1. General principles
The concept of domicile is centred on man’s everlasting longing for a ‘home’, a place to live and to return to. Accordingly, English common law traditionally locates a person’s domicile where his or her permanent home is situated. From a legal perspective the purpose of domicile is twofold. First, domicile is a means to individualize a person. Second, domicile serves as a connecting factor (connecting factors (PIL)) for a person’s legal relationships. Domicile is relevant in the most diverse areas of private and public law. According to the explanatory report accompanying the Council of Europe’s (Council of Europe (institutional aspects)) ‘Resolution on the standardisation of the legal concepts of “domicile” and of “residence”’ of 1972, domicile is used, inter alia, in the following modes: as a factor in the acquisition of nationality; as factor in determining jurisdiction of courts and administrative authorities; as a factor in determining where certain procedural acts (execution of judgments, service of documents) must be performed or where certain obligations arise or must be performed (eg payment) and as a factor determining where certain rights or legal relationships (eg guardianship) arise. In addition, in private international law (PIL) domicile is a connecting factor in determining the applicable law.
In European private law, domicile can primarily be found in the Brussels I Regulation (Reg 44/ 2001). Pursuant to the principle actor sequitur forum rei, a person whose domicile lies within an EU Member State can be taken to court in that country, regardless of his or her nationality (Art 2 Brussels I Regulation; jurisdiction (PIL)). The European legislature has refrained from a common European definition of domicile. Rather, the various national concepts of domicile are to prevail. The drafters of the Brussels Convention thought that a unifying definition would not be feasible in light of the ongoing developments within Member States’ national laws. The more recent Brussels IIbis Regulation (Reg 2201/ 2003) abandoned the concept of domicile altogether and, instead, opted for habitual residence as the legal basis for determining jurisdiction. The replacement of domicile by habitual residence is a general trend in European and in international uniform law. This development is due to the fact that habitual residence is less burdened with differing national notions and is also lacking the fictitious elements that characterize domicile. In some treaties, like, for example, the 1951 Geneva Convention on Refugees and the 1954 UN Convention on the Status of Stateless Persons, it is possible to interpret the term ‘domicile’ in a manner consistent with habitual residence.
2. Definitions and legal fictions
Neither European nor international law provide for a uniform concept of domicile. National legal systems define the term differently. Differences do not only exist between continental European and common law countries, but also within continental Europe itself. The common law distinction between domicile of origin and domicile of choice is unknown to continental law. According to that doctrine, every person receives a domicile of origin at birth. A child has his or her domicile of origin in the country in which his or her father was domiciled at the time of birth. Except for adoption, the domicile of origin cannot be changed. In addition, a person can acquire a domicile of choice, which requires residence, meaning more than just temporary presence, and the intention to reside permanently or for an unlimited time in a given place or country (animus manendi). Thus, the requirements that have to be fulfilled to obtain a domicile of choice are rather strict. Only persons that are capable of forming a free will can obtain a domicile of choice on their own, whereas dependent persons share the domicile of the person on whom they legally depend. Dependent persons in this sense include minors under 16 years and mentally handicapped persons. The domicile of choice of a child born inside of wedlock depends on the father’s domicile, whereas the domicile of a child born outside of wedlock depends on that of his or her mother. It is a firmly established principle that no person can be without a domicile. Even if someone has no permanent home, he or she still has a domicile of origin in common law countries.
In continental Europe, the concept of domicile of origin is unknown. In France at the beginning of the 19th century, the Code civil still assumed that every Frenchman must have a domicile. Since then the so-called necessité du domicile has been abolished. As a result, in France, as in other parts of Europe, a person leading a nomadic life can be without a domicile. In other aspects, though, continental legal orders differ from one another. According to the German Bürgerliches Gesetzbuch (BGB), for instance, a person may have a domicile in more than one place at the same time. In contrast, French, Italian and Swiss law all assume that double or multiple domiciles are impossible and that a person may only have one domicile at a given time. Likewise, in some countries the notion of domicile varies with its objectives. Belgian law, for example, provides for a domicile specifically designed for procedural law purposes, and it is determined according to the municipality in which the person registers. Since a person is free to choose where to register, the domicile may be of a fictitious nature.
