 30th May 2021
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Table of Contents
S. No. Content Title Page No.
1. Introduction……………………………….3
2. General Rules of Domicile………………. 5
13. Domicile of Dependents…………………. 6
14. Married Women…………………………. 7
15. The Abolition of Dependency in U.K……10
16. Reforms and Conclusion………………… 11
Introduction
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Domicile is the connecting factor traditionally used in common law systems. It has typically
been a tricky concept to define but domicile is generally regarded to be the place where one
has, or is deemed by law to have, his permanent home, thus giving effect to a relationship
between an individual and a single system of territorial law. No person can be without a
domicile, even if they lack a permanent home. Similarly, a person who owns more than one
home cannot have more than one domicile at any given time. An existing domicile is
presumed to continue until a change is proven by the propositus on the balance of
probabilities. There is no uniform concept of domicile and so interpretation of its meaning is
largely left open to the lex fori;1 however, a definition of domicile is given statutory effect in
the Civil Jurisdiction and Judgements Act 1982 and 199 , the Inheritance Tax Act 1984 and
the Brussels I Regulation.2 Habitual residence, on the other hand, is becoming ever more
popular as a connecting factor, both in allocating jurisdiction and applicable law. This is
principally due to the increasing use of habitual residence in modern harmonisation
instruments, particularly in the field of family law but also in the commercial arena. Currently
habitual residence lacks any specific meaning and has been left open for judicial
interpretation. The absence of a definition from any of the legislating instruments it appears
in is intentional in order to move away from ‘technical rules which can produce rigidity and
inconsistencies as between different legal systems’3 such is associated with concepts of
domicile and nationality. Nonetheless, case law does provide some guidance on how it works
in practice. This openness of interpretation means that determination of its meaning may vary
considerably from one territory to another and may even cause friction within the hierarchy
of legal system.4
It has been universally recognized that questions affecting the personal status of a human
being should be governed constantly by one and the same law, irrespective of where the facts
giving rise to the questions may have occurred. But unanimity goes no further. In England it
has been long settled that questions affecting status are determined by the law of the domicile
of the porosities and that, broadly speaking, such questions are those affecting family
relations and family property. To be more precise, the following matters are to a greater
or lesser extent governed by the personal law; the essential validity of a marriage; the effect
1
The law of the country in which an action is brought.
2
(44/2001).
3
All Answers ltd, 'Domicile In Common Law Systems' (Lawteacher.net, April 2019)
<https://www.lawteacher.net/free-law-essays/commercial-law/domicile-in-common-law-systems-
commercial-law-essay.php?vref=1> accessed 8 April 2019.
4
Ibid.
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of marriage on the proprietary rights of husband and wife. Jurisdiction in divorce and nullity
of marriage, though only to a limited degree, legitimacy, legitimating and adoption; wills of
movables and intestate succession to movables. The concept of Domicile in Common Law
and Civil Law are distinct and different from each other to a great extent. In Common Law
domicile means equivalent of a person's permanent residence and in civil law it means
habitual residence. Though the common law variant may seem very simplistic, there are
two variant of the Domicile Theory, they are Domicile of Origin and Domicile of choice.
Domicile of Origin is communicated through operation of law to each person at birth, i.e.,
domicile of the father or the mother, dependent on the legitimacy of the offspring. Domicile
of Choice is that domicile that any person of full age is free to possess instead of the one he
already possesses. The English rule is marred by rules that are very complex and often leads
to uncertainty in its outcome.
According to WW Cook5, the “single conception theory” English law takes the view that any
test that determines place of a person's domicile must remain constant no matter what the
nature of the issue may be before the court.
General Rules of Domicile
There are five general rules that apply to the concept of Domicile which are:
1. No person shall be without domicile. To bring into effect this rule the law assigns to every
person a domicile of origin to every person at birth, namely to a legitimate child. The
domicile of the mother to an illegitimate child and to foundling place where the child is
found.
2. A person can never have two domicile. This is to ensure that several factors and domiciles
don’t hurt his life. Therefore for practical reasons it is necessary that a person shouldn't
possess more than domicile. This is also called the law of the “Law district”.
