The Conflict of Laws - Term Paper Example

The Conflict of Laws Nationality means a person’s allegiance to a particular as a citizen or as a member of that state. Apart from stateless persons, everyone is the subject of some state to which they owe political allegiance and loyalty, for which they should be called upon to fight, pay taxes and support, and from which they may expect protection. These are broad general statements only. For instance, although we say that all persons must be national subjects of some state or other, it is true that due to upheavals of war there are some unfortunate stateless persons who have been disowned by or expelled from, their country of birth and origin (Barker and Padfied, p 75). Nationality is of great importance in fostering freedom and rights of individuals in public law. Thus, British citizens enjoy universal freedom, for instance, the right to vote at local and parliamentary elections. Aliens in Britain have no much right. They are subject to certain restrictions concerning entry into United Kingdom and employment after entry; furthermore they must register certain particulars with the police (Briggs, p 123). Citizens of the European Union, however, have a right to freedom of movement within the state ad are not subject to the same restrictions as other aliens. Apart from these requirements, English law treats aliens in much the same way as ordinary British subjects: for example, they are subject to the same rules of criminal law and the same laws of tort and contract (Barker and Padfied, p 75). Domicile is a quite different from the concept of nationality. Thus, a person may be British subject and yet be domiciled. Domicile is the legal relationship between an individual and a legal system of territory. The concept of domicile, under English law, involves two elements: actual residence; and the intention to remain in that place or country. Where these two elements co-exist, a person is said to have a domicile in that country. When a person gets domiciled in United Kingdom, certain assets are protected from the claim of their creditors. Such assets include their homestead, retirement plans, life insurance, annuities, assets held in a properly structured corporation, Limited Liability Company, and certain types of partnerships and, in many cases, wage accounts. This protection is generally unlimited; however many disadvantages of asset protection are not available or are limited when personal bankruptcy is involved (Briggs, p 123). Whereas nationality implies a political relation existing between a person and the state to which they owe allegiance; domicile determines important civil rights and obligations. Under the English law, it is inflexible to rule that every person must possess a domicile, and no person can have more than one domicile. A person is domiciled in the country he or she has a permanent home (Briggs, p 123). There are three classes of domicile. That is; domicile of origin, domicile of choice and domicile of dependent persons. Domicile of choice is where a person of full age and capacity establishes their home in a country with the intention of remaining there permanently, such country being different from their last domicile; they are regarded as acquiring a domicile of choice. Secondly, domicile of origin attaches at birth (Stone, p 295). A legitimate child takes the domicile of the father; an illegitimate child that of its mother. A foundling, deserted infant without known parent, acquires the domicile of the place where found. Finally, domicile of dependent person’s state that minors take the domicile of their parent (Barker and Padfied, p 75). Children may take their mother’s domicile instead of their father’s where the spouses are separated and the children make their home with their mother. A woman who marries normally acquires her husband’s domicile immediately on marriage. However, under the domicile and matrimonial Act, 1973; a married woman is now capable of acquiring a domicile independent of her husband. This statute also states that a person is capable of acquiring an independent domicile when they attain the age of sixteen (Clarkson and Hill, p 56). The problems arising from either nationality or domicile choice of law approaches have induced European courts and legislatures to search for other solutions. Some courts and legislatures have started to mitigate the sharp distinction between nationality and domicile by the notion that, over the years, a person might have lost a true social connection with his or her national law. Some courts therefore have ventured to substitute domicile for nationality whenever the law of the domicile appears to be the most closely connected law (O’Brien and Smith, p 6). In this manipulative way of dealing with conflicts, courts, in cross boundary family disputes, may either stress the intent of the parties to stay in the country of residence or the objective links that connect the situation with the host state in order to justify their preference for the law of the domicile over the national law of the parties? Or, they may instead prefer to emphasize nationality over domicile in order to achieve results that appear to be more appropriate to the particular circumstances of the case (Clarkson and Hill, p 56). The problems with this approach are that: first, it confers broad powers on the courts without providing guidance on how to use these powers correctly; and, second, it determines predictability because the case decisions are so highly individualized that they have little precedential value. There is the need to advocate for party autonomy in conflict issues involving immigrant disputes (Stone, p 295). The controversy with regard to nationality and domicile goes back to the notorious question of the remarriage of divorces when, the native country of one of the partners failed to recognize the legality of a prior divorce. This is an issue that for the last thirty years has proved troublesome in all legal systems in Europe whose conflict of law rules were geared to the national law principle (Stone, p 295). Muslims originating from countries that officially adhere to Islam do not lose their nationality of origin, not even after having acquired a new nationality of the country of residence. Secondly, most Muslims who are actually living in Europe demonstrably keep in touch with their countries of origin, including investing their savings there, spending long yearly holidays with family that remained there and even choosing fiancée. Therefore, multiple citizenship is not easy to apply to Muslims (Stone, p 295). According to Potz and Wieshaide (p, 30), in the better law approach, both nationality and domicile become soft connecting factors with considerably more manipulative potential. Courts may either stress the intent of the parties to stay in the country of residence, or the objective links that connect the situation with the host state, in order to justify their preference for the law of the domicile over the personal law of the parties. They may instead prefer to emphasize nationality over domicile in order to achieve results that appear to be more appropriate to the particular circumstances of the case. In their search for more harmonious solutions, some courts have come to mediate the sharp distinction between nationality and domicile. Instead, it is proposed that a person might have lost a true social connection with his or her national law. Some lower courts therefore come to substitute domicile for nationality whenever the law of the domicile appears to be the most closely connected law. Some legislatures have come to approve of this view, specifically in instances of divorce. Nationality is displaced as the primary concerning factor in case either spouse in a divorce no longer has a true social connection with his or her country of citizenship (Briggs, p 123). Freedom of choice appears to be eminently suitable for legal relationships that involve persons having different nationalities or in cases where one or both have dual citizenship. For example, spouses who no longer share the same nationality, which law is to be applied to their divorce? The option to make a deliberate choice in favor of one legal system thus warrants a predictable choice of law result. The same is true of the possibility for recognition of illegitimate children. Conclusion The merger of nationality in domicile, that a disputed domicile is one of the most difficult topics which were presented to the investigation of courts of justice, while the claims which are based on nationality demand immediate action from diplomatic agents, often at a distance from all such proofs as are alleged in cases of disputed domicile, and almost always without the time to investigate them if they were present. It is therefore essential, that questions of nationality should continue of such simple investigation as is comprised in the question “Does nationality you claim belong to you by birth?” if not, where are the papers of naturalization? (Briggs, p 123). For the moment, it can be said that English law engages in the conflict process because it would be unjust to treat international case as a domestic one and apply to it the rules of domestic law, is disregard of other legal systems which are clearly connected to the case and may have a proper interest in the solution. It would be wrong to treat parties, who have acted under one legal system, as if they acted under another and to make their rights and status depend on the accident of the forum (O’Brien and Smith, p 8). Works cited Barker David and Padfied Frank. Law. London, Elsevier, 2002. Pp 75-77. Briggs Adrian. The conflict of laws. Oxford, oxford university press, 2008. Pp 120-125. Clarkson Christopher and Hill Jonathan. The conflict of laws. Oxford, oxford university press, 2006. Pp 56-60. O’Brien John and Smith Raymond. Conflict of laws. London, Routledge, 1999. P 5-10. Potz Richard and Wieshaider Wolfgang. Islam and the European eunion. London, Peeters Publishers, 2004. P 30. Stone Peter. EU private international Law: harmonization of laws. London, Edward Elgar Publishing, 2006. P 394-396. Read More