Domicile: Introduction and Background: Underlying principles of domicile
Domicile cannot be defined precisely, but the concept rests on various basic principles.
- Every individual must have a domicile at all times. The law ascribes a domicile to those individuals it regards as lacking capacity to choose one.
- An individual cannot have more than one domicile at the same time for the same purpose. refer also to the note below)
- An existing domicile is presumed to continue until it is proven that a new domicile has been acquired.
Court’s determination of domicile
Courts in the UK generally decide by reference to the appropriate municipal law whether or not specific facts constitute domicile. It is therefore possible for an English court to decide that an individual is domiciled in the State of New York when a court in New York would hold that person to be domiciled elsewhere.
In the UK domicile is determined according to the English, Scottish or Northern Irish concept of domicile.
Under the ‘single conception theory’ of domicile, which is usually held to apply in the UK, the criteria by which domicile is ascertained remain constant regardless of the nature of the issue. This theory leads to the conclusion that an individual who is domiciled in Scotland for the purposes of succession to property is domiciled in Scotland for the purposes of ascertaining liability to tax in the UK.
Change of domicile
Although domicile may change, there is a presumption in favour of the continuation of an existing domicile.
It is important to remember that the burden of proving a change of domicile rests with the party that asserts the change. Refer also to RDRM23030
In some cases the question of whether or not there has been a change in an individual’s domicile will depend upon the domicile of another person. Subsidiary issues of domicile might need to be addressed in such cases in order to establish where the burden of proof in the principal matter lies.
The standard of proof is the civil one, on the balance of probabilities. The quality of the evidence required varies with the nature of the change that is being asserted. The difficulty of discharging the burden varies accordingly. Where the acquisition of a domicile of choice is at issue, it is generally held that the difficulty is greatest in relation to the placing into abeyance of a domicile of origin and least for the loss of a domicile of dependence.
The principles provide the legal context within which each case must be examined, but every question of domicile is essentially a question of fact.
Generally an individual cannot have more than one domicile at the same time for the same purpose. However it is, in certain circumstances, possible for an individual domiciled in one of the law territories of a federal state to have a domicile in that territory for most purposes but a federal domicile for specific ones.
An example of this arises from the Australian federal legislation relating to divorce and matrimonial proceedings, the Australian Family Law Act 1975. In such situations an individual can have two concurrent domiciles; for example, an Australian one for divorce purposes and a New South Wales one more generally.