The Traditional Concept of Domicile Determined Solely by English Law - Essay Example

With reference to the ‘traditional’ concept of domicile, determined solely in accordance with English law, critically evaluate the accuracy of the assertion that: “Despite the significance of the concept of domicile, the rules for determining a persons domicile have repeatedly been criticised as unnecessarily complicated and technical, and as sometimes leading to absurd results.” 1. Introduction Domicile is a concept that responds to specific social, legal and political needs. The importance of this concept can be derived by the fact that a series of legal rules refer to the specific term in order to explain the rights and the obligations of persons in the context of a particular society. Usually, the criteria used for the identification of domicile are differentiated in countries around the world – in most cases the system of law adopted by a specific country is used to decide on the characteristics of domicile in the above country. It should be noted that misunderstanding is often caused because of the co-existence of other terms, like residence, that also refer to the relation of a person to a specific geographical place. Because of the value of domicile in determining the rights and the obligations of people in different social and political activities, a series of rules has been introduced describing the criteria under which a person’s domicile is identified; however, the effectiveness of these rules has been strongly criticized. The specific problem – the level of accuracy and effectiveness of the rules used for identifying a person’s domicile – is examined in this paper; it has been proved that the rules adopted for the identification of domicile had to be analytical and detailed – in order to respond to the needs of all related human activities but also to ensure the protection of social and political rights; however, in the long term the above characteristic of these rules had become a major disadvantage leading to the decrease of their effectiveness. At a next level, the limitation of the effectiveness of rules of domicile has been a phenomenon irrelevant with the characteristics of the system of law developed in a particular country; however, current paper refers especially to the rules of domicile developed in the English law emphasizing on the lack of effectiveness of these rules as a result of the use of complex and technical terms – used primarily for ensuring the adaptability of these rules to current social conditions, a target that was never achieved as explained below. 2. Domicile in the context of English law In English law, domicile is related with two criteria, as described in the following definition: ‘a person’s domicile is the country which he regards as his permanent home and thus contains a dual element of actual residence in a country and the intention of remaining there’ (Keenan, 2007, 230). One of the most important characteristics of domicile is that it is obligatory, in terms that each person needs to have a place of residence; at a next level, domicile is unique, no person can declare that he/ she is related to two different places – referring to the case of domicile and not to the potential differentiation between the place of domicile and the place/ country of origin. Furthermore, domicile can be developed to a specific region – not necessarily a country – in case that this region has been considered as a separate entity – having its own administrative bodies – within a particular country, like in the case of USA where the domicile of persons is related with a particular state. The above issues are highlighted in the study of Keenan (2007); in the above study, it is made clear that domicile can have two different forms, being distinguished in domicile of origin and domicile of choice. There is also the issue of residence, a concept that has specific characteristics – different from domicile. The effectiveness of domicile can be identified only if referring primarily to its forms – as mentioned above; the differentiation of the characteristics of domicile – among its various forms – can be used in order to explain the reasons for the limitation of the effectiveness of domicile in the context of English law. The domicile of origin – a common form of the specific concept – is considered to be quite critical for the identification of a person’s rights and obligations under the rules of the English law; in accordance with the current rules of common law, the domicile of origin of a child is based on the domicile of origin of his father; however, it is necessary that the following two requirements are met: a) the father is alive when the child is born and b) at the time of the child’s birth the father is married to the child’s mother; in case that the above requirements are not met, then the domicile of origin of the child is that of the mother (Keenan, 2007, 230). The domicile of origin – as described above – is possible to be changed by choosing a different place of domicile – the domicile resulted through the specific activity is known as domicile of choice and can be acquired only under specific requirements. For example, when a person becomes 16 years old can choose to have a different domicile from the one of his father or his mother – domicile that has been acquired by one of the parents is domicile of origin (the term dependent domicile – see below – is also used) and that which the person chooses to acquire is a domicile of choice. A particular form of domicile is the dependent domicile; this exists – at least at a first level – for specific categories of persons – minors and married women; at this point, the following issues need to be explained: in English law, the dependent domicile is regulated by the Domicile and Matrimonial Proceedings Act 1973; in accordance with this act, a minor – a person under 18 years old – is considered to have the same domicile of origin with his father – or his mother under the criteria mentioned above; it is noted in the above legislative text that after the age of 16 a minor can ask for a different domicile – a domicile of choice (sections 3-4 of the above Act); for married women, there is another approach used for defining the dependent domicile – married women can have the domicile of their own – the section 1 of the Domicile and Matrimonial Proceedings Act 1973 is differentiated at this point from the relevant rules of the common law – in accordance with which, a married