Domicile: Categories of domicile: Domicile of dependence
This is sometimes called domicile of dependency or derived domicile.
Domicile of dependence is the domicile that the law ascribes to an individual because of that individual’s lack of legal capacity and legal dependence upon another person.
The possibility of being ascribed a domicile of dependence by the common law obviously raises questions of whether or not the individual has legal capacity.
In order to have legal capacity an individual must have reached a specific age (refer to RDRM22020), which depends upon the relevant system of municipal law, and possess the necessary mental capacity.
Dependent persons fall into three classes:
- Children (refer to RDRM22210)
- Married women, prior to 1 January 1974 (refer to RDRM22240)
- Individuals of any age who lack sufficient mental capacity, and so are not regarded as having full legal capacity (refer to RDRM22260).
In this guidance the word ‘children’ is used to cover Scottish law ‘pupils’ and ‘minors’, ‘infants’ for English common law purposes, and individuals who are below the age of legal capacity for acquiring an independent domicile of choice specified in relevant legislation.
For children there are issues of legitimacy and legitimation; refer to RDRM22210.
Refer to RDRM22020 for details about legal age and the age of legal capacity.
With effect from 1 January 1974 the common law position was altered by Section 4 of the Domicile and Matrimonial Proceedings Act (DMPA) 1973 (refer to RDRM22250).
Issues of the essential validity of marriage, which could affect children of the relationship, and divorce might arise for women married prior to 1 January 1974.
The law relating to individuals lacking mental capacity is not entirely clear, particularly where the individual has become incapacitated or is so from time to time.
These situations involve very complex areas of law, and may potentially raise quite sensitive and distressing questions about an individual’s early childhood and family circumstances. Remember it is possible that the individual might not be aware of the true facts and circumstances until they look at their birth and other family records.
You should seek advice from Specialist Personal Tax, PTI Advisory Residence and Domicile Technical Team RDRM40000 if you come across such situations in the course of any status investigation. You may also wish to advise the individual to seek independent professional advice on their domicile status if their personal circumstances are complex.