Conflict of Law Group 2
Conflict of laws (or private international law or international private law as it is sometimes known) is a set of procedural rule that determines which legal system and which jurisdiction apply to a given dispute. The rules under conflict of laws apply when a legal dispute has a “foreign” element such as a contract agreed to parties in different countries.
There are some certain concepts which are important or are regarded as a determinative factor in the conflict of laws. Such concepts include; domicile and nationality.
The developments of technology and mobility from one state or another brought the emergence of problems. This is because in the process of moving about, an individual has to determine which law applies to him, his marriage, his business transactions, etc.
The development of passports came about in a bid to solve this problem. Passports act as a connection to a legal jurisdiction, which people carry about wherever they go.
DOMICILE AND NATIONALITY
Domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently (that is to say, if that person has not yet moved to a different state, or has not yet formed an intention to remain there indefinitely). LORD CHELMFORD in WAICKER V HUME in defining domicile said,
“That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special or temporary purpose but with a present intention of making it his permanent home...”
The concept of domicile is not uniform throughout the world. To civil lawyers in Europe who do not apply common law, it means habitual residence. While at common law it is regarded as equivalent to a person’s permanent home
Domicile is what is termed in private international law as a “connecting factor” which connects an individual with a system of law for the purposes of determining a range of matters, principally related to his status or property. For example, in the circumstances below, domicile is said to be a “connecting factor”
.Legal capacity to marry
.Personal capacity to make a will
.Formal validity of a will
.Jurisdiction of the court in proceedings for divorce
Nationality on the other hand is a relationship between an individual and a country (to which a person owes his allegiance to). Nationality normally confers some protection of the individual by the state and some obligations on the individual towards the state. Where the state and country is federated into separate legal systems the two (domicile and nationality) will be different. But where the country is federated into separate legal systems the two will be different.
NATIONALITY AND DOMICILE CONTRASTED
Domicile can be distinguished from nationality in that one can have a dual nationality but not more than one domicile at a time as it was held in the case of ODIASE V ODIASE.
Every person as well must have a domicile as was seen in the case of UDNY V UDNY. Unlike nationality no person can be without a domicile even if stateless.
Nationality represents a man’s political status, by virtue of which he owes allegiance to some particular country; domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined. Nationality depends, apart from naturalisation, on the place of birth or on parentage; domicile is constituted by residence in a particular country with the intention of residing there permanently. It follows that a man may be a national of one country but domiciled in another.
TYPES OF DOMICILE
The rules for determining domicile in common law jurisdictions are based on case law in origin. However, as time went on, different jurisdictions altered some aspects of the common law rules by statute, details of which may vary from one jurisdiction to another. The common law rules have however survived in most jurisdictions and are outlined below.
1. DOMICILE OF ORIGIN
Dicey states the common law rule as thus;
“Every person receives at birth a domicile of origin,
a) A legitimate child born during the lifetime of his father has his domicile of origin in the jurisdiction in which his father was domiciled at the time of his birth.
b) A legitimate child not born during the lifetime of his father or an illegitimate child has his domicile of origin in the jurisdiction in which his mother was domiciled at the time of his birth.
c) A foundling has his domicile of origin in the jurisdiction in which he was found.
A domicile of origin is attributed by law to every person at birth. There is no necessary connection between the place of birth and the domicile of origin.
A domicile of origin is more tenacious than a domicile of choice. It is more difficult to prove that it has been abandoned. The point of domicile of origin ensures that everyone has one domicile and only one domicile at all times. If a person leaves the country of his domicile of origin, intending never to return to it, he continues to be domiciled there until he acquires a domicile of choice in another country. But if a person leaves the country of his domicile of choice, intending to never return to it, he ceases to be domiciled in that country unless and until he acquires a new domicile of choice, his domicile of origin revives.
The domicile of origin acts as a fall-back; whenever there is no other domicile, it comes to fill the gap.
In BELL V KENNEDY, per Lord Westbury- “The domicile of origin adheres until a new domicile is acquired.”
