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by J.A. Wade *

1. Introduction
2. The statutory changes
A. Jurisdiction
B. Choice of Law
3. The permanent home approach
A. Factum of residence
B. The influence and scope of the animus
4. The reasoning of the Law Commission
5. Conclusions


The formal starting-point for this article is the Domicile and Matrimonial
Proceedings Act 1973 which came into force on 1 January 1974 and which
makes significant changes in the law relating to jurisdiction in matrimonial
proceedings and the law relating to domiciles of dependency. The true starting-
point was with the various Reports and Working Papers of the Law Commission
for England and Wales which preceded the statute and prepared the way for
the introduction of the changes.
For a long time domicile has been presented as founded upon or representing
the notion of 'permanent home' and this approach, in the context of jurisdic-
tion, was indorsed and advanced by the Law Commission. The purpose of this
article is to rebut that argument and to show that domicile, developed judicially
into a strict form and now indorsed by the legislature in that form without
change or amelioration of its essentials, operates as a choice of law device in
the guise of a jurisdiction connecting factor. This guise is not immediately ap-
parent for the picture is confused by the many judicial pronouncements des-
cribing domicile in terms of 'permanent home', the necessity to establish the
factum of residence before a domicile of choice can be aquired, the existence

* Research Officer in the Private International Law Department, T.M.C. Asser Institute, The

of a distinct and separate concept of residence which operates purely as a juris-
diction connecting factor and which has no pretensions to be a choice of law
factor, and the judicial pronouncements that this latter residence is constituted
by the establishment of a 'home'. The employment in the same statute of
domicile equally with habitual residence as bases of jurisdiction intensifies the
The element of device becomes apparent against the backcloth of three
*principles' - that status is governed by domicile; that there is a strong inclina-
tion against finding for a change of domicile, particularly where the alleged
change is from a domicile of origin to a domicile of choice, which is manifested
by the rules relating to the onus of proof and by the evidence of the cases; and
that where the English court has jurisdiction the English law governs.
A subsidiary theme will become apparent during the course of the following
pages which serves to strengthen the principal theme being advanced — that
where there exists an identity of terms employed to connote different concepts
there arises a confusion between those concepts and a tendency towards an
assimilation of meanings with a consequent failure to distinguish clearly between
differences of function.


In order to place the changes effected by the Domicile and Matrimonial Pro-
ceedings Act 1973 in their context it is necessary briefly to outline the previous

A. Jurisdiction
The Matrimonial Causes Act 1857 transferred jurisdiction in matrimonial pro-
ceedings from the ecclesiastical courts to the secular courts. The former had
based jurisdiction upon residence and the Act laid down that the newly created
Court for Divorce and Matrimonial Causes (s. 6) was to give relief in conformity
with the principles and rules formerly employed (s. 22). However, the Act had
created the power to grant dissolution of marriage but had remained silent as
to the basis of jurisdiction for the exercise of the new power. In Niboyet v.
Niboyet l the Court of Appeal held that there was jurisdiction on the basis of
residence but in 1895 the Judicial Committee of the Privy Council, in Le Mesu-
rier v. Le Mesurier, disapproved of this and advised that,

" . . . according to international law, the domicile for the time being of the married
pair affords the only true test of jurisdiction to dissolve their marriage".2

1.(1878) 4 P.D. 1.
2. [1895] A.C. 517, 540. Adopted, American Law Institute, Restatement of the Conflict of
Laws, (1934), s. I l l , hereafter referred to as Restatement, 1934. See, also, Williams v. North
Carolina (1945) 325 U.S. 226, 229, "judicial power to grant a divorce . . . is founded on domicile".
3. Warrender v. Warrender (1835) 2 Cl. & F. 488.

Over a relatively short space of time the courts strengthened the former rule of
unity of residence of the spouses 3 so that it became, the domicile of a married
woman is the same as and changes with the domicile of her husband 4 , and that
this was so irrespective of the fact that they were living apart even where the
husband had committed a matrimonial offence which would have enabled the
wife to have obtained a decree of divorce or of judicial separation 5 , or where
the wife had obtained a decree of judicial separation 6 or even a divorce if in
the latter case the court had lacked jurisdiction according to English notions.7

" . . . nothing short of a full juridical domicile within its jurisdiction can justify a
British Court in pronouncing a decree of divorce . . . There can be only one real
domicile .. . There is no authority for the proposition that husband and wife can
have, while they continue married, distinct domicile . . . If it were otherwise pro-
ceedings for dissolving the status of marriage might be carried through in two
jurisdictions, possibly with different results 8 . . . while the marriage tie continues
[therefore] in the great fundamental issue of status . . . the domicile of the wife is
the domicile of her husband . . ."'

The first major exception to this rule was made by the Matrimonial Causes
Act 1937, s. 13 providing that where a wife had been deserted by her husband,
or where the husband had been deported from the United Kingdom, and the
husband was immediately before the desertion or deportation domiciled in
England and Wales, the court had jurisdiction notwithstanding that the husband
was no longer domiciled in England.10 There had been, and were to be, other
statutory relaxations of the strict rule but each was of only limited scope and
dealt with special war-time or post-war situations or with particular Common-
wealth problems. Of these enactments it was said that,

"the express statutory exceptions only serve to emphasise, that the principle is
firmly embedded in English law that jurisdiction to entertain . . . proceedings is
founded on domicile".
However, times were changing rapidly. Thus, the movement of large numbers
of refugees and immigrants before, during and after the 1939-45 war served to
emphasise that the world had become more shifting and mobile than in the
preceding century and the feeling grew that, whether on the grounds of morals,
humanity or convenience, the wife who was living apart from her husband
should be able to obtain a divorce in the country where she lived. The result

4. In the U.S. it was early decided that an innocent spouse could have a separate jurisdictional
domicile: Haddock v. Haddock (1906) 201 U.S. 562. The Supreme Court later disapproved of
drawing such a distinction and allowed separate domiciles per se: Williams v. North Carolina
(1945) 325 U.S. 226.
5. Lord Advocate v.Jaffrey [1921] 1 A.C. 147.
i.Att.Gen. for Alberta v. Cook [1926] A.C. 444.
7. Garthwaitev. Garthwaite [19641 P. 356.
8. Lord Advocate v. Jaffrey [1921J1 A.C. 147, 152 per Lord Haldane.
9. Ibid., p. 168 per Lord Shaw.
10. Re-enacted as s. 18 (1) (a), s. 40 (1) (a), s. 46 (1) (a), Matrimonial Causes Acts 1950, 1965,
1973 respectively; repealed, Domicile and Matrimonial Proceedings Act 1973, Schedule 6.
11. Indyka v. Indyka [1967] 2 A.E.R. 689, 728-29 per Lord Pearson.

was s. 1 (1) (a) Law Reform (Miscellaneous Provisions) Act 1949 1 2 which
provided that if the wife was resident in England and Wales and had been
ordinarily resident there for a period of three years immediately preceding the
commencement of the proceedings, and the husband was not domiciled in
Scotland, Nothern Ireland, the Channel Islands or the Isle of Man, the court
had jurisdiction.
These legislative changes of 1937 and 1949 provided for a nexus existing
between a wife petitioner and the jurisdiction which fell short of being an in-
dependent domicile. The nexus that was relevant was either, first (and there
were two conditions to be satisfied), that the wife should have been deserted
(the provision as to deportation being of no practical significance) at a time
when her domicile, i.e., that of her husband, was English, or, secondly, that
the wife should have been ordinarily resident in England for three years. These
changes were certainly far-reaching, sufficiently so for it to be said that domicile
thereafter no longer occupied its role of being essential and even, that "In
respect of one sex [viz. the wife] the rule, so far as it concerns jurisdiction,
has now, virtually, ceased to exist". 13 This was patently inaccurate. The fact
that wives of foreign domicih'aries could obtain decrees after three years'
ordinary residence merely exemplified the rule that they could not petition on
the ground of their own independent domicile, (for they were incapable of
possessing such a domicile), and, further, this obligation to wait for what was
a substantial period of time could be a matter of distinct injustice. This was so
where the wife otherwise satisfied the requirements of animus and de facto
residence necessary to establish an independent domicile of choice in England
but, because of the above rule preventing her from acquiring such a domicile,
had to wait for a further period. Such a situation was clearly unjustifiable on
jurisdictional grounds alone for the quality of the connection was otherwise
In view of the practice long established in the United States 1 s, and more
recently in Australia, Canada, and New Zealand 1 6 , and considering the view
embodied in the Hague Convention on Recognition of Divorces and Legal Separa-
tions 1968 1 7 and the principle of sexual equality contained in the Universal
Declaration of Human Rights, Article 16 (1) 1 8 , it is not surprising that the
Law Commission observed that England was "in danger of becoming the last
country to cling to an obviously anachronistic and unjust rule" 1 9 , and strongly

