Domicile, the place where a person has his home.
By the term 'domicile,' in its ordinary acceptation, is meant the place where a person lives or has his home. In this sense the place where a person has his actual residence, inhabitancy, or commorancy, is sometimes called his domicile. In a strict and legal sense, that is properly the domicile of a person where he has his true fixed permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning (animus revertendi).
Two things, then, must concur to constitute domicile: first, residence; and secondly, the intention of making it the home of the party. There must be the fact and intent; for, as Pothier has truly observed, a person cannot establish a domicile in a place except it be animo et facto.
From these considerations and rules the general conclusion may be deduced, that domicile is of three sorts: domicile by birth, domicile by choice, and domicile by operation of law. The first is the common case of the place of birth, domicilium originis; the second is that which is voluntarily acquired by a party, proprio Marte; the last is consequential, as that of the wife arising from marriage, Story's Confl. of Laws, s. 46. A good definition, as applied to an acquired domicile, is'that place in which a man has voluntarily fixed the habitation of himself and family, not for a mere special or temporary purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home, Lord v. Colvin, (1859) 4 Drew 366, per Kindersley, V.-C. But no definition is perhaps quite satisfactory; see Deicey's Conflict of Laws, p. 731.
If a person leaves his own country with the intention of remaining abroad till death, he, nevertheless, retains his domicile of origin until he fix his domicile in some particular place.
It is a clearly established rule that the validity of a will, disposing of personal estate, as regards form, is regulated by the law of the country in which the deceased was domiciled at the time of his death. The application of this rule to the case of British subjects dying abroad, and of foreigners dying in this country, gave rise to great inconvenience, to remove which two statutes were passed in 1861.
By the first of these, the (English) Wills Act,1861 (24 & 25 Vict. c. 114), it is enacted among other things that every will made out of the United Kingdom by a British subject (whatever may have been his domicile) shall, as regards personal estate, be held to be well executed, for the purpose of probate, and in Scotland of confirmation, if the same be made according to the law of the place where it was made, or the law of the place where the deceased was domiciled when it was made, or the laws then in force in that part of the dominions of the Crown where he had his domicile of origin. By the second statute, 24 & 25 Vict. c. 121, in cases where a convention shall have been entered into between the Crown and any foreign state that such statute shall be applicable to the subjects of the Crown and such foreign State, it is enacted that no British subject dying in such foreign State, and that no subject of such foreign state dying here, shall be deemed to have acquired a domicile in the place of his death unless he shall have resided there for one year; but no convention having been entered into with any foreign state, this enactment is inoperative.
The domicile of a wife is that of her husband, A.-G. of Alberta v. Cook, 1926 AC 444. For the English Courts to have jurisdiction to entertain a suit for dissolution of marriage the parties must be domiciled in England or Wales, though in the case of a suit for judicial separation mere residence is sufficient, Armytage v. Armytage, 1898 P. 178. A decree annulling a marriage on the ground of impotence is in effect a decree for dissolution and can only be pronounced by the courts of the domicile of the parties, Inverclyde v. Inverclyde, 1931 P. 29. The question whether a person is or is not domiciled in a foreign country is to be determined in accordance with English law as to domicile irrespective of the question whether that person has or has not acquired a domicile in the foreign country in the eyes of the law of that country (Re Anneslay, 1926 Ch 692). In matters coming before the English Courts and depending on foreign domicile, the lex domicilii in the widest sense must prima facie apply [Re Askew, (1930) 2 Ch 259]. See Dicey's Conflict of Laws; Westlake's Private International Law.
Domicile in ordinary legal partance domicile can be defined as an intention to reside in a particular territory which is not transient or for a limited period only. Kirandeep Kaur v. Regional Passport Office, AIR 2006 Del 2.
The term 'domicile' lends itself to illustrations but not to definition. Be that as it may, two constituent elements that are necessary by English Law for the existence of domicile are: (1) a residence of a particular kind, and (2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside for ever in the country where the residence has been taken up. It is also a well established proposition that a person may have no home but he cannot be without a domicile and the law may attribute to him a domicile in a country where in reality he has not. A person may be a vagrant as when he lives in a yacht or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicile in one particular territory. In order to make the rule that nobody can be without a domicile effective, the law assigns what is called a domicile of origin to every person at his birth. This prevails until a new domicile has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country, Central Bank of India v. Ram Narain, AIR 1955 SC 36: (1955) 1 SCR 697.
'Domicile' which is a private international law or conflict of laws concept identifies a person, in cases having a foreign element, with a territory subject to a single system of law, which is regarded as his personal law. A person is domiciled in the country in which he is considered to have his permanent home. His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it. No one can be without a domicile and no one can have two domiciles, Yogesh Bhardwaj v. State of Uttar Pradesh, (1990) 3 SCC 355: AIR 1999 SC 356 (360).
For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient, Louis DC Raedt v. Union of India, (1991) 3 SCC 554: AIR 1991 SC 1886 (1889).
By domicile is meant a permanent home. Domicile means the place which a person has fixed as a habitation of himself and his family not for a mere special and temporary purpose, but with a present intention of making it his permanent home. Domicile of choice is thus the result of a voluntary choice, Abdus Samad v. State of West Bengal, AIR 1973 SC 505 (506). [Constitution of India, Art. 5(c)]
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