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In Conflict of Laws, domicile (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.
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 his or her domicile of origin, A has the capacity to take multiple spouses, the marriages should not alternate between valid and invalid every time A crosses a state boundary where the local laws are different. If A is an infant and therefore has reduced contractual capacity, that will tend to apply wherever A goes. Furthermore, when a person dies, it is the law of his or her domicile that determines how his or her will is to be interpreted, or if the person has no valid will, how his or her 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 will be the same. But, 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, whereas one can have dual nationality, there can never be more than one domicile at a time. But 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:
- the father if legitimate;
- the mother if illegitimate;
- the individual who has primary parental responsibility rights if not a parent; or
- the country in which he or she is found if a foundling. Under the law of the United States, where a person's place of birth is unknown, his or her domicile of origin is "the place to which a person can earliest be traced.".
Domicile of choice
Once a person reaches the age of majority, he or she is free to choose a new domicile. This choice is effective when an individual has the both the factum, i.e. unequivocally abandons his or her old domicile, and the animus semper manendi, i.e. enters a new state with the intent to make it his or her permanent home. This 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.
State domicile in the United States of America
Each State of the United States is considered a separate sovereign within the U.S. federal system, and each therefore has its own laws on questions of marriage, inheritance, and liability for tort and contract actions. Persons who reside the U.S. must have a state domicile for various purposes. For example, an individual can always be sued in their state of domicile. Furthermore, in order for parties to invoke the diversity jurisdiction of a United States Federal Court, the plaintiffs may not have the same domicile as any defendant.
External links
- Ashton, R. K. Acquiring a Domicile of Choice and Losing a Domicile of Origin *
- Trott, Philip D A. Dual Nationality *
Notes
- First Restatement of Conflicts, § 14(3).
"Domicile (law)"