12. Re-enacted as s. 18 (1) (b), s. 40 (1) (b), s. 46 (1) (b) Matrimonial Causes Acts 1950, 1965,
1973 respectively; repealed, Domicile and Matrimonial Proceedings Act 1973, Schedule 6.
13. Indyka v. Indyka [1967] 2 A.E.R. 689, 707-8 per Lord Morris.
14. See, e.g., Kern v. Kern [1972] 1 W.L.R. 1224, discussed Wade (1973) 36 Mod. L.R. 206.
15. See, supra, n. 4.
16. See, s. 24 Matrimonial Causes Act 1959; s. 6 (1) Divorce Act 1968; s. 3 Matrimonial Pro-
ceedings Act 1963, respectively.
17. Article 3 whereby the meaning of habitual residence as employed in Article 2 includes
domicile as that term is used in the State of origin but does not include the domicile of depen-
dency of a wife.
18. G.A. Res. 217 (HI), adopted Paris, 10 December 1948, GAOR, 3rd. Sess. Part I.
19. Law Commission Published Working Paper No. 28, Family Law: Jurisdiction in Matrimonial

recommended the granting of a separate domicile. The Domicile and Matrimonial
Proceedings Act 1973 provides that, as from 1 January 1974, the domicile of
a married woman is to be ascertained separately from her husband's for all
purposes. The Act also makes it clear that the established principles for the
ascertainment of domicile remain unchanged. Section 1 reads -
(1) Subject to subsection (2) below, the domicile of a married woman as at any
time after the coming into force of this section 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 indepen-
dent domicile.
(2) 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 re-
taining that domicile (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.
The Act went further than the Law Commission recommendation which was
restricted to allowing a wife to have a domicile separate from her husband's
for purposes of matrimonial jurisdiction. As to the general question of when
should the court take jurisdiction the Law Commission recommended that there
should be only two bases of jurisdiction, viz., if either party is domiciled in
England at the commencement of the proceedings or has been habitually resident
in England for the preceding one year.20 This was enacted by the Domicile and
Matrimonial Proceedings Act 1973, s. 5 of which reads —

(2) The court shall have jurisdiction to entertain proceedings for divorce or
judicial separation if (and only if) either of the parties to the marriage —
(a) is domiciled in England and Wales on the date when the proceedings are begun;
(b) was habitually resident in England and Wales throughout the period of one
year ending with that date.

A similar provision exists for nullity of marriage and for proceedings for presump-
tion of death and dissolution of marriage (subsections 3 and 4 respectively).
There are a number of important points to note. First, these two jurisdiction
bases are exclusive, which means that all previously existing bases are abolished,
Le., the 1937 and 1940 provisions as subsequently re-enacted 21, the residence
of both parties 22 or of the respondent alone 2 3 , and, in the case of marriage

Causes (other than Nullity), 1970, para. 40; hereafter referred to as Law Comm. W.P. No. 28.
For previous attempts to reform the law see Private International Law Committee, First Report,
1954, Cmnd. 9068, paras. 7 (1), 18; Report of the Royal Commission on Marriage and Divorce,
1956, Cmnd. 9678, para. 837, recommending jurisdiction based on residence. For the fate of
Lord Meston's Bills of 1958 and 1959 see, House of Lords, Official Report, Vols. 211, cols.
206-9; 213, col. 709; 214, cols. 327-57, and, Bland (1958) 7 Int. & Comp. L.Q. 753, Mann
(1959) 8 Int. & Comp. L.Q. 457.
20. Law Commission Report No. 48, Family Law: Jurisdiction in Matrimonial Causes, 1972,
para. 46; hereafter referred to as, Law Comm. Rep. No. 48.
21. See, supra, n. 10 and n. 12.
22. Ramsay-Fairfax v. Ramsay-Fairfax [19561P. 115; Szechterv. Szechter [1971] 2 W.L.R. 170.
23. Garthwaite v. Garthwaite [1964] p. 356.

alleged to be void, that the marriage was celebrated in England.24 Secondly,
domicile means domicile according to English law, i.e., in its strict form. Thirdly,
as to the time factor, jurisdiction will not be lost if the parties acquire a foreign
domicile (s) after presentation of the petition but before judgment.25 By analogy,
it would seem that the same must hold true for a subsequent change, or loss,
of habitual residence. Fourthly, but merely for the sake of completeness, as to
habitual residence this term has been employed in six U.K. statutes 2 6 but
without a meaning having been ascribed and as yet there exists no authoritative
judicial statement as to its meaning.

B. Choice of Law
Two 'principles' that have been established are that connecting factors are
to be determined according to English law and that, with the exception of
nullity, although even here there is a clearly discernible tendency to follow the
'principle', where jurisdiction is founded the issues arising are governed by
English law.
Of the connecting factors the most important in questions of status has been
domicile. The question where a person is domiciled is determined according to
English law 2 7 , subject to a solitary exception provided by s. 3 (2) Recognition
of Divorces and Legal Separations Act 1971 whereby jurisdiction taken on the
basis of domicile as that term is understood in the country of origin is sufficient
for recognition by the English court.
The Matrimonial Causes Act 1965, s. 40 (2) provided that where the court
had jurisdiction, "the issues shall be determined in accordance with the law
which would be applicable thereto if both parties were domiciled in England
at the time of the proceedings". When considering the extension of the bases
of jurisdiction in matrimonial proceedings the Law Commission deemed it
necessary to examine the question whether English courts should continue to
apply English domestic law in the proceedings despite the fact that the marriage
was a foreign one and that the personal laws of the parties, or of one of them,
was foreign.28 The conclusion was that no change was required in the rule
whereby English law is applied in all proceedings, excepting nullity where ques-
tions of formal and essential validity remain subject to the lex loci celebrationis
and to the ante-nuptial domicile of the parties respectively.2 9 However, it was

24. Simonin v. Mallac (1860) 2 Sw. & Tr. 67;Ross-Smith v. Ross-Smith [1963]A.C. 280.
25. Leon v. Leon [I967]p. 275; Cheshire & North, Private International Law, 8th ed., (1970),
p. 347.
26. Viz. Administration of Justice Act 1956, s. 4; Wills Act 1963, s. 1; Adoption Act 1968, s. 11;
Recognition of Divorces and Legal Separations Act 1971, s. 3; Domicile and Matrimonial Pro-
ceedings Act 1973, ss. 5, 6, 16; Supply of Goods (Implied Terms) Act 1973, s. 7.
27. See, Dicey & Morris, Conflict of Laws, 9th ed., (1973), p. 91.
28. See, generally, Law Comm. W.P. No. 28, paras. 81-84; Law Comm. Rep. No. 48; paras.
29. See, now, Radwan v. Radwan (No. 2) [1972] 3 W.L.R. 939, holding that capacity to contract
a polygamous marriage is governed by the intended matrimonial residence: discussed, Wade
(1973) 22 Int. & Comp. L.Q. 571.

recommended that sections 14(5) and 40(2) Matrimonial Causes Act 1965 3 0
should be repealed and not replaced 3 I on the grounds that such a provision is
unnecessary for it has no application to proceedings for nullity of a void marriage,
the Divorce Reform Act 1969 leaves no scope for the application of anything
but English law to divorce or judicial separation, its application to other pro-
ceedings is obscure 3 2 , and such case law as does exist on .the point supports
the proposal that English domestic law alone should apply. 33 Speaking of such
an approach a learned author had earlier observed, "In the Judicial search for
the legal system applicable, there is a distinct 'homeward trend', a tendency to
arrive, if possible, at the application of domestic law". 34 He considered, how-
ever, that the nationalist policy inherent in "homeward trendism" was explicable
by the fact that, "application of foreign law lays a considerable burden upon
the court and is often attended by further inconveniences and disadvantages.
Moreover, substantial justice may frequently be obtained under the local law. It
would be a mistake to dismiss such a . . . phenomenon as an aberration or as a
vagary of the courts".3 s The expressly stated reason given by the Law Commis-
sion for their conclusion in favour of not changing the existing rule was, "It is
our strongly held view that practical considerations should prevail".36
While one accepts that practical considerations can be endowed with a cogency
denied to theoretical arguments the reasoning of the Law Commission is not
entirely convincing. When the husband's domicile was the only basis upon which
the English courts assumed jurisdiction in divorce the question whether the peti-
tioner's or the respondent's personal law should be applied could not arise: the
lex fori was English, the domiciliary law was English, and the personal law of
the husband, and consequently of the wife, was English. This tidy situation,
whatever may have been the motivation behind its simplicity, was overtly rooted
in theory — domicile governed status. Is it an adequate answer to perpetuate the
same practice under different conditions merely by pleading that practical consid-
erations compel it? The Law Commission strengthened their case by outlining a
"relatively straightforward" example which would "be heard, if undefended, in a
county court". 37 One may object to this by suggesting that where foreign law
is in issue the matter may be referred to a High Court Judge* for determination.
This would appear to be caught by the Law Commission's further argument that,