woman was obliged to have the domicile of her husband. As for the relationship between the concept of residence and that of domicile, the following comments would be made: residence is not considered to have a limited value when rights and obligations are to be related to a specific person; in fact, residence can be regarded as an element of domicile; the latter requires the existence of residence in a place but need to be followed by an intention to stay permanently – or at a long time – at the specific place (Keenan, 2007, 230). In case law, specific criteria have been set for considering a place as being a person’s domicile – differentiation is further made among domicile of choice, domicile of origin and residence. In the case of Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood the Court held that domicile of choice is characterized by the following criteria: ‘there must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation’ (Lord Westbury, Udny v Udny (1869) LR 1 Sc & D 441 in Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood). Furthermore, it is made clear that when a claim is presented regarding the existence of a domicile of choice, it is necessary that the claimant has ‘a singular and distinctive relationship with the country of supposed domicile of choice; that means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days’ (Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood). At a next level, it is noted that in order to decide on the existence or not of domicile, the following requirements are met: ‘the intention of residence must be fixed and must be for the indefinite future. It is not enough for instance that at any given point in time its length has not been determined’ (Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood). The domicile of choice – as described above can become obsolete – in other words, it can be considered as non-valid when under specific circumstances; in that case, the domicile of origin is made again applicable for determining a person’s rights and obligations. The specific issue is highlighted in the case of Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood where it reference is made to a case of 1869 and it is noted that in that particular case ‘the House of Lords held that the respondents father had lost his domicile of choice in England and that his domicile of origin had revived’ (Udny v Udny (1869) LR 1 Sc & D 441 in Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood). The identification of domicile is critical when the jurisdiction of courts on particular disputes needs to be decided; usually, the law of the place where the person has his/ her domicile is applied. However, there are cases – as indicatively presented below – where the identification of domicile by the court has been proved to be particularly difficult – for example, when the intention of a person to be permanently established in a specific country is not clear (Haji-Ioannou & Ors v Frangos) or when different laws can be applied on the distributions of a deceased person’s assets (Dellar v Zivy & Ors). Also, in Al-Bassam v Al-Bassam the court held that ‘the courts of a foreign country have jurisdiction to determine the succession to all property of a deceased person which is situated in such a country; this jurisdiction is unaffected by the domicile of the deceased; Such determination will be followed in England’ (Al-Bassam v Al-Bassam). In these cases the court taking into consideration the facts of the case but also the rules of the private international law identifies the actual intention of a person to choose a specific domicile or to keep his/ her domicile of origin. Still difficulties exist regarding the identification of the actual intention of a person to have a place as domicile or to be related with the law of a particular country. As noted above, the concept of domicile is quite important in order to identify the country the courts of which have the jurisdiction on a particular case; within the borders of the country, domicile is used to decide on the jurisdiction of national courts in relation to a specific dispute. The particular issue is highlighted in the case of Heidland Werres Diederichs v Flexiquip Hydraulics Ltd where the Court held that the identification of jurisdiction should be based on article 39 of Regulation 44/2001 where it is noted that ‘the local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement’ (par. 2, article 39, Reg. 44/2001, Heidland Werres Diederichs v Flexiquip Hydraulics Ltd)) The rules of the private international law can be used in this case in order to confer power that would not be otherwise acquired by the Courts of a specific country. For example, ‘jurisdiction can be conferred to make an administration order in respect of a foreign company when that jurisdiction is ordinarily confined to the companies of a particular country: Re Dallhold Estates (UK) Pty Ltd [1992]; or it may enable the court to apply a foreign law when, as in Re Suidair International Airways Ltd [1951] it would otherwise be obliged to apply only English law, as in England v Smith [2001]’ (McGrath & Ors v Riddell & Ors). On the other hand, it is possible that the key issue examined in a particular case is regulated by specific legal rules – in this case, the general rules referring to a country’s jurisdiction may not be applied – the specific legislative text – related with the specific case – would be applied instead (Kahn-Freund, 1975). The above issue is examined by the Court in the case of McGrath & Ors v Riddell & Ors where the domicile of companies is explained as follows: ‘usually it means the place where the company is incorporated but that may be some offshore island with which the companys business has no real connection’ (McGrath & Ors v Riddell & Ors). The above term is used by the Court in combination with the principle of universalism – a rule applied on English law in cases where disputes related with the insolvency law arise between countries of the common law and which is used in order ‘to ensure that all the companys assets are distributed to its creditors under a single system of distribution’ (McGrath & Ors v Riddell & Ors); in the specific case, the Court held that since the ‘extension of the English jurisdiction or an application by the English court of a foreign law’ (McGrath & Ors v Riddell & Ors) were not issues that should be put under examination in the context of the particular case, the jurisdiction of the Australian courts on the specific case could not be doubted – as a results the assets of the company involved in the case could ‘be remitted to Australia’ (McGrath & Ors v Riddell & Ors). 