Fictitious elements are a general characteristic of domicile throughout all legal systems. In common law systems, a person maintains the domicile of origin for his or her entire life even if that person’s residence changed immediately after birth. In continental European countries, fictitious elements play an important role because of the various domiciles that exist by operation of law, as, for instance, for soldiers, public servants and holders of public offices. Likewise, dependent persons, such as minors and persons who lack legal capacity, derive their domicile from their parents’ or legal representative’s domicile. Similar to the domicile of origin, in these cases a person’s domicile does not necessarily reflect his or her actual home, that is, where the person’s centre of life is situated.
3. Legal developments
Except for the elimination of the domicile of dependency for married women in the 1970s, the law of domicile has not been subject to dramatic changes. In the United Kingdom reforms have been discussed for some time. In 1987, the English and Scottish Law Commission presented a report proposing sweeping changes to the law of domicile. According to the report, the domicile of origin was to be abolished and, following continental European laws, acquiring a new domicile of choice was to be facilitated. Yet until now, fundamental reforms have not materialized. The most important change to the law of domicile took place in 1973 with the enactment of the Domicile and Matrimonial Proceedings Act, which abolished the domicile of dependency for married women. Since then, married women have their own domicile and they no longer depend upon the domicile of their husband. Similar reform laws were also passed at the time in continental European countries. To facilitate the application of the Brussels and Lugano Conventions on Jurisdiction and Enforcement of Judgments, the English legislature passed the Civil Jurisdiction and Judgments Act 1982 which includes a special definition of domicile. Unlike common law, under the Act a person is presumed to be domiciled in a country after just three months of residence and the otherwise so important common law concept of domicile of origin does not apply.
The above-mentioned Council of Europe’s 1972 Resolution attempted to harmonize the national concepts of domicile and of residence. According to the Resolution, a person’s domicile must be inferred from the fact that ‘that person voluntarily establishes or retains his sole or principal residence within that country or at that place with the intention of making and retaining in that country or place the centre of his personal, social and economic interests’. A person’s domicile shall be deemed to continue until another domicile is acquired. Minors and persons lacking legal capacity shall not be able to acquire a domicile on their own. If according to these rules a person does not possess any domicile, he or she shall be regarded as being domiciled in the place of his or her present or principal residence. However, in addition to the disadvantage that the Council of Europe’s definition of domicile does not dispense with fictitious elements altogether, its practical relevancy remains marginal, not least due to the Resolution’s non-mandatory character.
4. Uniform law of domicile?
There is hardly another concept as unsuitable for uniform law purposes as domicile. The Council of Europe Resolution did not succeed in eliminating the major differences existing between the national laws of domicile. In the 1960s and 1970s legal writers sought to overcome national differences by postulating unifying concepts such as a ‘domicile international’ (Bernard Schneider) or a ‘social domicile’ (Louis I. de Winter). These efforts proved helpful in revealing what genuinely links a person to a particular territory or place, namely social integration or, as labelled by some, ‘sociological affiliation’. At the same time, creating a uniform notion of domicile has become futile because of the advent of habitual residence. Since habitual residence largely avoids the traps associated with domicile, it comes as no surprise that in international treaties and in other legal documents domicile is increasingly replaced by habitual residence. All in all, from a uniform law perspective domicile represents an outdated concept.
Dieter Henrich, ‘Der Domizilbegriff im englischen Internationalen Privatrecht’ (1960) 25 RabelsZ 456; Louis I de Winter, ‘Nationality or Domicile?’ (1969-III) 128 Recueil des cours 347; Council of Europe, ‘Standardisation of the Legal Concepts of “Domicile” and of “Residence”, Explanatory Memorandum, ch II’ (1973) 20 Nederlands Tijdschrift voor Internationaal Recht 218; Bernard Schneider, Le domicile international (1973); The Law Commission, Law Com No 168, Law of Domicile (1987); Denis Masmejan, La localisation des personnes physiques en droit international privé (1994); Marco Levante, Wohnsitz und gewöhnlicher Aufenthalt im internationalen Privat- und Zivilprozessrecht der Schweiz (1998); Maike Kreitlow, Das domicile-Prinzip im englischen Internationalen Privatrecht und seine europäische Perspektive (2003); Lord Collins and others (eds), Dicey, Morris and Collins on the Conflict of Laws, vol I (14th edn, 2006) ch 6 (Domicile and Residence).