30. The enactments applied where the court had jurisdiction, in the first case to proceedings for
presumption of death and dissolution of mariage and in the second to proceedings under s. 40 (1)
on the basis of the wife petitioner's residence in England, though neither spouse was domiciled in
31. Law Comm. Rep. No. 48, paras. 107-8.
32. See, Morris, Conflicts of Laws, (1971), pp. 167-8.
33. See, Zanelli v. Zanelli (1949) 64 T.L.R. 556, where the Court of Appeal held that a deserted
wife whose husband was domiciled in Italy, which at that time did not permit divorce, was able
to obtain a divorce in England - the question whether English law alone should apply was not
directly argued.
34. Nussbaum, Principles of Private International Law, (1943), p. 37.
35. Ibid., pp. 41-42.
36. Law Comm. Rep. No. 48, para. 105.
37. Law Comm. W.P. No. 28, para. 82.

"to require the petitioner to lead evidence of foreign law in an undefended di-
vorce case would be a serious obstacle to the swift and inexpensive administra-
tion of justice" 3 8 , which argument, although the declared objectives are in
themselves highly desirable, appears to beg the question of what constitutes the
proper administration of justice. The reasoning of the Law Commission borders
on sophistry when it is claimed that, "There are likely to be many complexities
involved in the search for the 'proper law' of a marriage where the case contains
a foreign element" 3 9 , and, further, that, "to require English courts to dissolve
[or to refuse to dissolve? ] the marriage of parties connected with this country
by applying alien concepts . . . would be regarded by many people as undesir-
able even if it were practicable".40 There is a suggestion here that the choice
of law process should be pre-empted by the jurisdiction selection process. The
Law Commission had already indicated its attitude to this matter in its considera-
tion of the problems associated with founding jurisdiction on the residence of
the petitioner alone: "A further risk is that . . . a non-resident respondent may
be divorced in England on a ground which, perhaps, was not a ground for di-
vorce by his or her personal law. [But this] has to be accepted as a lesser hard-
ship than denying relief to a petitioner who has established the required residen-
tial links with this country". 41 This hardship need only be accepted if one first
accepts that jurisdiction selecting rules pre-empt the choice of law issue, for if
the two enquiries remain separate then the risk is rather that the petitioner "who
has established the required residential links" with the forum may be denied
relief by reference to the personal law of the non-resident respondent.
The Law Commission considered that the contention was not a compelling
one in theory which states that if a connecting factor is sufficient to found
jurisdiction then it is sufficient to justify the application of the law of the
forum.42 Although one can agree with this conclusion of the Law Commission
one remains unconvinced that the contention was completely rejected by the
Law Commission for it also considered that a choice of law approach might
deter plaintiffs who were justified in resorting to the English court 4 3 , and con-
cluded that in order to protect that privilege to invoke the jurisdiction that
"the grounds and defences should continue to be exclusively those of English
law". 44


The idea which allegedly underpins domicile is that of a person's permanent


38. Ibid., para. 83.

39. Law Comm. Rep. No. 48, para. 104.
40. Law Comm. W.P. No. 28, para. 83.
41. Law Comm. Rep. No. 48, para. 39.
42. Law Comm. W.P. No. 28, para. 83.
43. Law Comm. Rep. No. 48, para. 104.
AA.Ibid. p. 40.

"By domicile we mean home, the permanent home; and if you do not understand
your permanent home I am afraid that no illustrations drawn from foreign writers
or foreign languages will very much help you to it". 4 5

The Private International Law Committee, in its First Report 4 6 , contented itself
with the conclusion that residence was an "ambiguous" term but was satisfied
that domicile could be expressed in terms of "home". The ambiguity of this
latter word is self-evident and it is somewhat in the nature of a catch-word
drummed into service to convey a general notion of attachment, using this word
in both an objective and a subjective sense, and passing muster for both residence
and domicile. Thus, if a person has two homes in different countries he is
domiciled in that in which he has his principal home. 4 7 However, domicile
diverges from the notion of home by the insistence that, first, no person can
be without a domicile at any time, and second, that no person can at the same
time for the same purpose have more than one domicile. 48 These refinements
stem from the belief that it is incumbent upon the law of every territory to be
able to ascribe to every given individual a legal 'centre of gravity' 4 9 , "the one
technically pre-eminent headquarters", resulting either from "fact or fiction" 5 0 ,
in order "to determine which of two municipal laws may be invoked for the
purpose of regulating the rights of the parties". 5 '
Domicile is "an idea of law". 5 2 In the words of an eminent author, however,

45. Whicker v. Hume (1858) 7 H.L.C. 124, 160 per Lord Cranworth. See, Dicey, Conflict of
Laws, 1st ed., (1896), pp. 80-90. Also, p. 106 n. 2 where this eminent writer takes pains to
elaborate the distinction between domicile and 'home'.
46. Cmnd. 9068, (1954), para. 13.
47. Forbes v. Forbes (1854), Kay 341, 367; see, Restatement, Redraft 1954, s. 24: "When a per-
son with capacity to acquire a domicile of choice has more than one home, his domicile is in the
earlier home unless the second home is his principal home"; of this approach it was said in Wahl
v.Att.-Gen. (1932) 147 L.T. 382, H.L., "In a similar situation, the Restatement raises the pre-
sumption that his English home corresponds with his domicile, and the onus of proof being on
Wahl to show another home as his principal home. In other words, ordinary residence raises the
presumption of domicile".
48. See, generally, Dicey & Morris, op. cit., 9th ed., Rules 5 & 6, pp. 88-90.
49. Wolff, Private International Law, 2nd ed., (1950), p. 106.
50. Bergner & Engle Brewing Co. v. Dreyfus (1898), 51 N.E. 531, 532 per Holmes J. Cf. Restate-
ment, 1934, s. 11 "every person has at all times one domicile, and no person has more than one
domicile at a time", reiterated in 1954 Draft, eventually modified to, "for the same purpose",
Restatement, Second, s. 11 (2).
51. Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 307, 320 per Lord Westbury; Udny v. Udny (1869),
L.R. 1 Sc. & Div. 441; Garthwaite v. Garthwaite [1964] P. 356, 379. Earlier indications in favour
of multiple domiciles: see, Somerville v. Somerville (1801), 5 Ves. 750, 786; Re Capdevielle
(1864), 2 H. & C. 985, 1018, used 'commercial' domicile as a synonym for residence: cf. The
Harmony (1800), 2 C.Rob. 322;La Virginie (1804), 5. C. Rob. 98. See, Dicey, op.cit., 1st ed.,
pp. 95-7.
52. Belly. Kennedy (1868) L.R. 1 Sc. & Div. 320 per Lord Westbury. English law knows of three
categories of domicile: of origin, of choice, and that possessed by persons under a disability,
which last is variously termed a domicile by operation of law (which is confusing for a domicile
of origin is also said to attach by operation of law), a derivative domicile, or one of dependency.
The latter is employed by the Domicile and Matrimonial Proceedings Act 1973, ss. 1 (2) and 4.
See, Lord Advocate v. Jaffrey [1921] 1 A.C. 146, 165-66; Dicey & Morris, op. cit., 9th. ed., pp.

