Domicile (law)
In law, domicile is the status or attribution of being a lawful permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after he has left it, if he has maintained sufficient links with that jurisdiction or has not displayed an intention to leave permanently.
Traditionally many common law jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws and would, for example, only recognize a divorce conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted.
Residency is the act of establishing or maintaining a residence in a given place. Residency is a concept which heavily affects the legal rights and responsibilities that are available to a person, including eligibility to vote, eligibility to stand for political office, eligibility to access government services, responsibility to pay taxes, and on and so forth.
Description
In early societies, there was little mobility but, as travel from one state to another developed, problems emerged: what should happen if different forms of marriage exist, if children became adults at different ages, etc.? One answer is that people must be given a connection to a legal jurisdiction, like a passport, that they carry with them wherever they go.Domicile is governed by lex domicilii, as opposed to lex patriae which depends upon nationality, which is the relationship between an individual and a country. Where the state and the country are co-extensive, the two may be the same. However:
Domicile is distinct from habitual residence where there is much less focus on future intent. Domicile is being supplanted by habitual residence in international conventions dealing with conflict of laws and other private law matters.
General principles
A person can have only one domicile at any given time, and the manner in which it could change was explained in 1869 in the House of Lords by Lord Westbury in Udny v Udny:Depending on a person's circumstances, it has historically been based upon the following principles:
| Type | How acquired |
| Domicile of origin |
|
| Domicile of choice | |
| Domicile of dependency |
Application
A person's domicile can have important personal consequences:There is tension between "domicile of origin" and "domicile of choice" which arises out of the fact that the latter can only be acquired through fulfilling both:
The ability to settle permanently has been held to arise only when one can become a permanent resident of the jurisdiction for immigration purposes. For example, suppose that A came from England to Canada on a visa to work for an employer in Ontario. While there, his son B is born. A likes Canada enough to have his status changed to that of landed immigrant. When B comes of age, he decides to leave Ontario for good, but dies before settling permanently elsewhere. B's domicile of origin is England, because of A's initial inability to settle permanently in Ontario. When A obtains permission to land, Ontario becomes his domicile of choice, and B automatically acquires it as a domicile of dependency. When B attains the age of majority, Ontario becomes his domicile of choice until he decides to leave for good, at which time it reverts to the domicile of origin. His new domicile of choice would only occur once he had been able to settle permanently in a new jurisdiction.
However, it is more difficult to abandon a domicile of choice than to acquire it. In the case of abandonment, both the above conditions must be fulfilled simultaneously as they are interrelated, whereas they are discrete in the latter case of acquisition.
The lack of intention to remain permanently can lead to unexpected results:
In extraterritorial jurisdiction
Certain anomalous jurisprudence occurred where persons lived abroad in cases relating to extraterritorial jurisdiction. The East India Company was declared to be equivalent to a foreign government, and persons engaged in service to it for an indefinite period were deemed to have acquired Anglo-Indian domicile. Persons in the service of the Crown, as well as independent traders, could not acquire this status. As a consequence of the Indian Mutiny, the Company ceased to function as a government upon the passage of the Government of India Act 1858, and such domicile was not capable of being acquired thereafter.Unsuccessful attempts were made to adapt that case law to other circumstances. In 1844, Stephen Lushington of the Consistory Court observed in dicta that, in the case of the Ottoman Empire, "every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the dominions of the Porte." Similar statements were expressed by the Court of Chancery in 1883 in rejecting the concept of an Anglo-Chinese domicile, where Chitty J of the Court of Chancery stated that "There is no authority that I am aware of in English law that an individual can become domiciled as a member of a community which is not the community possessing the supreme or sovereign territorial power." This was later endorsed by Judicial Committee of the Privy Council in 1888, in holding that "residence in a foreign country, without subjection to its municipal laws and customs, is therefore ineffectual to create a new domicile."
