All about domicile: what it is, and how to assert it

Divorce|October 10th 2011

As I mentioned in my post about habitual residence, this blog receives a number of enquiries from people living outside England, enquiring whether it is possible to divorce in England. In that post, I explained that in order to do so, an applicant needs to establish jurisdiction.

One way to establish jurisdiction is via a form of residence in this country, but a major problem is the time frame involved. This is six months if the applicant is domiciled in this country, or twelve months if not.

Many clients are in no immediate position to assert that they have resided in this country for any recent period of time at all.

But there are two other potential avenues, assuming there ever was a connection with England, which allows you to proceed straight away and that is by asserting domicile, in one of two ways.

How to assert domicile

The first method, for European divorces that involve an applicant from an EU signatory country, is under Article 3(1) of Brussels II revised. The drawback is that both parties must be domiciled in this country. If that can be established, no prior period of residence is required.

The second, also outlined under Article 3(1) of Brussels II revised, is a “catch all” or safety net, for an applicant resident outside those EU countries. This method permits a petition to proceed “if no court of a contracting state has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun, the English court has jurisdiction.”

This means that in those non-EU countries, if either one of the parties is domiciled in England and Wales, it is sufficient to found jurisdiction in accordance with Section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973.

However it is not a free-for-all. There is also a second stage. Even if jurisdiction is established, then the judge must also consider whether the applicant’s connection with England and Wales is sufficient for the court to fully exercise its jurisdiction.

The case we are going to look at later in this post is a good example, because it will help readers to consider their own position and what might be required in terms of evidence, if they wish to go down this route.

But what does “domicile” mean?

Domicile differs from nationality, or residence. Domicile is the strongest connection a person can have to his or her country, and is acquired on birth. When born, a child’s domicile of origin is the domicile of his father if his parents are married, or his mother if they are not.

In Mark v Mark (2005) UKHL 42, Baroness Hale said:

“Domicile…is a concept of the common law.

“A person must always have a domicile but can only have one domicile at a time. Hence it must be given the same meaning in whatever context it arises.”

She added:

“It governs capacity to marry or to make a will relating to moveable property; it is one of the factors governing the formal validity of a will; the domicile of the deceased also governs succession to moveable property and is the sole basis for jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975; legitimacy, to the extent that it is still a relevant concept, is governed by the law of the father’s domicile; domicile is one of the bases of jurisdiction, not only in matrimonial causes but also in declarations of status or parentage under the Family Law Act 1976; it is the sole basis of jurisdiction to make an ordinary adoption order under the Adoption Act 1976, s 14, or a parental order under the Human Fertilisation and Embryology Act 1990, s 30. This is not an exhaustive list but it shows the particular importance of domicile as a connecting factor in family law.”

A child’s domicile of origin remains with him unless a domicile of choice is established. This arises “when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time”, as Lord Justice Buckley outlined in IRC v Bullock [1976] 1 WLR 1178.

Domicile of choice

So, in English law you are born with a domicile of origin determined by your parents. But you can change your domicile to a domicile of choice. Sometimes people do so intentionally, for example by advising Her Majesty’s Revenue and Customs that they are no longer domiciled in this country. Sometimes they do so by their actions. The taxman is wise to this. So there are a number of tests to determine if a change of domicile has really happened, before HMRC will give up on the tax.

So even though some parties may say that a domicile of origin has been changed one of choice, legally they may be found not to have done so.

The classic definition of domicile of choice is contained in the case Udny v Udny [2001] 1 FLR 921, which was decided in 1869. In that case, it was said:

“Domicile of choice is a conclusion or inference which the Law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time.

“To acquire a domicile of choice, a person must reside in a country with the fixed intention of settling there and making it his or her sole or principal home for an indefinite period. Residence simply means ‘physical presence in a country as an inhabitant of it’.

“Having acquired a domicile of choice, a person retains it until it is abandoned. Once abandoned, it is possible to acquire a new one. But if there is a hiatus, the domicile of origin revives.

“Abandonment only takes place when the person has left the country with no further intention of ever residing there again.”

If it can be established there is an intention to return to this country, for example, this may affect the decision. At Stowe Family Law we once had a case in which the parties had reserved burial plots in England for themselves, although they had moved overseas. When the wife wished to divorce it was a strong factor – if not the only one – to indicate that neither party had lost their domicile of origin.

Domicile and M v M

In the case of M v M [2010] EWHC 982, domicile of choice was considered in some detail. In this case, a wife issued a petition asserting jurisdiction because of her English domicile only. But her husband objected and the two stage process was undertaken by the court. Interestingly it was not the wife who had to prove her domicile, but her husband.