"originally a good idea . . . the once simple concept has been so overloaded by a
multitude of cases that it has been transmuted into something further and further
removed from the practical realities of life". S3

That this is so is amply illustrated by the process of enquiry which, it has been
claimed, is necessary for a determination as to change of domicile: thus, it has
been laid down that,

"there is no act, no circumstance in a man's life, however trivial it may be in itself,

which ought to be left out of consideration" 54 ,

which, for example in one leading case, involved the consideration of,

"the tastes, habits, conduct, actions, ambitions, health, hopes and projects of
Mr. Winans deceased . . . as keys to his intention to make a home in England".5 s

Consequently, it should come as no surprise that,

"the differences of . . . people often have to be adjusted in accordance with the

community to which they 'do not belong' 5 6 . . . 'domicile' frequently does not
represent the community to which people belong".5 7

Nevertheless, the 'permanent home' approach persists in judicial attitudes to

domicile. Domicile is thus:

"That place . . . in which he has voluntarily fixed the habitation of himself and
his family, not for a mere special and temporary purpose, but with a present inten-
tion of making it his permanent home, unless and until something (which is un-
expected, or the happening of which is uncertain) shall occur to induce him to
adopt some other permanent home". 5 8

In Udny v. Udny 5 9 , the act of residing was referred to in terms of 'settling',

or of voluntarily fixing a sole or chief residence in a place, and in the slightly
earlier Bell v. Kennedy 6 0 , domicile was seen in the context of a man setting
up his 'tabernacle'. In that case, Lord Cairns L.C. saw the question as being:

"Whether the appellant. . . had determined to make, and had made, Scotland
his home, with the intention of establishing himself and his family there, and
ending his days in that country". 6 '

In the result, 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. 62 However, one can add that a person does not

53. Morris, op.cit, p. 13.

54. Drevon v. Drevon (1864) 34 L.J.Ch. 129, 133 per Kindersley V.C.
55. Casdagli v. Casdagli [1919] A.C. 145, 178 per Lord Atkinson.
56.Indyka v.Indyka [1967] 2 A.E.R. 689, 111 per Lord Pearce.
57. Ibid. p. 721 per Lord Wilberforce.
58. Lord v. Colvin (1859), 4 Drew. 366, 376 per Kindersley V.C.
59. (1869), L.R. 1 Sc. & Div. 441.
60. (1868), L.R. 1 Sc. & Div. 307.
61. Ibid., p. 311. Emphasis supplied.
62. See, generally, Dicey & Morris, op. cit. pp. 85-6. Dicey, op. cit., 1st ed., p. 110.

cease to have his home in a country merely because he is temporarily resident
elsewhere, or even concurrently resident elsewhere, although a person who has
formed the intention of leaving a country may not cease to have his home
there until he acts in accordance with that intention, e.g., by sending his family
on ahead or by beginning his journey of departure. Such statements would
appear to accord with commonsense. The same is not necessarily quite so true
of domicile. A person may have no home anywhere because he is never present
in any place otherwise than as a casual visitor or because he has abandoned one
home and is in itinere with the hope of establishing another when he arrives.
Such a person will be accorded a domicile. Again, a person may have, in fact,
a home in one country but be unable to acquire a domicile there because the
law denies him the capacity of acquisition, as is the case with minors. Such
persons may be domiciled in countries in which they do not have their perma-
nent home. A person who lives in a country and intends so to do for a further,
say ten years, can be said to be resident there. For that person to be domiciled
in that place he must, instead, intend to reside there permanently or indefinitely.
Further, a person could be said to have his home in, e.g., Australia, even though
he has never been there if he has settled his family there and intends shortly to
join them. However, a domicile cannot be acquired anywhere in Australia until
he is physically present there. The result is that a person may be domiciled in
a country which to all intents and purposes he has abandoned, apart from the
accident of circumstance that he has not physically departed across its frontiers,
by a holding that he still has his 'permanent home' in the 'abandoned' country.
In such a situation the wife would acquire a domicile in one of the Australian
States whereas the husband, and any children, would retain their English domi-
ciles. This would be the result of construing ss. 1 and 4 Domicile and Matrimo-
nial Proceedings Act 1973 together. As we have seen, the result of s. 1 is that
the husband and wife, even if living together, may have separate domiciles.
Section 4 is concerned with the problem of whether the domicile of a dependent
child should follow that of his father or his mother. Under the Act the basic
rule remains that the children 6 3 follow the domicile of the father except where
the parents are alive and living apart, whether or not they are divorced, where-
upon the child's domicile will follow that of the mother, first, if he has his
home with her and has no home with the father and, secondly, if he has at
any time in the past had her domicile by virtue of that rule and has not since
had a home with his father. In the above example it is hardly conceivable that
the spouses would be held to be "living apart" for the purposes of s. 4. 6 4 This
anomalous situation could, in unfortunate circumstances, give rise to hardship

63. The domicile of a dependent child whose mother is dead is that which the mother last had
before she died if at her death the child had her domicile by virtue of s. 4 and has not since had
a home with the father. The domicile of an illegitimate child (the new provisions do not apply to
the latter but do apply to adopted children) probably cannot be changed at all.
64. Cf. Bangs v.InhabitantsofBrewster (1873) 111 Mass. 382, and see, Restatement, Second,
s. 16, comments d, f. For interpretations of this phrase in the context of the Divorce Reform Act
1969 see, Fuller v. Fuller [1973] 1 W.L.R. 130;Mouncerv.Mouncer [1972] 1 W.L.R. 321;
Santos v. Santos [1972] 2 W.L.R. 889

as where, perhaps, one spouse dies before being reunited with the other, the
difference in domiciles not being in accordance with their intentions.
As the above example indicates, although presence is a necessary concomi-
tant of intention, in some situations it may either not be an operative factor
or, alternatively, it may be dispensed with entirely, as where domicile is acquired
vicariously by operation of law transmitting a domicile of dependency. Harrison
v. Harrison 6 S affords a good illustration. Harrison was born in England in
1930 with an English domicile of origin. In 1948 his parents emigrated to
South Australia, leaving him in England. In 1950 he emigrated to New Zealand,
married a New Zealand woman and decided to live there permanently. Three
months before attaining his majority he and his wife arrived in England for the pur-
pose of his business training, i.e., a temporary purpose. Two years later, the
wife petitioned for a divorce and the question arose, where was he domiciled?
It was held that he was domiciled in England: until he attained his majority
he was domiciled in South Australia, although he had never been there; by in-
tending to reside permanently in New Zealand he abandoned his domicile in
South Australia, but did not acquire a domicile of choice in New Zealand
because at no time after he came of age did he ever reside there: consequently,
his English domicile of origin revived.

A. Factum of Residence
An independent person can acquire a domicile of choice by the combination
of residence and the intention of permanent or indefinite residence 6'. This
factum, although usually referred to as residence, is technically a mis-nomer
for all that is required, in theory, is the fact of presence. In practice there
will be few cases where the distinction will be one with a difference for
the difficulties of proving the requisite animus, as we shall see, will be in-
tensified if the factum claimed in support of the acquisition of a domicile
of choice is as insubstantial as mere presence. Simply in terms of evidential
probability of success it will usually be necessary to show residence, and even
residence of a high quality, rather than merely presence. This is all the more so
in view of the fact that the enquiry as to the animus is subjectively orientated
in that what is to be ascertained is not the objective 'centre of gravity' of the
propositus but his state of mind, and this against the back-cloth of a tendency
to lean against any change of domicile. In such an enquiry the bald fact of
presence is rendered small indeed.
It is convenient here to note that the residence necessary to support the
acquisition of a domicile of choice must have been, "freely chosen, and not
prescribed or dictated by any external necessity".67 However, this requirement

65. [1953] 1 W.L.R. 865.

66. See, Dicey & Morris, op. cit., 9th ed., p. 86 et seq., passim; Graveson, Conflict of Laws,
6 th ed., (1969), p. 204 et seq., passim; Cheshire & North, op. cit., 8th ed., p. 162 et seq.. passim.
Cf. Restatement. Second, s. 16, comment b. Also, Dicey, op. cit., 1st ed., p. 80 et seq.
67. Udny v. Udny (1869), L.R. 1 Sc. & Div. 441, 458. See, generally, Dicey & Morris, op. cit.,
9th ed., pp. 106-12.

simply means that where the residence is not freely chosen the inference of
animus manendi, which might be drawn, ought not to be drawn from the fact
of the residence alone.68 If the necessary animus can be proved by other means
the domicile can be acquired nevertheless. Thus, a person who resides in a
country in order to institute 6 9 or to evade 7 0 matrimonial proceedings may
acquire a domicile in that country. In a recent case concerning the acquisition
of a domicile of choice by a serviceman, Willmer J. expressed the opinion that:

"It is no longer possible to keep the question of the factum of residence separate
from the question of animus . . . for the animus must be an important element to
be taken into account when considering whether the residence relied on is or is
not voluntary residence".71

This has been criticised 7 2 on the ground that to require that the necessary
residence should be voluntary is an unnecessary refinement for if the presence
of the propositus is involuntary he should be held not to have acquired a
domicile of choice as a result of his lack of an intention to reside permanently
in the country. There is nothing of substance to be gained from using the same
question as to volition to undermine the other element of residence .While it is
submitted that the point is well taken, it would appear equally that this illustrates
clearly the tendency to confuse the meanings of words, the ideas expressed there-
in, as a result of the identity of the terms used.