The reasoning behind such decisions was never satisfactorily explained, and the House of Lords later held in 1918 that these rulings built on dicta were wrongly decided and were thus swept aside. In holding that domicile in a foreign State could be properly acquired in such circumstances, Lord Finlay LC declared:
Commercial domicile and prize law
The rules governing civil domicile have on occasion been confused with those governing commercial domicile that appear in public international law which come into play in time of war, with emphasis on the area of prize law, where a merchant's status as an enemy or neutral come to be determined in the courts of a belligerent state. The two sets of rules are fundamentally different. The basic principles that apply are:The law in specific jurisdictions
The rules determining domicile in common law jurisdictions are based on case law in origin. Most jurisdictions have altered some aspects of the common law rules by statute, the details of which vary from one jurisdiction to another. The general framework of the common law rules has however survived in most jurisdictions and is in outline as follows:Canada
Until the passage of the Divorce Act in 1968, divorce could only be obtained in the province of domicile, which effectively required those domiciled in Quebec and Newfoundland to obtain divorce only through an Act of the Parliament of Canada. The 1968 Act required that "the domicile of a married woman shall be determined as if she were unmarried, and, if she is a minor, as if she had attained her majority", with one year's residence in the province where the divorce order was sought. The later 1986 Act removed the domicile requirement completely.When later court proceedings revealed complications arising from the impact of domicile on the validity of same-sex marriages solemnized in Canada, the Civil Marriage Act was amended in 2013 to provide for divorce to be available to nonresident spouses in the province where the marriage took place.
Outside of marriage and divorce, rules relating to domicile generally fall under provincial jurisdiction. The Civil Code of Quebec standardizes rules for that province, while Manitoba is the only common-law province to attempt to completely revise and simplify the rules within its scope. Other provinces have modified their rules as the need arose.
Ontario has modified the following rules relating to domicile:
India
A domicile of origin is the one with which a person is born. It can be changed as a result of adoption and marriage.Under the common law a married woman was deemed to have the same domicile as her husband, so the domicile of origin of the children of the marriage was the same as that of their father and the time of birth. Children gained their mother's domicile if their father was predeceased or they were born outside marriage. An orphan has the jurisdiction over the original domicile where he or she was found.
Every adult can change their domicile by leaving the jurisdiction of the prior domicile with an intention of permanently residing somewhere else. This is referred to as a domicile of choice. A domicile of choice can be abandoned if a new domicile of choice is acquired or if the domicile of origin revives.
A married woman can only get domicile and other caste certificates from her husband's jurisdiction.
A child's domicile is dependent and, therefore the same, as the adult on whom he or she is dependent.
United States
Each state of the United States is considered a separate sovereign within the U.S. federal system, and each therefore has its own laws on questions of marriage, inheritance, and liability for tort and contract actions.Persons who reside in the U.S. must have a state domicile for various purposes. For example, a person can always be sued in their state of domicile. Furthermore, in order for individual parties to invoke the diversity jurisdiction of a United States district court, all the plaintiffs must have a different state of domicile from all the defendants.
Recently, the United States Supreme Court case of Hertz Corp. v. Friend concluded that the "principal place of business refers to the place where corporations' high level officers direct, control and coordinate the corporations' activities." A corporation's state of incorporation and principal place of business each count for diversity jurisdiction.
United Kingdom
The United Kingdom contains three jurisdictions: England and Wales; Scotland; and Northern Ireland. All UK jurisdictions distinguish between domicile of origin, domicile of choice and domicile of dependence but in general only one place can be a person's domicile at any one time thus preventing the creation of differing simultaneous domiciles for different purposes; the three types of domicile can enable a voluntary change when a person reaches a relevant age. If a domicile of choice lapses and is not replaced the domicile of origin reasserts itself. The concept of domicile is not rooted in statute thus the basic matter of an individual's domicile is not decided by any single statute but rather by case law in combination with applicable international law and statutes following in accord.;England and Wales:
The Domicile and Matrimonial Proceedings Act 1973 abolished the rule that a married woman had the domicile of her husband, as well as reforming the rules dealing with the domicile of minors.
