The domicile of a person is sometimes relevant to the question of whether a particular court has the jurisdiction to deal with a person’s divorce.
That is certainly the case when considering divorce proceedings being brought in England and Wales or in other contracting states of the Brussels II Convention (see Brussels II).
Domicile (as with habitual residence) can be relevant to a person’s tax status in England and other countries. It is therefore important to have an eye on the possible tax consequences of suggesting a person’s domicile is in one country as opposed to another.
In English law, the concept of domicile is quite difficult to define. Domicile is more a state of intention than a state of residence. It is possible, for example, for a person to have lived in Canada for 40 years but to remain domiciled in England. Fundamentally, under English law, domicile is where a person considers their ultimate home to be.
Under English law, there are two types of domicile applicable to adults: domicile of origin and domicile of choice. At birth a child acquires his or her domicile of origin. That domicile is the domicile of the child’s father if the child is born within a marriage and, if not, the child acquires the domicile of the mother.
Therefore, if a child was born to an English domiciled father within marriage or to an English domiciled mother outside marriage, a domicile of origin in England would have been established.
Domicile of origin can be changed to a domicile of choice. An adult acquires a domicile of choice by living in a country (other than a country of the individual’s domicile of origin) with the intention of continuing to reside there indefinitely.
In the example of a person having lived in Canada for 40 years, that person could have acquired a domicile of choice in Canada even if they are born with a domicile of origin in England.
However, if despite having lived in Canada for 40 years the person still considered their home to be England and intended to return to England one day, this may be enough to ensure that the Canadian domicile of choice is not acquired and the English domicile of origin is retained.
However, if the person has indicated in any documentation or otherwise that they intend Canada to be their domicile of choice, this would be taken as an indication of them having abandoned England as their domicile of origin. The only way the person could then reinstate England as their domicile of origin and choice would be to move back to England to reside.
The basic proposition under English law is that it is not possible to have more than one country of domicile.