"A new domicile is not acquired until there is not only a fixed intention of estab-
lishing a permanent residence in some other country, but until also this intention
has been carried out by actual residence there". 73
Early suggestions that a domicile of choice could perhaps be acquired by inten-
tion without residence, in those cases where the propositus clearly demonstrated
the abandonment of a domicile and died in itinere before actually reaching the
new country, were firmly put down in Udny v. Udny 7 4 where a suggestion of
Sir John Leach in Munroe v. Douglas 7 5 to the effect that a Scotsman, having
acquired an Anglo-Indian domicile and having finally left India but not having
settled elsewhere, did not re-acquire his original domicile of origin, was strongly
In order to acquire a domicile of choice it is not necessary that the residence
should be lengthy in point of time. The domicile attaches at the very moment
that the fact of residence becomes established:

68. See, Bempde v. Johns tone (1796) 3 Ves. 198, 201-2.

69. Drexel v. Drexel [1916] 1 Ch. 251.
70. Firebrace v. Firebrace (1878), 4 P.D. 63.
71. Cruickshanksv. Cniickshanks [1957] 1 W.L.R. 564, 568.
72. McClean (1962) 11 Int. & Comp. L.Q. 1153, 1159.
73. Bells. Kennedy (l$6S), L.R. 1 Sc. & Div. 307, 319 per Lord Westbury.
74. (1869), L.R. 1 Sc. & Div. 441. Dicey, op. cit., 1st ed. pp. 118-9.
75. (1820), 5 Madd. 379. Dicey, op. cit., 1st ed. p. 117.
76. (1869), L.R. 1 Sc. & Div. 441, 449-50, 453-54. Cf. Restatement, Second, s. 19, adopting the
view expressed by Sir John Leach.

"Now this case was argued at the Bar on the footing, that as soon as Mr. Bell left
Jamaica he had a settled and fixed intention of taking up his residence in Scotland.
And if, indeed, that had been ascertained as a fact, then you would have had the
animus of the party clearly demonstrated, and the factum, which alone would re-
main to be proved, would in fact be proved, or, at least, would result immediately
upon his arrival in Scotland".77
A clear example of the need for nothing other than presence, given the requisite
animus, was provided in Re bonis Raffenel 7 8 , where, her husband having died
(domiciled) in France, the widow expressed a clear intention to return to England
but at the point of departure was taken ill and subsequently died before she
could leave the country. It was held that her French domicile had not been
successfully abandoned as intention alone was insufficient. If she had died
immediately after escaping French territorial waters then her English domicile
of origin would have revived and if immediately after entering the United King-
dom territorial waters off the coast of England then an English domicile of
choice would have been acquired.
It follows that the length of residence is not important per se although it
may be very evidential as to the animus manendi.19
At one time there was a strong school of thought which advanced the view
"length of residence, according to its time and circumstances, raises the presump-
tion of intention to acquire domicile. The residence may be such, so long and so
continuous, as to raise a presumption nearly, if not quite, amounting to a prae-
sumptio juris et de jure; a presumption not to be rebutted by declarations of inten-
tion, or otherwise than by actual removal".80

In Bruce v. Bruce 8 1 an early decision on intestate succession and mobilia se-

quuntur personam, Lord Thurlow stated:
"it is an erroneous proposition that a person is to be held domiciled where he drew
his first breath 8 2 , without adding something more unequivocal. A person's being
at a place is prima facie evidence that he is domiciled at that place, and it lies on
those who say otherwise to rebut that evidence. It may be rebutted no doubt. A
person travelling; — on a visit; — he may be there for sometime on account of his
health or business . . . But what will make a person's domicile or home, in contra-
diction to these cases, must occur to everyone. A British man settles as a merchant
abroad; he enjoys the privileges of the place; he may mean to return when he has
made his fortune, but if he dies in the interval, will it be maintained that he had

77. Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 307, 319 per Lord Westbury.
78. (1863), 3 Sw. & Tr. 49. Cf. Tee v. Tee [1974] 1 W.L.R. 213, discussed, infra.
79. Munro v. Munro (1840), 7 Cl. & Fin. 842, 876 per Lord Cottenham: "residence alone has no
effect per se, though it may be most important as a ground from which to infer intention".
80. Hodgson v. De Beauchesne (1858) 12 Moo. P.C. 285, 329, per Dr. Lushington. Cf. Re Grove
(1888), 40 Ch.D. 216, 243 per Lopes L.J., where forty five years' residence produced an "almost
irresistible" inference of domicile: Dicey, op. cit., 1st ed., rules 13, 17.
81.(1790), 2 Bos. &P. 229 n., reported as a footnote to Marsh v.Hutchinson (1800), 2 Bos. & P.
226; see, also, Bempde v. Johnstone (1796), 3 Ves. 198.
82. For the modern law as to attribution of domicile of origin, see, Dicey & Morris, op.cit.,
9th ed., pp. 93-4; Dicey, op.cit., lth ed., pp 100-4.

his domicile at home? In this case Major Bruce left Scotland in his early years; he
went to India; returned to England, and remained there for two years without so
much as visiting Scotland, and then went again to India and lived there sixteen
years and died. He meant to return to his native country it is said, and let it be
granted; he then meant to change his domicile, but he died before actually
changing it". 83
This view in favour of holding a man to be domiciled where he had his home
in fact, on a more objective assessment, began to give way in the face of a
disinclination to find for a change of domicile, particularly a loss of the domicile
of origin:
"it depends upon the intention, upon the quo animo . . . it must be a residence
sine animo revertendi 8 4 , in order to change the domicilium originis: a temporary
residence for the purpose of... business has not the effect: it must be a fixed and
permanent residence, abandoning finally and for ever the domicile of origin".8 5
"Residence . . . cannot, when looked at with reference to the animus, be regarded
otherwise than as an equivocal a c t . . . even though his residence there may be long
and continuous . . . A domicile, although in some cases spoken of as 'home',
imports an abiding and permanent home, and not a mere temporary one". 86

In the result, "residence may be some small prirna facie proof of domicile" 8 7 ,
its cogency increasing with length but being of itself insufficient from which to
infer the animus, although "the quality of the residence may afford the necessary
inference" 8 8 , the modern view being that "residence must answer a qualitative
as well as quantitative test". 89

B. The influence and scope of the animus

The necessary intention is that of living permanently in the country of
residence: "it must be residence fixed not for a limited period or particular
purpose, but general and indefinite in its future contemplation".90 In the past
this has been interpreted as meaning 'for ever'. In recent times the intention is

83. See, 126 E.R. 1252-53. Note that even at this early date domicile in the context of succession
and choice of law was accepted as a stricter concept than domicile — residence for matrimonial
purposes, see, also, Somerville v. Sommerville (1801) 15 Ves. 750, 786-87, 858 per Sir R.P.
Arden M.R. Cf. Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588, discussed, infra.
84. For a recent discussion as to this, see, Tee v. Tee [1974] 1 W.L.R. 213, discussed, infra.
85. Stanley v. Bernes (1830), 3 Hag. Ecc. 373, 437-38 per Sir John Nicholl.
86. Jopp v. Wood (1865), 34 L.J.Ch. 212, 218 per Turner L.J. See, also, Steel v. Steel (1888)
15 R. 896, 909, "Nobody in his senses ever goes to Burmah sine animo revertendi", and, Doucet
v. Geoghegan (1878) 9 Ch.D. 441, 453, "It is well known that everyone who goes to India does
so for the express purpose of making money and returning to this country as soon as
possible"; both cited, Dicey & Morris, op. cit., 9th ed., p. 104 n. 85. Cf, Dicey, op. cit., 1st ed.
p. 93 n. 1.
87. Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 307, 321 per Lord Westbury.
88. Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588,595 per Lord Thankerton.
89. Ibid., p. 598 per Lord Macmillan.
90. Udny v. Udny (1869), L.R. 1 Sc. & Div. 441, 458 per Lord Westbury.