3. The fact that a domicile might signify a connection with a single system of law, but the
same law might not apply uniformly to all the classes of that people of that particular
domicile.
4. There is always a presumption that a domicile is ever continuing, the burden of proof lies
on the porosities to prove that it has changed. This factor may have a decisive effect on his
case, as the law applied will change drastically.
5
Logical and Legal Bases of Conflict of Laws, Harvard University press, 1942.
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5. Subject to other statutory exceptions the concept of domicile shall always be
decided according to the English concept notwithstanding any other foreign concept of law..
Domicile of Dependents
Minors, married women and mentally disordered persons, such as idiots and lunatics, fall in
the category of dependents. In respect of domicile the word “Dependent” is applied to a
person in general who is incapable of having a domicile of his choice. The general rule is that
a dependant person has the domicile of the person he is dependent on. The domicile
dependency, as it sometimes is called, is an imposed domicile and it changes only when the
person on whom the dependent is dependent changes his domicile. A dependent person can’t
abandon his dependency. Thus, a wife who lives separately from her husband, a minor who
ran away from his parents and a lunatic who live s in another country cannot claim a domicile
of their own. It is only in one case that a dependent can get a new domicile. This happens
when a female minor marries. But then what she acquires is the domicile of her husband.
Where the person on whom they are dependent on dies or if they have no one to depend on,
then the dependent’s domicile cannot change at all. These statements of law in respect of
English law have to be read subject to certain qualifications, since the Domicile and
Matrimonial Proceedings Act, 1973 had made some changes relating to married women and
minor children. Under English private international law, the capacity to acquire new domicile
is governed by English law and not by the law of the previous domicile or by law of the
intended new domicile.6 There are basically three classes of dependents, viz., minors, married
women and mentally disordered persons.
Married Women
In Gray V. Formosa7 a rule was underlined that, domicile of a married woman is, during
covertures, the same as, and changes with the domicile of her husband‟, this was the basic
common the person of husband and wife. According to Blackstone, “By marriage, the
husband and wife are one person in law, i.e., the very being and legal existence of woman is
suspended during the marriage, or at least is incorporated and consolidated into that of
husband, under whose wing of protection and cover she performs everything… Upon this
principle of union of person in husband and wife, depends almost all the legal rights, duties
and disabilities that either of them acquires by the marriage.” This rule is also expressed
6
Re Beaumont, (1893) 3 Ch 490
7
(1963), P. 259
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by saying that the husband’s actual and the wife’s legal domicile are one, wherever the wife
maybe residing. By a valid marriage, the domicile of the wife becomes that of the husband,
and the fact that married couple is living apart under separate agreement, or a husband has
deserted the wife, does not render her free to choose a domicile apart from his. In Lord
Advocate V. Jaffery,8 one Mrs. Mackinson was married on June 26, 1876 to one Robert
Mackinson who was born in Campbell town, Aberdeen and at the time of marriage was a
Chief Quartermaster in the Navy. On retiring from the Navy in 1886 till 1893, he lived with
his wife in Aberdeen. In 1893, owing to his drunken and dissipated habits, it was arranged; at
the instance of his wife that Mackinson should leave Scotland for Australia and his passage
out was paid by Mrs. Mackinson’s mother. He reached Sydney and for some time
remained in New South Wales. Sometimes before, June 1902, he went to Queensland
and resided in Brisbane where he died on January 1, 1918. On June 2, 1902, he went through
a form of bigamous marriage with one Willhemina, with whom he lived until his
death, and from whom he had two children. After his departure from Scotland
no communication passed between him and his wife. In 1915, Mrs.
Mackinson, who continued to live in Aberdeen, filed a petition for
divorce on the ground of her husband’s desertion and adultery.
