Domicile: Categories of domicile: Domicile of choice - Intention to Reside Indefinitely
The requisite intention involves the contemplation of an unlimited period of residence. In this context ‘unlimited’ corresponds to ‘indefinite’.
The intention must be formed independently of external pressure. This does not mean that an individual has to be free of any practical constraints or limits upon his or her actions before such an intention can be formed.
The intention is a present one, which might be past or present relative to the enquiry. In some cases the relevant ‘present’ could be around the time that the individual acquired legal capacity.
A wide range of evidence has to be examined in evaluating intention. No single act or circumstance is determinative; all facts, including apparently trivial ones, have to be considered.
Factors vary in significance in different areas and within the factual context of any given case.
Intention does not depend on the individual’s wishes in respect of his or her domicile; it is not an intention to acquire a domicile but the intention to reside in a particular territory indefinitely.
Each case has to be decided on its facts. An individual sent to a territory on military or diplomatic service might subsequently decide to remain there indefinitely. A fugitive from justice could decide that what began as a flight from the law continues as a matter of choice. A refugee might decide to remain indefinitely in a new country. On the other hand a refugee or fugitive could simply be living in a country with no intention to remain there indefinitely.
All the facts have to be taken into account and should be considered together.
An important aspect of the existence, or otherwise, of the necessary intention is whether or not there is a contingency upon the occurrence of which the individual’s residence in a particular territory is anticipated to end. If there is an intention to return to the domicile of origin on a clearly foreseen and reasonably anticipated contingency, there is no intention to remain indefinitely. However, if the contingency is vague or sufficiently conditional, an intention to remain indefinitely could exist and a domicile of choice be acquired.
Statements of Intention
Statements of intention have to be considered in the context of all the evidence relevant to establishing an individual’s intentions. Mere statements are generally less important than actual conduct and may carry little weight if the statement does not correlate with actions taken.
The possibility of the existence of a natural bias, which the UK courts have indicated is likely to affect an individual’s mind when stating his or her intentions, cannot be overlooked. An individual might genuinely believe he or she is domiciled in a particular territory, but objective analysis of the facts could prove that belief to be wrong.
In a situation where testimony is unsupported by other evidence, it is necessary to consider in an objective manner the veracity and accuracy of the witness. If the testimony relates to an individual’s intentions, the reality of the intentions is a relevant point.
An individual’s motives should also be borne in mind when evaluating his or her statements relating to other relevant matters. Motives, such as avoidance of family or creditors, or tax mitigation or avoidance, can shed light on intended permanence.
A declaration of domicile may be disregarded if there is evidence that the declarant did not understand the relevant law and what their statement meant. This is not to say that evidential statements are to be ignored, merely that an explicit declaration, especially if it uses the term ‘domicile’ or is deliberately made about a person’s domicile, is only to be given weight where the individual making it can show that he or she understood the relevant law at the time the statement was made.