usually expressed in an alternative form, viz. permanently or indefinitely.91
Consequently, it does not appear unreasonable to regard the requisite intention
as not being absent merely because the propositus cannot deny completely the
existence of a vague possibility of returning to the country of the previous
domicile or of going to some third country at some future time. 92 Conversely,
it is clear that the animus is absent despite residence of an indefinite duration
where there exists an intention to move, "upon a clearly foreseen and reasonably
anticipated contingency, e.g., the end of his job". 9 3 The modern academic view
as to this matter has been justified on the following grounds:

"The intention required for the acquisition of a domicile of choice is an intention

to remain permanently in the place of one's choice. This exaggerated emphasis on
permanence has sometimes resulted in the denial of a domicile of choice to persons
who have spent long years in a particular country. Doubtless it has been influenced
by the nineteenth century image of the ambition of the colonial civil servant to
come home on his retirement at the end of a long and active life in India, in Africa
or elsewhere in what was then called the British Empire. At that time the emphasis
on intention of permanent residence might have been valid. It is less compatible with
modern social conditions, and is better represented by Mr. Justice Scarman in his
judgment in The Estate ofFuld (3) where he states that 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".
"Unlimited" is more compatible with the uncertainties of modern life than the
permanence of the nineteenth century . . ,". 94

This view, although having much commonsense to commend it, still has to be
established in contradistinction to the authoritative pronouncements of the
House of Lords delivered in judicially recent times, in particular, in Winans v.
Att.-Gen. 9 S and Ramsay v. Liverpool Royal Infirmary.96 As to the first,
Winans was born in the United States in 1823. In 1859 he went to England
and lived there until his death in 1897. In 1850 he had gone to Russia where
he was employed in equipping railways. During the Crimean War he rendered
assistance to the Russian Government in the construction of gunboats. While in
Russia he married a woman from Guernsey. In 1859 his health broke down.
There were symptoms of consumption and he was medically advised to winter
in Brighton, which he did with reluctance. In 1860 he took a lease on property
in Brighton and thenceforth spent increasing periods of time in England until,
as from 1893, he spent the whole of his time there. Although he took a lease
of some shooting in Scotland he never purchased property in England and at
his death he still held the tenancy of the Brighton houses. The question before

91. See, Dicey & Morris, op. cit., 9th ed., p. 85 et seq., passim; Graveson, op. cit., 6th ed.,
pp. 206-9; Cheshire & North, op. cit., 8th ed., p. 78 et seq., passim. Dicey, op. cit., 1st ed., p.
92. See, Culbenkian v. Gulbenkian [1937] 4 A.E.R. 618, 626-27 per Langton J. See, also,
Henderson v. Henderson [1965] 2 W.L.R. 218.
93. In the Estate ofFuld (No. 3) [1968] p. 675, 684 per Scarman J.
94. Graveson (1972) 19 Neth. Int. L.R. 31, 39.
95. [1904] A.C. 287.
96. [1930JA.C. 588.

the court was whether legacy duty was payable in respect of an annuity given
to a relative by the deceased and this in turn depended on whether at his death
he was domiciled in England. It was held that it had not been proved with
perfect clearness that the propositus had at his death formed any fixed and
settled purpose, no final and deliberate intention to abandon his domicile of
origin in favour of settling in England.9 7 The second case affords a striking
comparison in illustrating the extent to which the law had changed in the course
of over a century. In 1790 9 8 it was held that, where the propositus had left
his native land and resided abroad for most of his life but expressed an unfulfil-
led intention to return, he had acquired a domicile of choice. In 1930 " i t was
held that where there had been such a departure and life-long residence abroad
and where the propositus had expressed and fulfilled his intention never to re-
turn, his domicile of origin persisted. The testator, a bachelor, who was born in
Scotland in 1845, left there to reside in Liverpool some time between 1890 and
1892 in order to be near his mother and sister. He was dependent on an allow-
ance from his brother who also resided in Liverpool. He lived in lodgings until
about 1914 when he moved into the house formerly occupied by his mother,
who had died in 1905, and his brother, who had died in 1912, sharing it with
his sister until her death in 1920. He remained there until his own death in
1927. At no time did he ever return to Scotland, refusing to do so even for
his mother's funeral. He expressed a determination never to set foot in Glasgow
again and arranged for his burial in Liverpool. On the other hand, he referred
to himself as a Glaswegian both in statements during his lifetime and in his will.
This instrument, which gave residue equally between three Glasgow charities and
one Liverpool charity, was formally valid if he died domiciled in Scotland, but
was formally invalid if he died domiciled in England. The House of Lords held
that the deceased's long residence in Liverpool, the last thirty six years of his
life, was due merely to inertia and that it was inadequate to discharge the onus
of proof of change of domicile: "The long residence of George Bowie is remark-
ably colourless, and suggests little more than inanition". 100 The almost over-
whelming presumption in favour of the continuance of the domicile of origin is
clearly evidenced by the law relating to the onus of proof:
"the onus of proving that a domicile has been chosen in substitution for the
domicile of origin lies upon those who assert that the domicile of origin has
been lost". 101

97. The irony of the case was that of the eight judges involved in the determination six con-
cluded in favour of a change of domicile - both judges at first instance, all three judges on
appeal to the Court of Appeal, and one in the final appeal to the House of Lords. Of the other
two judges sitting in the House one declared himself unable to reach any positive decision on the
conflicting evidence and fell back on the rule that the domicile of origin must continue on a
failure to discharge the onus of proof of showing a change.
98. Bruce v. Bruce (1790), 2 Bos. & P. 229 n. See, supra, n. 83.
99. Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588.
100. Ibid, p. 595 per Lord Thankerton. Cf. May v. May [1943] 2 A.E.R. 146. On the need for
unequivocal acts, see, Re Lloyd-Evans [1947] 1 Ch. 695 Also, Trovers v. Holley [1953] p. 246,
252 per Jenkins L.J.
101. Winansv.Att.-Gen. [19O4]A.C. 287, 289 per Lord MacNaghten; see, Lauderdale Peerage

It is worthy of note that of the twelve disputed cases of domicile to reach
the House of Lords since 1860 in only one was it held that a domicile of origin
had been lost. 102 In a recent decision of the House on recognition of foreign
divorce decrees it was suggested that domicile as a basis for recognition was
"to solve the conflict between the English and Scots' courts with regard to mar-
riages celebrated in England", ' ° 3
and that its development along strict lines was influenced by,
"the special situation existing between England and Scotland with its interplay of
long-term residents". 104
In Scotland, where the power to grant dissolution had existed since the Reforma-
tion, the grounds of jurisdiction were much the same as those of the English
ecclesiastical courts prior to 1858. Consequently, a short residential period in
Scotland was accepted as founding jurisdiction. If one can accept that there
existed significant numbers of persons who, rather than 'adopting' England or
Scotland as the case may be, instead merely sojourned in the respective other
country, albeit for a considerable period, then it is comprehensible that a concept
akin to nationality, a change of which could be said to signify clear evidence
of such adoption, should have developed from the original notion of residence,
a fact which per se would be inadequate to distinguish 'native' residents from
those of sojourn, i.e., foreigners.105 It is interesting to speculate that if there
had existed such a concept as English nationality, and thus distinguishable from
Scottish nationality, perhaps the English concept of domicile in its strict form
might never have arisen. 106
A domicile of choice is lost when both the residence and the intention nec-
essary for its acquisition are given up. Two questions that have arisen recently
for discussion in this context are, given the factor of physical departure or ab-
sence from the country of domicile, first, is it necessary to demonstrate that
the departure was animo non revertendi or does it suffice if it was sine animo
revertendi? and, secondly, is the animus sufficient for abandonment of the
domicile of choice so as to revive the domicile of origin or is a new factum of
residence necessary for revival to operate?