2. DOMICILE OF CHOICE
Every independent person can acquire a domicile of choice by the jurisdiction of residence and intention of permanent or indefinite residence but not otherwise. According to the DOMICILE AND MATRIMONIAL PROCEEDINGS ACT, every person in the world who is over the age of sixteen and is not mentally incapable is able to acquire a domicile of choice by residing in one country with the present intention of making it his permanent home. Thus there are two important requirements, namely; fact and intention. They are normally referred to as factum and animus. Factum is fact or residence, while animus is intention. A person can therefore abandon a domicile of choice in a jurisdiction by ceasing to reside there (fact) and by ceasing to reside there either permanently or indefinitely (intention). That is to say leaving “animus non revertendi”
Residence for the purpose of domicile has a very wide meaning and its function is to a great extent evidential in character thus, no particular length of residence is required. But long residence in a country will a raise the inference that a person intended to remain there and this may be so strong as to be impossible to rebut. However, long period of absence does not necessarily destroy a domicile of choice and may not do so even if there is indecision about a possible return. Thus in RE LLOYDS EVANS, a Belgian domiciliary who had fled to England died before he had decided to return to Belgium or emigrate to Australia. He was held to be domiciled in Belgium.
The requirement of intent is more exacting and important in domicile. In WINANS V ATTORNEY GENERAL, Winans had lived a remarkable life in the manner of the heroes of the Victorian age. Born in Baltimore, he spent much of his life in Europe and lived in England for the last 37 years of his life. He built railways in Russia and helped that country against England in the Crimean war by making gunboats. He had an obsession to develop his Baltimore property into a seaport, equip it with ships of his own special design and capture the world’s carrying trade for the United States at the same time putting an end to the Rule Brittanica. His hatred of Britain eventually convinced the House of Lords that despite his long residence there, he lacked the intention to acquire a domicile in England. A similar decision was held in the case of RAMSAY V LIVERPOOL ROYAL INFIRMARY.
However it has been submitted that the two cases are extremely unsatisfactory as they put too much emphasis on the desires, however unrealistic, of the person in question rather than what he proposed to do.
In contrast to the case above, the case of WHITE V TENANT, where a family were moving house and this involved crossing a state line. Having put their belongings in the new house the family returned to their old state to spend the night with family as the new house was not yet ready to inhabit. When the father died during the night the court decided that he died domiciled in his new state not the old one.
Thus, once it can be established that the intention to make the country of residence the permanent home exists, the fact that the residence was not freely chosen and could be ended by compulsory relation is irrelevant.
3. DOMICILE OF DEPENDENCE
This is also known as domicile by operation of law. This type of domicile concerns dependent persons. The domicile of a dependent person is the same as and changes (if at all) with the domicile of the person on whom he is, as regards his domicile, legally dependent. Until he reaches the age of maturity (which maybe the age of sixteen), a legitimate child’s domicile depends on and changes with the domicile unless, both parents being alive, the child has his home with his mother and no home with his father. An illegitimate child or a legitimate child whose parents are both living but who lives wholly with his mother has a dependent domicile coincident to that of his mother’s current domicile. A child whose father is dead takes his domicile of dependence from his mother however, unless he has a home with her, his domicile of dependence does not automatically change with hers. A child whose parents are dead should be domiciled where the person on whom he is dependent is domiciled (however there is no authority for this). At birth, a child receives two domiciles, origin and dependence, which are initially, in the vast majority of cases, the same. The domicile of origin will be overlaid by the domicile of dependence. While the domicile of origin remains constant throughout life, the domicile of dependency changes with the domicile of the person on whom the child is domiciliary dependent. The idea is that, as far as possible, there should be unity of domicile between the child and its parents.
Until 1 January 1974, there were three categories of dependent persons; children, married women and mentally disordered persons. Married women ceased to be dependent persons on 1 January 1974 by virtue of section 1(1) of Domicile and Matrimonial proceedings act 1973. This act however, did not change the position of women married before this date because the act was not retroactive.
Mentally Disordered Persons
A mentally disordered person cannot acquire a domicile of choice; he retains the domicile he had when he began to be legally treated as such. However, if he was born mentally disordered or he becomes mentally disordered while a dependent child, his domicile is determined so long as he remains mentally disordered, as if he continued to be a dependent child.
DOMICILE AND CATEGORY OF PERSONS
A prisoner normally retains his domicile. But he can form an intention to reside permanently or indefinitely: in which case he acquires a domicile there.
.Persons liable to deportation
Such a person’s residence will be precarious and so he is unlikely to be able to form an intention to remain. But if he forms the necessary intention he acquires the domicile of choice.
