| Conflict of laws |
|---|
| Preliminiaries |
| Characterisation Incidental question Renvoi · Choice of law Public policy Hague Conference |
| Definitional elements |
| Jurisdiction Procedure Forum non conveniens Lex causae Lex fori · Forum shopping Lis alibi pendens |
| Connecting factors |
| Domicile · Lex domicilii Habitual residence Nationality · Lex patriae Lex loci arbitri · Lex situs Lex loci contractus Lex loci delicti commissi Lex loci actus Lex loci solutionis Proper law Lex loci celebrationis Choice of law clause Dépeçage Forum selection clause |
| Substantive legal areas |
| Status · Capacity · Contract Tort · Marriage · Nullity Divorce (Get · Talaq) Property · Succession Trusts |
| Enforcement |
|
Mareva injunctions Anti-suit injunctions |
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.
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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:
Dicey states the common law rule thus:
In some jurisdictions the status of illegitimacy has been abolished, and slightly different rules apply where parents have differing domiciles.
Dicey states the common law rule thus:
The rule that the domicile of origin revives on abandonment of a domicile of choice has been altered in some jurisdictions.
Dicey states the common law rule thus:
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.
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, an individual 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]
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]
A person can be domiciled in England and Wales, Scotland, Northern Ireland, and Cornwall.[7]
Hauptwohnsitz is the name of the concept of main domicile in Austrian and German law.