;Scotland:
The rules for persons under 16 for the particular purposes of some Scottish family law are dealt with in the Family Law Act 2006, but this does not by itself fix the domicile for general purposes.
;Northern Ireland:
The law in Northern Ireland is generally similar to England and Wales but with domestic statutes applying which are not inevitably coincident.
;For taxation purposes:
Income tax and inheritance tax are applied at first instance to those who are domiciled in the UK. Recent legislative reforms have changed the manner in which Her Majesty's Revenue and Customs applies the concept of domicile for such purposes:
In 2015, Her Majesty's Treasury proposed further changes to the deemed domicile rules, which went through two rounds of consultation. In its response in December 2016, the UK's government announced the following changes would form part of the next Finance Bill, effective on or after 6 April 2017, declaring that deemed domicile will extend to the following classes of persons:
Legislative changes were delayed because of the intervening 2017 general election, but are anticipated to be implemented in the autumn of 2017, with retrospective effect.
People's Republic of China
A domiciled individual is defined as one who, by reason of the individual’s permanent registered address, family, and/or economic interests, habitually resides in China. A PRC national with a Chinese passport or a domicile registration is likely to be deemed as domiciled in China–whether resident in China or not–and therefore attract liability for individual income tax on worldwide income.Political office
It is important in terms of politics, as in many jurisdictions candidates must maintain residency within the district in which they intend to run. Requirements vary by jurisdiction, and sometimes by the political office for which a person runs. The cutoff may be as little as a month or as much as several years. Once elected, the office-holder must remain resident in the appropriate district, or may usually be forced to resign.Canada
To run as a candidate for election to the House of Commons of Canada, a candidate must have established residency in Canada — however, a person does not need to have established residency in the specific district where they are running. In most elections, in fact, virtually all of the major political parties run at least a few paper candidates in districts where they do not have a strong organization or a viable local candidate; a paper candidate may be from almost anywhere in the country.As well, when a political party with representation in the House of Commons selects a new leader who is not a sitting Member of Parliament, it is common for a member of that party's caucus to resign his or her seat so that the leader can run in the resulting by-election. The leader may, at their own discretion, continue to represent that district for the duration of their career in politics, or may run in a district closer to their home in the next election. As of 2012, for instance, Stockwell Day continued to represent the same district in British Columbia to which he was elected in 2000 when he first entered the House of Commons as leader of the Canadian Alliance, even though he was a resident of Alberta at the time of his initial election. Conversely, Joe Clark was elected in a by-election in Nova Scotia on the very same date as Day, following his reelection to his second stint as leader of the Progressive Conservatives, but held that seat only until the 2000 election and then stood in the Alberta riding of Calgary Centre.
In still other cases, a politician may run in a district other than the one they live in for personal reasons — such as having an established power base in that area from a prior political office, or simply not wanting to get drawn into a nomination contest with an existing incumbent. For instance, Jack Layton represented the electoral district of Toronto—Danforth for the entirety of his term as a member of the House of Commons, even though his personal residence was in the nearby district of Trinity—Spadina. Trinity—Spadina was concurrently represented by Layton's wife, Olivia Chow, and both districts corresponded to the areas that Chow and Layton had previously represented on Toronto City Council.
However, a non-resident candidate may sometimes face accusations of being a parachute candidate, which may or may not compromise their ability to win the election depending on the circumstances. In recent federal elections, some non-resident candidates have won election while others have lost. A non-resident candidate who does win election is generally expected to establish a residence in or near the district soon afterward, although this is by public expectation rather than legal requirement.
