Domicile: Categories of domicile: Domicile of dependence - Position of children
This section deals with the common law position, which has been modified by statute (refer to RDRM22200).
Broadly, a child is regarded as ‘legitimate’ if its parents were legally married at the time of its birth.
A child born outside of wedlock is ‘illegitimate’ at its birth. Such a child may later be ‘legitimated’ if his mother and father marry.
Bear in mind that the terms ‘legitimate’ and ‘illegitimate’ are legal ones and are used here in this context. However, you should be very sensitive in using them in discussions with individuals, as in some circumstances they may be perceived as pejorative.
The position in Scotland is different. The Family Law (Scotland) Act 2006 introduced changes in the use of legitimacy as a factor in determining domicile in Scots law (refer to RDRM22120)
A legitimate child’s domicile changes with the domicile of its father. Therefore any change in the domicile of his father after the child’s birth will be passed to the child as a domicile of dependency. This principle is generally accepted, but it should be noted that it has not been applied in every case.
In the case of the father’s death the child’s domicile changes with that of its mother unless:
- there is any question of fraudulent intent to defeat the child’s rights through such a change, or
- The child does not change his residence and go to live with her.
The domicile of origin of a child born after its father’s death is that of its mother’s, and its domicile of dependence changes with the domicile of its mother.
In the event of the death of both parents refer to the paragraph on orphans below.
The domicile of an illegitimate child changes with that of its mother.
A child born outside marriage takes the domicile of its father as a domicile of dependence from the date of its parents’ marriage.
A child whose parents are dead may later be adopted; in which case his domicile will follow that of his adoptive father or mother (refer to RDRM22110).
An orphaned child who is not adopted probably cannot change any domicile (of dependence) he held at the date of its parent’s death until he reaches the age of legal capacity.