Two main questions before the court were:
a) Whether at the date of Mrs. Mackinson’s petition, Robert Mackinson had acquired a
domicile in Queensland,
b) If so, whether Mrs. Mackinson had acquired a derivative domicile in Queensland by virtue
of the marriage then subsisting between them. The trial court was of the opinion that Robert
Mackinson acquired a domicile in Queensland, but that, in the special circumstances of the
case, wife’s domicile remained Scottish; on the latter point the first appellate court reversed
the judgment. The House of Lords affirmed the judgment of the first appellate court. Lord
Dunedin, pronouncing the opinion of House of Lords, quoted the following passage from
the opinion of Sir Cresswell in Yelverton V. Yelverton9
“The domicile of the husband is the domicile of the wife; and even supposing him to have
been guilty of such misconduct as would furnish her with a defense to a suit by him for
restitution of conjugal rights, she could not on that ground acquire another domicile
for herself.” If the marriage is void, the wife does not acquire the domicile of her husband10.
8
(1921) 1 A.C. 146
9
(1859) 1 S.W. & Tr. 574.
10
White V. White, (1937), P. 111; Mehta V Mehta, (1945) 2 All. E.R. 690; De Reneville v De Reneville, (1948),
P.100 (C.A)
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But if she goes to another country and lives with a putative husband, she may acquire a
domicile of choice there. But if the marriage is void on the ground that she was already a wife
of someone, she cannot acquire a new domicile. Then her domicile will remain that of her
lawful husband.11
The rule that the wife’s domicile is tagged with that of her husband has been severely
criticized. It is evident that in our contemporary world this is socially most undesirable.
Attempts to round of its sharpest corners have been statutory. The Domicile and
Matrimonial Proceedings Act, 1973 has now repealed the old provisions, and a wife is now
allowed her own separate domicile. New jurisdictional rules have been laid down. Thus the
English law had gone much ahead of the suggestion of the Private International Law
Committee that a wife was living separately under a decree of judicial separation should be
allowed to acquire an independent domicile. The Domicile and Matrimonial Proceedings Act,
1973 makes fundamental changes in the domicile of the wife. The rule of unity of domicile of
husband and wife stands abolished. The act lays down that the wife does not acquire the
domicile of her husband merely by virtue of her marriage. Now her domicile is to be
ascertained the same way as the domicile of an independent person is ascertained. Section
1(1) lays down: “… the domicile of a
married woman as at any time after the coming into force of the section shall, instead of
being same as her husband’s by virtue of only if marriage, be ascertained by reference to the
same factors as in the case of any other individual capable of having an independent
domicile.” The Act came into force on Jan 1 1974. A woman already married on Jan 1, 1974,
retains her husband’s domicile of dependency (but she retains it, not as a dependent’s
domicile but as of choice or origin), till she acquires another domicile. Sub section (2)
provides, “Where immediately before this section came into force, a woman was married and
then had her husband’s domicile by dependence, she is to be treated as retaining the domicile
in (as a domicile of choice, if it is not also her domicile of origin.) Unless and until it is
changed by acquisition or revival of another domicile either on or after the coming into force
of this section.”12
In the U.S.A, the rule of unity of domicile of husband and wife is not taken to the logical end
to which it was taken in English law. There, a wife living separate from her husband,
11
Von Lorang V. Adm. Of Austrian Property, (1927) A.C. 641
12
IRC V. Duchess of Portland, (1982) 2 W.L.R. 367
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separation not amounting to desertion, can acquire her own independent domicile; separation
maybe by agreement or by a decree of court.13
In Indian statutory law also does not follow English law. The Indian Succession Act 1925,
Section 15 and Section 16 incorporate the general rule: on marriage the wife acquires the
domicile of her husband and during covertures her domicile is the domicile of her husband.
Then it is laid down that wife can acquire her own domicile in the following cases:
1. If the wife lives separate under a decree of the court.
2. If the husband is undergoing a life sentence.14
Indian courts have been called upon to dwell in the matter in the several different situations
like in the case of Prem Pratap V. Jagat Pratap 15.Here it was held that the wife’s domicile
remains that of the husband even if he deserts her. Then was the case of Rani
Saeeda Khautan V. State of Bihar16 in the wake of partition. The wife of one Capt. Kumar
Singh domiciled in India, left with her mother to Pakistan. On 14 th May 1950 she visited
India on a permit issued by the Indian Commission in Pakistan. On 23 rd July 1950 she was
served with a notice of the Government of India to quit India. In a petition for a writ
of mandamus it was argued on behalf of the wife that she, being the wife of Indian domiciled
person, was domiciled in India and thus, cannot be asked to quit India, since by going to
another country or by any other act of her she could not, during her marriage’s subsistence
acquire any domicile of her own. Her plea was accepted by the Patna High court.