Case (1885) 10 App. Cas. 692, 739 per Lord Selborne. Also, Restatement, Second, s. 19,
comment c.
102. The exception is Casdagli v. Casdagli [1919] A.C. 145. See, Morris, op. cit., p. 20.
103. Indyka v. Indyka [1967] 2 A.E.R. 689, 697 per Lord Reid.
104. Ibid., pp. 710-11 per Lord Pearce.
105. See, for indications of such an approach, Moorhouse v. Lord (1863) 10 H.L.C. 272, Udny
v. Udny (1869) L.R. 1 Sc. & Div. 441, suggesting that a change of domicile requires a change of
nationality ;JV7&oyef v. Niboyet (1878) 4 P.D. 1, arguments of counsel at pp. 2-3\Harvie v. Farnie
(1882) 8 App. Cas. 43, headnote to decision reads "native".
106.See,e.& Ehrenzweig & Jayme, Private International Law, Vol. 2, Special Part (1973), p. 100,
"England's domicile of origin which may be seen as the very ancestor of the nationality principle

The latter question had arisen for consideration in Udny v. Udny 1 0 7 in the
specific context whether the respondent was legitimated per subsequens matri-
monium. Scottish law allowed for such legitimation but English law did not. 1 0 8
The father of the child, Colonel Udny, had a domicile of origin in Scotland.
Upon his marriage in 1812 he took the lease of a house in London, residing
there until 1844, although with short visits to Scotland. Due to financial diffi-
culties he departed for France. The respondent was born in 1853 and the
Colonel, acting upon advice as to legitimating the child, and his wife having
died earlier, went to Scotland and married the mother, a French woman. The
Court of Session held that Colonel Udny had never lost his domicile of origin.
The contention laid before the court was that the acquisition of a domicile of
choice actually obliterated the domicile of origin which could thus only be re-
acquired by the combination animo et facto. The House of Lords strongly re-
jected such contention on the ground that it would lead to the absurdity of a
domicile of choice which had been abandoned unequivocally persisting in the
interim before the propositus acquired a new domicile, either of choice or of
origin, and affirmed the decision that the father was domiciled in Scotland but
on the ground that his domicile of origin had automatically revived upon his
quitting England in 1844 and had not been displaced by the acquisition of a
French domicile of choice.
Both questions arose in Tee v. Tee.109 The husband, having an English
domicile of origin, married an American woman in England in 1946. The follow-
ing year they went to live in the United States, the husband becoming a natu-
ralised citizen, and acquiring a domicile of choice. In 1960 his employment duties
took him to Germany. In 1966 he left his wife and lived with a German woman.
In 1966-67 he decided to make his permanent home in England. After several
house hunting visits he purchased, in May 1972, a house which he occupied in
November 1972. In the interim, in July, he petitioned for divorce. On an objec-
tion by the wife that he was at all material times domiciled in a State in the
United States, a preliminary issue was directed whether the domicile of origin
automatically revived upon formation of the animus notwithstanding the absence
of the factum. Latey J. had found as a fact that the intention to make a home
in England had been made in 1967 and concluded {quaere) that by 1969 the
husband's domicile of origin had revived. On appeal, Davies L.J., presenting the
leading judgment of the Court of Appeal, was firmly of the opinion that the
domicile of origin revived "automatically on the intention being formed". 110
But which intention, that of intending not to return to the United States or
being without the intention to return? His Lordship's observations as to this are
ambiguous. He concluded on the findings as to fact that the operative state of
affairs was the intention to make England the permanent home, which produced

107. (1869) L.R. 1 Sc. & Div. 441. See, Dicey, op. cit., 1st ed., pp. 118-9.
108. Not until 1927 with the coming into effect of the Legitimacy Act 1926.
109. [1974] 1 W.L.R. 213.
110. Ibid., p. 215. Cf. Lauderdale Peerage Case (1885), 10 App. Cas. 692, 739 per Lord Selborne,
"an intention to settle there permanently, sine animo revertendi".

as a corollary the animo non revertendi: "certainly by 1969, he had intended
not to reside there again but to reside in this country", and he cited a passage
from In re Marrett lxl to this effect, that "he must have left it, with the
intention of leaving it permanently". 112 However, he also cited the rule in
Dicey & Morris 113, which advances the alternative form, and derived assistance
from the judgment of Megarry J. in In re Flynn, deed. 114 who thought that
the correct view was that absence or removal sine animo revertendi sufficed to
destroy a domicile of choice and to revive a domicile of origin.115 Scarman L.J.
agreed that the English domicile of origin revived upon the abandonment of the
domicile of choice and did so automatically without the necessity of the factum
of residence in England to supplement the animus. It is curious that his Lordship
also observed that:

"But it is equally clear . . . that at the time . . . the husband had not returned
physically to live in England. He had acquired by purchase a house in May 1972
. . . but he . . . did not in fact obtain vacant possession or take up residence there
until the November following the presentation of the second petition. Thus, at
the critical time, namely the date of the . . . petition, although he had abandoned
his domicile of choice, he had not physically returned to live in the country of
his domicile of origin. Nevertheless [it] did revive".116

Recalling that Latey J. had found as a fact that the intention to make a home
in England had crystallised in 1967, the curiosity lies in the suggestion that the
factum, had it been necessary, as it would in a case of domicile of choice,
would have needed to satisfy a qualitative test, Le., to be more than mere
presence and to be residence in fact as well as in name, and this despite the
fact that the animus already existed. The suggestion gathers strength in that it
is clear from the findings of fact as elaborated by Davies L.J. that the husband
had been present in England on several occasions after the formation of the
animus. One would have thought that the position was clear that where the
animus was established any presence in that intended country would have
sufficed to attach the domicile.117 However, it has been observed, with some
authority, that for the purpose of acquiring a domicile of choice residence,
"means very little more than physical presence. But it does mean something
more: thus a person is not resident in a country in which he is present
'casually or as a traveller'. The point has been well put in an American case in
which it was said that residence was 'bodily presence as an inhabitant' " . 1 I 8

111. (1887) 36 Ch. D. 400,407 per Cotton L.J.

112. [1974] 1W.L.R. 213, 215.
113. See, now , Dicey & Morris, op. cit., 9th ed. p. 114, rule 13, "by ceasing to intend to reside
there". Contra, Cheshire & North, op. cit., 8th ed., p. 173, advancing the opposite view with
some force, viz., "Irresolution effects nothing".
114. [1968] 1 A.E.R.49.
115. Ibid., p. 58. In most cases it will make no difference which test is applied, as in the present
and see, also, AH v. Ali [1966] 1 A.E.R. 664, 666-67 per Cumming - Bruce J.
116. [1974] 1 W.L.R. 213, 216.
117. See, particularly, Bell v. Kennedy (1868), L.R. 1 Sc. & Div. 307, 319 per Lord Westbury,
supra. See, Dicey, op. cit., 1st. ed., p. 107.
118. Dicey & Morris, op. cit., 9th ed., pp. 95-6, citing, Manning \. Manning (1871) L.R. 2 P. & D.

In the instant case it could be argued that the husband was present in England
between 1967 and November 1972 merely "casually or as a traveller" in that
his presence was confined to his leave periods and was for the dual purpose of
holidays and house hunting. With respect, however, where it is accepted that
the requisite animus has been formed, to further require that the co-requisite
factum should be more than presence is an unnecessary refinement and indicates
the tendency to fail to distinguish between the evidential fact of a qualitative
presence, which could support a finding as to residence for other purposes and
which is relied upon to prove disputed animus, and that residence as a distinct
This rule of automatic revival of the domicile of origin has been rejected in the
United States, where an existing domicile is deemed to continue until actually
replaced by the acquisition of another. 119 In an American case 1 2 0 this
English rule was considered to be an exception to the normal rule of survival
until displacement by acquisition, grafted on primarily for purposes of succession.
Certainly one can find several early English cases which support such a view. 121
The motivation, at least in part, for the exception was the firm belief in the
law of primogeniture held by the numerous men, especially of English birth,
who became traders, etc. in the American colonies, in India and elsewhere,
and who desired that their estates should descend according to the established
laws of their native land, at a time when men left Europe for the West and
East to make their fortunes, many with the intention of eventually returning to
the land of their birth. At such times transportation was slow and difficult, even
perilous. This view is perhaps supported by the belief at one time current that
naturalisation was necessary to prove conclusively that a domicile of origin had
been abandoned 1 2 2 , and, also, and more strongly, by the refusal of the English
courts in the nineteenth century to accept that a European could acquire a
domicile of choice in an Oriental country. 123 The court in In re Estate of
Jones 1 2 4 was not prepared to perpetuate the English rule in times which were
so different from those wherein it had originated. It can, of course, be argued
that the American alternative "seems no less arbitrary" than the English doc-
trine, and that what is important is that, "both of them are designed to ensure
that a personal law shall be ascertainable at all times and in all circumstances