3. Effectiveness of the rules for identifying domicile – issues for consideration The concept of domicile has two main criteria – characteristics; however, the identification of domicile by the courts – in order to decide on the existence or not of jurisdiction – has been proved to be particularly difficult. This difficulty has been resulted mainly because of the introduction in the rules related with domicile of complex and technical terms – an indicative example is the use of the terms ‘personam’ jurisdiction and ‘subject matter’ jurisdiction, a concept which ‘is concerned, inter alia, with the extent to which the law or the courts orders applies extra-territorially’ (Masri v Consolidated Contractors International Company SAL & Anor). The specific term has been used in order to show the difference in the court potentials to proceed with a case under the terms of ‘personam’ jurisdiction, which emphasizes on the bond between a person and the English law. However, these terms have not particularly helped towards the development of fully justified decisions on jurisdiction, a fact also admitted by the court in Masri v Consolidated Contractors International Company SAL & Anor where it is noted that ‘the mere fact that an order is in personam and is directed towards someone who is subject to the personal jurisdiction of the English court does not exclude the possibility that the making of the order would be contrary to international law or comity, and outside the subject matter jurisdiction of the English court’ (Masri v Consolidated Contractors International Company SAL & Anor). The ineffectiveness of existing rules on domicile is also highlighted in the study of Dwight et al. (1997); the case Rex v Lolley (House of Lords) is used in order to show that the rules on domicile can lead to severe mistakes – through the decision of the superior courts on the above case it can be derived that ‘a marriage contracted in England could not be dissolved in any other way except by act of the legislature’! (Lord Chancellor Eldon, in Dwight et al., 1997, 180). Because of the problems related with the application of the law of domicile, its limitation could be a potential option for courts in England. The specific suggestion is made by the Professor Westlake (‘Private International Law’, 4th ed., p. 32); in accordance with the view of the above researcher: ‘there is no reason why the English law should recognize any obligation to take note of the law of the domicile’ (Baty, 1986, 24). 4. Conclusion It is clear from the material presented above – literature and, mainly, the case law - that the Court can decide on a person’s or company’s domicile taking into consideration specific criteria and facts; usually, the circumstances of the case are critically explored – relevant case law is also used in order to understand the actual intentions of a person (individual or legal entity) to have a specific place as his domicile of choice – or to keep his domicile of origin (Shah, 2005). However, problems and difficulties are not avoided – inaccurate assumptions are also a common phenomenon – the complexity of rules of domicile can be considered as the major reason for this outcome. The review of existing legal framework on domicile in the English law could help to the improvement of the credibility of the case law developed in the specific field (Forsyth, 2007). The fact that the existing case law refers to specific issues related with domicile does not seem to be particularly helpful for the increase of effectiveness of the law of domicile – particular aspects of domicile have been regulated in the existing case law – still there are issues that need to be addressed in order for the specific concept to keep its validity. References / Bibliography Baty, T. (1986) Polarized law (with an English translation of the Hague conventions on private international law): three lectures on conflicts of law, delivered at the University of London. Wm. S. Hein Publishing Dwight, T., Dwight, E. (1997) Commentaries on the Law of Persons and Personal Property: Being an Introduction to the Study of Contracts. Wm. S. Hein Publishing Forsyth, W. (2007) Cases and opinions on constitutional law, and various points of English jurisprudence: collected and digested from official documents and other sources: with notes. Stevens & Haynes, 1869 - Original from Harvard University – Digitized: Aug 6, 2007 Hurlstone, T., Coltman, J. (2007) The Exchequer reports: Reports of cases argued and determined in the courts of Exchequer & Exchequer Chamber ... Easter term, 25 Vict. to [Trinity vacation, 29 Vict.] ... both inclusive. [1862-1865], volume 2, T. & J. W. Johnson & Co., 1866 - Original from Harvard University – digitized: Oct 2, 2007 Kahn-Freund, O. (1975) General problems of private international law. Martinus Nijhoff Publishers Keenan, D. (2007) Smith & Keenans English law: text and cases, Edition15, Pearson Education Lall, V., Khemchand, D. (1997) Encyclopaedia of international law. Anmol Publications PVT Mac Chombaich De Colquhoun, P. (2007) A summary of the Roman civil law: illustrated by commentaries on and parallels from the Mosaic, Canon, Mohammedan, English and foreign law: with an appendix, map, and general index. V. and R. Stevens and Sons, 1854 - Original from Harvard University – Digitized: Aug 21, 2007 Murphy, J. (2005) International dimensions in family law. Manchester University Press Shah, P. (2005) Legal pluralism in conflict: coping with cultural diversity in law. Routledge Cavendish Westlake, J. (2008) A treatise on private international law: or the conflict of laws, with principal reference to its practice in the English ... and numerous references to American authorities. T. & J.W. Johnson, 1859 - Original from Harvard University – digitized: Mar 10, 2008 Case Law Al-Bassam v Al-Bassam [2004] EWCA Civ 857 (01 July 2004) Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577 (23 May 2008) Dellar v Zivy & Ors [2007] EWHC 2266 (Ch) (09 October 2007) Haji-Ioannou & Ors v Frangos [2009] EWHC 2310 (QB) (21 September 2009) Heidland Werres Diederichs v Flexiquip Hydraulics Ltd [2006] NIQB 100 (14 February 2006) Masri v Consolidated Contractors International Company SAL & Anor (includes Addendum) [2008] EWCA Civ 303 (04 April 2008) McGrath & Ors v Riddell & Ors (Conjoined Appeals) [2008] UKHL 21 (9 April 2008) Read More