Posted: 23/07/2018
Domicile is an unusual English legal concept. It describes the country that you consider to be your home or the country where you have your permanent home. It is not the same as nationality, citizenship or residence.
You can only have one domicile at a time. Everyone has a ‘domicile of origin’, which they inherit from their father. It is possible to acquire a ‘domicile of choice’, which replaces the domicile of origin. When deciding whether you have indeed acquired a domicile of choice in England and Wales, you need to establish an intention to make your home in England and Wales permanently or indefinitely.
The reason that domicile is important in certain cases is because it can help to establish divorce jurisdiction. In order to start divorce proceedings in England and Wales, the petitioner has to establish that one or both of the parties are habitually resident in England and Wales or they can rely on domicile.
The issue of domicile was recently considered by the Court of Appeal in Kelly v Pyres [2018] EWCA Civ 1368.
The husband was born in India but had become a British citizen when he was 13. The wife was born in England to Irish parents but had moved to Ireland as a baby and attended an Irish university. She spent a year in Italy under the Erasmus scheme. In 1995 the wife moved to England to study for a masters and obtained a British passport. She stayed in England for 18 months (the longest continuous period ever spent in England). In 1997, the wife moved to Brussels where she met the husband who was working there. In 2001 the parties moved to London and lived in the husband’s property for eleven months. In 2002 the wife started to work in Albania. In 2005 the parties married in Italy where they signed a prenuptial agreement prepared by the husband describing them both as farmers and ‘British’ subjects and stating that they were both habitually resident and domiciled in Italy. In 2006, the parties’ first child was born in England. The husband then moved to Bosnia for three years, while the wife remained in Albania. In 2008 the second child was born in Italy and in 2009, the wife moved to Bosnia where the family lived for over seven years. The children had British passports but were habitually resident in Bosnia.
Domicile of origin: the wife, born to an Irish father, had a domicile of origin in Ireland. The husband, born to an Indian father, had a domicile of origin in India.
Domicile of choice: the husband claimed that he had a domicile of choice in Bosnia. When the wife started divorce proceedings in England, she claimed that she had an English domicile and she used this to establish jurisdiction. The husband challenged this.
The judge at first instance held that the wife had acquired a domicile of choice in England. He said that she had developed this intention between 1995 and 2000.
The husband appealed claiming that domicile of choice could only be acquired if the intention to remain permanently or indefinitely in that country was established whilst a person was resident there. The Court of Appeal allowed his appeal.
The Court of Appeal found that the judge at first instance had made an error of law. The only way that the wife could have established a domicile of choice was by demonstrating both that she resided in England and that she intended to reside there permanently. As a matter of law, domicile of choice could not have been acquired between 1997, when the wife ceased to live in England, and 2000.
A person could acquire a domicile of choice by a combination of residence and an intention to permanently reside. Whilst the residence did not have to be long (it could be a few days), it had to be with the intention of permanent stay or indefinite residence. Residence without intention or intention without residence would not do to establish a domicile of choice.
The Court of Appeal found that an individual must have a singular and distinctive relationship with the country of domicile of choice and an intention to end their days there. It must be their ‘ultimate home’.
The burden of proof was on the wife to demonstrate that she had lost her domicile of origin. As the standard of proof was the ordinary civil standard, clear evidence was needed.
Many things were considered by the judge at first instance including the parties’ emotional attachments, where they received their post, renovations on a London property, storage arrangements, medical treatment, family connections, where they chose to holiday, bank accounts, pensions, taxes and national insurance payments.
However, the Court of Appeal found that the wife’s evidence did not demonstrate that England was her ultimate home. It was a financial base and somewhere she sought medical care. She had demonstrated no personal connection to England.
The Court of Appeal’s judgment is a reminder of the difficulty of asserting a domicile of choice. In this case, the wife appeared to be a true European, travelling the world for work. The sub-text to the case is that the courts are reluctant to allow parties to ‘forum shop’, asserting a domicile of choice when it could not be established. It also demonstrates that the issue of domicile is finely balanced and fact-specific.
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