Once a person has acquired a domicile of choice he does not lose it merely because a deportation order has been made against him. He loses it only when he is actually deported.
.Refugees and fugitives
A person who leaves a country as a political refugee, as a fugitive from criminal justice, or in order to evade his creditors, has a special reason for leaving it, but has no special motive for entering another country nor is his residence in any other country in any sense enforced. If the fugitive intends to abandon his domicile in the first country, the acquisition of a new domicile in the second country will be readily assumed.
If a political refugee intends to return to the country from which he fled as soon as the political situation changes, he retains his domicile there unless the desired political change is so improbable that his intention is discounted and treated merely as an exile’s longing for his native land; but if his intention is not to return to that country even when the political situation has changed, he can acquire a domicile of choice in the country to which he has fled.
In the case of a fugitive from criminal justice, the intention to abandon his domicile in the country from which he has fled will be readily assumed, unless perhaps the punishment which he seeks to escape is trivial, or by the laws of that country a relatively short period of prescription bars liability to punishment. Similarly, a person who leaves a country to escape his creditors may lose his domicile there; but if he intends to return as soon as he has paid or otherwise got rid of his debts, there is no change of domicile.
It has been objected that person who resides in a country for the sake of his health does not acquire a domicile. This is because;
a) The residence has been taken up for a special motive;
b) It may not be freely chosen.
These factors make it improbable that a domicile has been acquired. If someone goes to a country for treatment, he clearly does not acquire a domicile there. But where he settles in a new country because he believes he will enjoy better health there may well intend to live there permanently.
.Members of the armed forces
Unless a person intends to change his domicile, he does not acquire a domicile by entering the armed forces or lose the one he has upon his entering.
If a person goes to a country merely to work, he retains his domicile and does not acquire a domicile of choice there. Except where he does not only go there to work, but also to settle in it, he acquires a domicile of choice. Thus, where a barrister with an English domicile of origin was appointed Chief Justice of Ceylon, and he went to Ceylon intending to stay there until he earned his pension, he retained his English domicile.
Like every other case, where diplomats do not form the intention of settling in the country to which they have been accredited they do not acquire a domicile there. But if they do form an intention to reside there permanently, they acquire a domicile of choice.
Domicile is the most significant connecting factor in conflict of laws. It has a dominating role in family and matrimonial property law and a role in other areas such as capacity of persons to make contracts. It plays a part also in the law of taxation.
Domicile is ‘an idea of law’
Domicile of origin cannot be lost as such. Everyone is born with a domicile of origin, which remains (if only in abeyance). Even when a domicile of choice is acquired, the domicile of origin will remain as a resource to fill up any gap when a domicile of choice is abandoned.
A domicile of choice can be abandoned by a person when he or she ceases to reside in a country and ceases to intend to reside there permanently or indefinitely. When a domicile of choice is abandoned either a new domicile of choice is acquired, or the domicile of origin revives by operation of law.
It should be noted that the most important factor in acquiring a domicile of choice is intention (animus). The act of moving may occur but most times it does not necessarily mean that the person intends to move.
.Hong Kong law reform commission report
.Conflicts of law, Raymond Smith (1993)
.Google search engine
.Nottebohm case ( Liechtenstein v Guatemala)
 (1885) ALL ER 824
 (1965)NNLR 196 similarly held in the INLAND REVENUE COMMISSIONER V BULLOCK (1976) 1 WLR 1178 at1184
 (1869) L.R 1 S.C & D 117-441 also MARK V MARK
 (1868) L.R1 SC & DIV 307
 (1947) CH 695C/F RE FLYNN(1968) 1 ALL ER 49
 (1910)AC 27
 (1930) AC 588
 1888 31B W VA 790
 According to section 3(1) Domicile and matrimonial proceedings act 1973
 Raymond Smith in Conflicts of Law(1993)
 Cruh v Cruh(1945) All ER 545
 Moynihan v Moynihan(Nos 1 & 2 ) (1997) 1 FLR59-where it was held that M, who had left the UK to avoid arrest on serious fraud charges, had at his death acquired a domicile of choice in the Philippines, where he had lived for 20 years, built up a thriving business, acquired properties, married and had children.
 A.G v Rowe (1862) 1 H & C 31
 Bell v Kennedy(supra)