223, 226, and, Re Newcomb (1908) 192 N.Y. 238, respectively. Note that the former was not
a decision on the factum necessary for domicile, but on the meaning of "residence".
119. Restatement, Second, s. 19, and comment b. Recommended, Private International Law
Committee, 1954, Cmnd. 9068, First Report, rule 13.
120. In re Estate ofJones (1921) 182 N.W. 227.
121. See, Sill v. Worswick (1791), 1 H.B1. 665, 690 per Lord Loughborough; Somervtffe v.
Sommerville (1801), 5 Ves. 750, 787 per Arden M.R.; Ryan v. Ryan (1816), 2 Phill.Ecc. 332,
334 per Sir John Nicholl; Curling v. Thornton (1823), 2 Add. 6,15-17 per Sir John Nicholl;
Anderson v. Laneuville (1854), 2 Sp. 41, 55 per Dr. Lushington.
122. Moorhouse v. Lord (1863), 10 H.L.C. 272, 283 per Lord Kingsdown. See, now, Wahl v.
Att.Gen. (1932), 147 L.T. 382, 385 per Lord Atkin.
123. Re Tootal's Trusts (1883), 23 Ch.D. 532;Abd-ul-Messtti v. Farra (1888), 13 App. Cas. 431;
see, also, supra, n. 154. See, now, Casdaglis. Casdagli [1919] A.C. 145. Dicey, op. cit., lsted.,
p. 88.
124. (1921) 182 N.W. 227.

for every individual".125 However this may be, the English concept of domicile
has survived, despite some intense criticism l26, into the second half of the
twentieth century virtually unchanged in its essentials and with the approval, or
at least acceptance, of the House of Lords ' 2 7 , the Law Commission ' 2 8 , and


The concept has been equally strongly defended, particularly by the Law
Commission, whose argument may be taken as starting with a consideration for
the "many people who still regard themselves as belonging to a country despite
the fact that they are not resident there or may not be citizens of it. We have
in mind, for example, those expatriates from this country, who, though living
abroad sometimes almost permanently, yet regard themselves as 'belonging' to
England".130 For example, "where an English couple have gone, say, to Africa
to take up a business or professional assignment there, they clearly should not
be denied access to our courts. They have a continuing interest in England and
we have a continuing interest in them and their children. Moreover the country
where they reside may have no court to which they can resort in relation to
their matrimonial affairs. To deny them resort to the English courts unless they
resumed residence in England would be unfair. No residence test could meet
this need unless mere presence in England were to be the ground of jurisdiction
and that would obviously open the door too widely". 131 The conclusion of the
Law Commission is that the great advantage of domicile lies in the fact that it
is the only jurisdiction basis which does, or can 132, provide adequately for
English expatriates, and, furthermore, that:

"Despite its artificialities, domicile has worked satisfactorily in the majority of

cases and there does not appear to be any strong feeling for its abandonment".13 3
Is it not the case that this great advantage arises purely as a result of the ex-
aggerated emphasis that English law places upon intention and the presumption
against a loss of domicile, particularly one of origin? Why should a residence
test fail to meet this alleged need? Surely only if the additional requirement of

125. Graveson, loc.cit., p. 39.

126. See, e.g., Kahn-Freund (1964), 27 Mod. L.R. 55, 57, "dethrone the superannuated 'domicile'
concept of English and Scottish Law".
127'. Indyka v. Indyka [1967] 2 A.E.R. 689, 711 per Lord Pearce, "until a question of domicile
comes before your Lordships' House, one must accept the strict test... and acknowledge the
existence of the wide gap that lies between our concept of domicile and that of other countries".
128. Law Comm. W.P. No. 28, para. 19, "it seems unlikely that any root-and-branch reform of
the general law of domicile would be possible at present". But, cf. para. 37, infra, n. 131, 133.
129. Domicile and Matrimonial Proceedings Act 1973, s. 1.
130. Law Comm. W.P. No. 28, para. 5.
131. Ibid., para. 37, viz., to forum shoppers.
132. See, ibid., para. 34 re the disadvantage of nationality as a jurisdiction base in England.
133. Ibid., para. 37; also, Hartley & Karsten (1974) 37 Mod. L.R. 179, 183.

resuming residence is considered as necessary. If domicile is not lost by absence
arising from such a cause why should, say, habitual residence be lost? If the
domicile is retained because the place of work assignment is no more than that
and does not become a new 'centre of gravity' displacing the former 'home',
then perhaps there is a case for applying the same reasoning equally to residence.
Where the context of 'belonging' in an objective sense, viz. of having and main-
taining close connections, has effectively disappeared or substantially dwindled
by virtue of living abroad "almost permanently", then the basis upon which the
Law Commission's claims would appear to rest is that undue empasis which is
placed upon the animus.13 4 The implication is that domicile should be retained
in an unaltered form not because, "despite its artificialities, domicile has worked
satisfactorily in the majority of cases", for in the majority of cases a residence
test would work just as well, but because of those "artificialities". The claim of
the Law Commission ' 3 5 that in the vast majority of cases domicile is generally
an appropriate basis for purposes of jurisdiction is not a justifiable conclusion
from the fact only that most people have their homes in the country of their
domicile, although the fact is undoubtedly true. It follows that they have their
home there according to the exacting test of "home" necessary for domicile. It
would seem to follow that those people would satisfy a less exacting test of
"home". Certainly, it is clear that some people establish a home in a country
which is not that of the domicile and it is acceptable that such less exacting
test of home suffices for purposes of jurisdiction in that non-domiciliary coun-
try. 136 Accordingly, such less exacting test must suffice logically to found
jurisdiction over domiciliaries having such a home in the country of the domicile.
As previously indicated, where jurisdiction is founded in England then English
law automatically applies. The distinction for the purposes of the argument lies
between those who satisfy the less exacting test and are governed by the lex
fori, and domiciliaries who are governed by the lex domicilii. In this latter case
one can equally say that there is jurisdiction whenever the personal law applies,
insofar as the former must establish a home of some factual content according
to some objective assessment whereas the latter are under no such obligation,
albeit that the majority do so in practice, but need only maintain, and evidence,
a subjective intention as to the governing law. Accordingly, jurisdiction will be
exercised in the case of a domiciliary who has no home within the territory
except a "home" according to that exacting test, viz., he previously had a home
in that he manifested the requisite animo et facto and it has not been proved
that he has abandoned the domicile thereby acquired, and not even then in
every case, as with a domicile of origin. If it is alleged that the foundation of
jurisdiction is in practice that of "home", it would appear to follow that it is

134. See, Law Comm. W.P. No. 28, re the objectives of jurisdiction rules, para. 13 (2), "should
be such that persons who reasonably regard themselves as belonging to a country should not be
excluded by them".
135. Ibid, para. 48.
136. See, Recognition of Divorces and Legal Separations Act 1971, s. 3 (1) (b), (2); Domicile
and Matrimonial Proceedings Act 1973, s. 5.

"residence" that is more commonly, and realistically, the appropriate basis and
not domicile which derives its justification and purpose essentially from attitudes
pertaining to the governing law.


This is not to say that domicile should be abolished, nor pruned of its
essential elements. The argument lies with the presentation of the domicile con-
cept as being essentially a home oriented concept, as being a residential nexus
which unfortunately over the years has become cumbersome with technicality.
The notion of home can now be fairly accurately expressed in other ways, but
domicile can only remain as such while it retains its technicality — remove that
and one produces perhaps home as understood non-juridically, or "domicile" as
understood by the Council of Europe ' 3 7 , or perhaps habitual residence.
In the circumstance that there exists no concept of English nationality, as
distinct from U.K. citizenship, it is comprehensible that it may be thought
desirable to maintain the strict concept of domicile as being a personal law in
such matters as status and succession (and certainly its operation resembles
nationality in this respect). That is a clear issue and amenable to debate on its
merits. If domicile has such a function to serve then that purpose should be
clearly expressed and not presented in the guise that in certain circumstances
it is a desirable advantage of an historical development that may be regretted in
that it is capable of producing what might now be considered to be unfortunate
or even harsh decisions but that otherwise does little harm in the majority of
cases. Such a stratagem serves no useful purpose. What would be lost if instead
it was stated that English law should apply to such matters as status and succes-
sion where the interests of English expatriates are concerned but that, because
such persons would not be able to show a sufficient residential connection with
the forum to justify the assumption of jurisdiction, the use of domicile as a
choice of law factor to ensure the application of English law would be defeated
if it were not also employed as a jurisdiction selecting factor. That is the
approach that has now in effect been indorsed by the legislature. One may not
agree with it but it is preferable to unconstructive resort to the fiction of the
'permanent home'.

137. See, Council of Europe, Standardisation of the Legal Concepts of'Domicile'and 'Residence',
1972, Resolution (72) 1 and Annex with Explanatory Memorandum: for the text see (1973) 20
Neth. Int. L.K. 213.