To be eligible for appointment to the Senate, a person must officially reside in the province which they are being appointed to represent. However, this criterion has historically been interpreted quite liberally, with virtually any form of property holding — including primary residences, second residences, summer homes, rental or retail holdings or even lots of undeveloped land — having been deemed to meet the requirement, as long as the senator listed it as their primary residence on paper regardless of whether they actually resided there in any meaningful way. Again, however, controversy may result among the general public around the definition of residency — for instance, Senator Pamela Wallin faced some controversy in 2008 around whether she was truly a resident of Saskatchewan, although she does own property in the province. In 2013, however, a Senate committee launched a review, ordering all senators to provide documentation confirming their residency status following allegations of irregularities in some senators' housing expense claims, including those of Wallin, Patrick Brazeau, Mac Harb and Mike Duffy.
All provinces and territories have a similar requirement by which a person must be a resident of that province or territory to be eligible for election to the provincial or territorial legislative assembly. Depending on the province or territory, however, there may or may not be a legal requirement to be a resident of the specific district where one is standing as a candidate.
United States
As a general principle, in the United States residency for federal politicians is defined as the intent to return to the particular district or state they represent following their term in office. For example, the purchase or occupancy of a home in the DC metro area, for proximity to the Capitol and the Congressional offices, does not change an Iowa congressman's or congresswoman's legal residency in his or her state.Conversely, to be eligible for election to a state-level office, such as a state assembly or a governorship, a person must be resident within the state where they are running for office; however, states vary in whether or not an assembly candidate is required to reside in the specific district where they are running. In one noted recent case, Nevada Assembly candidate Andrew Martin's eligibility for office was called into question due to ambiguity regarding his residency status. Martin owned two properties, a condominium in the district where he was running for office and a house in a neighboring district, and his campaign was affected by conflicting claims about which property should be regarded as his primary residence. A judge ruled Martin ineligible to run on November 5, 2012, just one day before the election — but as the decision came too late for Clark County officials to reprint the ballots, Martin's name remained on the ballot and he won the election. Martin was allowed to take his seat in the legislature without a formal challenge being filed against him.
Rights of citizenship
Malaysia
The Malaysia My Second Home program is an international residency scheme enacted by the Government of Malaysia to allow foreigners to live in the country on a long-stay travel visa of up to 10 years. To qualify for the program, applicants must meet certain financial and medical criteria. Successful applicants are then entitled to enter and leave the country on a largely unrestricted basis, and also benefit from other incentives aimed at making their stay in Malaysia more convenient. Certain restrictions may apply.Malta
In Malta, residency has been interpreted to include not only the physical presence in the country, but includes and allows periodic absence from the country. A person who is temporarily absent from Malta because of work, study, illness or mission, must not and cannot be considered as not resident in Malta. A person who goes abroad to study or for work purposes is still 'directly and continuously concerned' with the political activity of the country of residence and therefore has the right to vote.United States
Voting by the general public is also defined by residency, with most people being prohibited from doing so except at the precinct for their primary residence. There are sometimes exceptions for this, such as so that expatriates can vote in the country where they maintain their original citizenship.The Servicemembers Civil Relief Act provides specific protections to military service members who are domiciled outside their home states.
It is also important in terms of other law, such as requirements that vehicles and other things which must be licensed in the place which the owner resides. There is a grace period normally around 30 days for persons moving into the area.
In addition to such responsibilities, certain benefits also come from residency.
Discounts on tuition usually are allowed for students who are resident within the state or province for a year or more, if it is a public university or the like. Other forms of public assistance such as welfare may also have a waiting period, to prevent abuse.
Residency in any given U.S. state is recognized by the United States Constitution as "citizenship" of that state, a somewhat unusual arrangement known as "dual citizenship".
Latvia
as participant of Schengen Agreement gives permission for citizens and those with a residency permit to travel to any other agreement participant. However there is a difference between a citizen and a holder of a residence permit in Latvia.;Differences:
A residence permit holder is not entitled to hold governmental office or to vote in any elections. The person cannot join the army or a police force. Anyone who wishes to gain citizenship is allowed to do so after 5 years living in Latvia and passing language and history examinations.