Mrs Justice Baron observed:

“The burden of proving a change of domicile lies on the party who asserts it. The standard of proof is the balance of probabilities. And cogent and clear evidence is required to show that the balance of probabilities has, ‘been tipped’ whether the issue is the acquisition or abandonment of a domicile of choice.”

Although the husband did not dispute that her original domicile of origin was English because her father was English, he argued that the wife had lost her domicile of origin and acquired a Danish domicile of choice.

But had she? This ultimately depends on the facts of each case which have to be considered in meticulous detail.

The family had spent four years in Denmark, which is not a signatory to the EU Council regulation. They had assets there (and none in England) and their children were of Danish nationality. Despite this, the court considered that the wife did not have the intention to remain in Demark indefinitely, and so held that that Denmark was not her domicile of choice.

The judge then went on to consider whether the court should nevertheless exercise its jurisdiction, applying the second stage of the test. Again, she pointed out that the burden of proving that the balance of fairness requires a stay rests with the husband in this case for it is his application. It is not for him simply to show that England is not the natural or appropriate forum for the trial, but he must establish that there is another available forum which is clearly or distinctly more appropriate than the English forum.”

Mrs Justice Baron then followed Lord Goff of Chieveley in the House of Lords case of De Dampierre v De Dampierre in 1988 when he stated

“It is, desirable to consider the meaning of the expression “the balance of fairness” No doubt there are circumstances when it can plainly be perceived that it is more fair that proceedings should proceed in foreign jurisdiction than in this country. But experience has shown that there are difficulties. First, there are factors which cannot be evenly weighed. For one class of factors may be simply relevant as connecting the dispute with a particular forum whereas another class of factors (which may embrace the former) may point to injustice arising if the dispute is remitted to that forum. It is necessary, therefore, so to structure the inquiry as to differentiate between these two classes of factor, and to decide how each should be approached in relation to the other. Second, a factor may be such that its advantage to one party may be counterbalanced by an equal disadvantage to the other and a decision has to be made how such factors should be taken into account in considering “the balance of fairness” between the parties.”

Mrs Justice Baron, on the balance of fairness test, permitted the applicant wife to proceed in England. The judge stated: “When this case commenced and I read the written material, I thought that Denmark was a distinctly possible venue, but, as the case unfolded and the oral evidence emerged, it became abundantly clear the balance of fairness including convenience between these parties made this jurisdiction the more potent destination”.

So, if you are overseas and feeling despondent, what about asserting yours or your spouse’s English domicile, and letting your spouse argue the balance of fairness test against you… in England?

Postscript.

Professor Rebecca Bailey Harris has today given the firm a talk entitled “The New EU Maintenance Regulation” ( Council Regulation (EC)no4/2009) which came into force on 18th June 2011 and which deals with jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

In so far as it relates to jurisdiction by virtue of the sole domicile of one party, as referred to above, there may be a problem obtaining a financial settlement if it also includes a maintenance element pursuant to the brand new Article 3 (d) (and the reference to nationality should be read as domicile for England) but as it is a new provision, there is no case law on the subject. The safer option might be to apply for a capital only type settlement with no element of maintenance contained within it.

This is a highly specialist area. I am alerting readers to it, but always, please, take legal advice.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(13)

  1. Domicile and jurisdiction « Untouched Smile | Care Your Child says:

    […] Domicile and jurisdiction is a post from: Marilyn Stowe Family Law and Divorce Blog […]

  2. Ivich says:

    I really enjoyed reading your blog! And I would really appreciate if you could give any information about following:

    In the country I live in, the concept of domicile is similar: a place where one person is living + intention to live there permanently. But, this two elements are not sufficient – it must be registered within the Ministry of Interior . Without that registration, no one can prove it`s domicile by any other prof and that person is, in practice, without domicile, even if he/she spent whole life at one place. And that persons can not obtain ID, vote, exercise rights to social care… So, my question is following: is it obligatory to register domicile in English law? Can absence of “official address” (or absence of official certificate on domicile) prevent someone (who is domestic national) from access to basic rights i.e. health care?

    Thank you very much for your time!

  3. Marilyn Stowe says:

    Ivich
    Thanks very much for writing in. Domicile is a peculiar English concept. It is not necessary to register domicile. A domicile of origin is acquired on birth and follows the father’s domicile unless there is no father in which case it is the mother.
    Best wishes
    Marilyn

  4. Clive Meadows says:

    I have lived in Asia for 22 years, not been resident in the UK for tax purposes for the same time.
    I am keen to avoid inheritance tax on my overseas assets.
    If i give up UK domicile would this help? How do i do it?
    What do I lose by giving up UK domicile?
    Do you have any references to help with these questions?
    Thank-you for your advice.

