domicile

Definition of domicile

Etymology

From Middle French domicile.

Noun

domicile (plural domiciles)

1. (formal) A home or residence.
   
   The call to jury duty was sent to my legal domicile; too bad I was on vacation at the time.
   
   

Related terms

• domiciled
• domiciliary

Further reading

In Conflict of Laws and for purposes of diversity jurisdiction, domicile (sometimes termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a person's status, capacity and rights. The international term for this as a connecting factor is the lex domicilii, i.e. the law of the domicile. Generally, a person is domiciled in the state or country where he has his permanent home and intends to reside. Domicile is more demanding than habitual residence where there is much less focus on future intent.

Development of the concept

In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children become adult at different ages, etc.? One answer is that people must be given a basic set of rights, like a passport, that they carry with them wherever they go. Hence, if according to their domicile of origin 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 also be clearly distinguished from nationality (also known as lex patriae) which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two are the same. However, where the country is federated into separate legal systems, nationality and domicile will be different. Hence, one might have American nationality and a domicile in Texas. Further, one can have dual nationality but not more than one domicile at a time. This does not prevent a person from having 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 being supplanted by habitual residence in the international conventions dealing with Conflict and other private law matters.

Domicile of origin

A person acquires a domicile of origin at birth. The domicile of a minor child is that of:

1. the father if legitimate;
2. the mother if illegitimate;
3. the individual who has primary parental responsibility rights if not a parent; or
4. the country in which the child was found if a foundling. Under the law of the United States, where a person's place of birth is unknown, their domicile of origin is "the place to which a person can earliest be traced."[1].

The domicile of origin is absolute and will be the base reference point throughout a person's life. Thus, if a person acquires a domicile of choice but later abandons it, the domicile of origin will automatically revive. During the minority, the child has domicile of dependency, and it changes to match that of the relevant adult.

Domicile of choice

A person who has reached the age of majority, is free to choose a new domicile. This choice is effective when an individual has both:

1. the factum, i.e. unequivocally abandons the old domicile, and
2. the animus semper manendi, i.e. enters a new state with the intent to make it their permanent home.

The latter is very difficult to prove because most people retain affection for their previous state and think that they may one day return. Even if a domicile of choice is found to have arisen, it will be lost as soon as either the factum or the animus is lost. At this point, the domicile of origin revives.

Notes

1. First Restatement of Conflicts, § 14(3).