Substantially the Allahabad High court also accepted the plea of the wife. Justice Mallick,
referring to Section 16, Indian Succession Act, 1925said that during the subsistence of
covertures in the domicile of the wife is the domicile of her husband.17
It is quite unfortunate to observe that the courts in India tend to blindly follow their English
counter-parts, it is like the persuasive decisions are getting more importance. Even though
English precedents are being quietly followed, American decisions aren’t given much
importance. Our courts should have at least extended
the principle of separate domicile to those cases where husband and wife are living separate, or the
husband has deserted the wife.
13
William V. Osenton, 232 U.S. 619.
14
R. Dolphin V. Robins, (1859) 7 H.L.C. 390
15
1944 All 97
16
951 Pat 454
17
Smt. Allabandi V. Union of India, 1954 All. 45
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The Abolition of Dependency in U.K
Until 1974 the rule was that the domicile of a husband was communicated to his wife
immediately on marriage and it was necessarily and inevitably retained by her for the
duration of marriage. This rule was much criticized as the last barbarous relic of a wife’s
servitude and was abolished under Section 1 of the Domicile and
Matrimonial Proceedings Act 1973. The domicile of a married woman at any time on or
after 1 January 1974 shall instead of being the same as her husband’s by virtue only of
marriage, be ascertained by reference to the same factors as in the case of any other
individual capable of having an independent domicile. This means that a married woman is to
be treated as capable of acquiring a separate domicile; though in vast majority of cases she
and her husband will, independently acquire the same domicile. It is, however quite possible
for happily married spouses to have separate domiciles as where, for example, a student at an
English university who is domiciled in New York marries a fellow student domiciled in
England, both intending at the end of their studies to go and live in New York. The 1973 act
also deals with transitional problems of the domicile of dependence of a wife acquired before
1974. A woman married before 1974 who therefore acquired her husband’s domicile on
marriage is to be treated as retaining that domicile as a domicile of choice if it was not the
wife’s own domicile of origin, until its changed by acquisition of a new domicile of choice or
revival of the domicile of origin on or after 1st January 1974. This meant that after that date,
the wife’s domicile is not to be treated as dependent on her husband but as her own domicile
of origin, or of choice until she acquires a new domicile of choice or until her domicile of
origin revives.
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Reforms and Conclusion
Attempts in the 1950s and 1960s at the wholesale reform of the law of domicile were
unsuccessful because they were thought to be too radical. More recently, the English and
Scottish Law Commissions put forward in a join Report a set of proposals for reform of the
major rules which, at least as regards the ease of change of domicile were more conservative.
The Law Commission started off on the basis that it should be a little easier to acquire a new
domicile. To achieve this, it was proposed that the standard of proof in all acquisition cases
should be the normal civil standard, and that it should be sufficient to show that a person
intended to settle in the country in question for an indefinite period. When it comes to
domicile issues other than that of ease of change of domicile, a bolder line was taken which
would have led to major improvements in the law. The domiciles of origin, choice and
dependency would have been abolished, to be replaced by a domicile for children and a
domicile for adults. This would have greatly simplified the law. No special tenacity would
have been given to the domicile received at birth and the doctrine of revival would have been
replaced by a rule that an adult’s domicile would continue until another domicile was
obtained. All in law, the Law Commissions’ proposals represented “a further important step
in the process of improving the structure, effectiveness and fairness of the rules of domicile”,
and were supported by the judges of the Family Division. In Scotland, the law in relation to
the domicile of persons under 16 has been reformed. Influenced, at least in part, by the Law
Commissions’ proposals, Scots law provides that were the parents are domiciled in the same
country and the child has a home with a parent or with both of them, the child is domiciled in
the same country as its parents.
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