  5. Michael Boshell says:

    Hi there, I have just applied for a divorce in a UK court, but the petition has been rejected on the grounds of domicile. I am currently living in the UAE, and my wife is living in Spain. She was living with me in the UAE up until October 2011 when she decided to leave me and go back to Spain. My wife is Spanish and I am British. The district judge has said that I cannot be domiciled in the UK if I am living in the UAE. I have spoken to the court, and they have suggested that I send in a letter to the judge explaining my situation. My situation is that I am here on a 3 year contract with a 3 year visa. Once my contract is up and my visa expires, I have no right to be here. I have to leave the country. I have every intention of returning to the UK. The court had said that this might sway the judge. What do you think?

    Thanks a lot

    Mike Boshell

  6. Anna Santos says:

    Dear Sirs

    My husband and I are Spanish and married in Barcelona in 1999. In 2011 we moved to the UK and been living separeted over a year. We have two daughters that were born in Barcelona – Spain.

    We are not sure though if we can formalize divorce in Spain if the same is agreed by both parties or we have to do it in the UK where we both have our domicile.

    Can we apply jurisdiction in Spain although we now live in England but with uncertainty about the future residence if England or Spain in my case

    Thanks

    Anna

    • Andrew says:

      Whether you can get a divorce in Spain is a question of Spanish law. But if you can it will be recognised here as you are Spanish citizens.

  7. GARY says:

    Thank you very much for this article. I must congratulate you on a very precise and particularly informative article, far more so than the others I have read. It helped clarify the status of domicile with more substance (judges rulings etc) than the vagueness of other articles.

    I would be most grateful if you be able to express a comment on this general domicile issue.
    Recognising the complexity of establishing domicile, in the event of a UK marriage (wife is a Filipina) where husband and wife are 5 years separated and both currently living in the Philippines, could a judge refuse a divorce on domicile grounds for the UK national husband, thus rendering him unable to get divorced as the Philippines doesn’t formally recognise divorce?
    In other words accepting that the husband may not have the intention CURRENTLY to return to UK, is it possible that a judge may deem him domiciled in the Philippines?

    Thank you sincerely for any guidance/comment you may feel able to make on this point; much appreciated.
    GARY

  8. GARY says:

    Further to my last post, I feel I may have inadvertently and incorrectly implied that the husband is not considering returning to the UK at all.
    I should have said that the husband does not intend to return to the UK in the immediate future, but intends to in due course (as he has children and grandchildren in the UK).

  9. Pauline oflynn says:

    Under Irish Supreme Court ruling2015 the law stated that foreign divorce granted pre 1986 would not be recognised in Ireland unless one party was domiciled at the time proceedings were issued. I was married in Ireland in 1969, we then lived in uk until 1977 when we sold our house and returned to Ireland.The marriage broke down and the husband went back to uk in 1979. In 1982 he filed for divorce. He bought a house in uk 1984 and remarried in 1985. I remained in Ireland and I can now ask the Irish court to not recognise the divorce as I believe he wasn’t domiciled there in 1982. Does anyone have any experience of this?

  10. CC says:

    can you please help my partner was married and divcorced in the uk he was divorced in 1981 he returned to Ireland 5 years ago I am a widow we had planned to marry in march but have been refused on grounds of domicile he has a full uk pension which proves he worked there for over 40 years we are both pensioners we where told to get a affidavit which cost 100 euro sent in any paperwork that connected him to the uk what else can we do we are at a loss as we have never heard of this before there where no children to the maeeiage so he doesn’t know where his x wife is now please help

  11. CC says:

    as in above

  12. Anathi Bali says:

    Thandi was born in 1980 in South Africa. In 2003, she married Willem in Thailand while on vacation for two weeks. He was at the time domiciled in Australia. She moved to Australia and lived there for 5 years. She was planning on living there indefinitely. Whilst in England on business, Willem decides he wants to divorce Thandi. Thandi decides to stay in England for a while, after which she plans to go to South Africa to reside there permanently. Willem proceeds to file for divorce while still in England. He sends his application to the Cape Town high court claiming that Cape Town is the place Thandi would like to settle at indefinitely and as such it is the Cape Town high court that has the jurisdiction to hear the matter. In the alternative, he wants her original domicile to be revived. So now the legal question is: which court has jurisdiction to hear the matter?

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