Domicile: Enquiries into domicile status: Period of independent domicile
During this period an individual has been capable of acquiring and losing an independent domicile of choice.
In the UK the date on which an individual acquires legal capacity for domicile purposes is currently his or her sixteenth birthday, although it was different in the past (refer to RDRM22020).
A domicile of choice is acquired by the combination of physical presence in a territory as an actual inhabitant of it, ‘residence’, and the intention to remain there permanently or indefinitely, ‘intention’.
A domicile of choice is lost by the cessation of both ‘residence’ and ‘intention’. The existence, or otherwise, of the relevant factors is a question of fact, which is to be decided by reference to the evidence. Refer to RDRM22300.
Reviewing the ‘Residence’ Element
If an individual who has legal capacity lives in a territory and intends to remain there indefinitely, his or her operative domicile will be that territory.
The residence element should not cause difficulties in most cases. In the absence of an intention to remain indefinitely (and such an intention will not be present if an individual is living somewhere for a limited period) the question of residence becomes irrelevant.
If an individual is an actual inhabitant of more than one territory, it is necessary to establish the territory in which the individual’s chief residence lies, a question that is inextricably linked with his or her background and intentions.
Reviewing the ‘Intention’ Element
An individual’s intentions lie at the heart of any consideration of his or her independent domicile. The essential point to remember is that an individual will almost certainly be regarded as intending to remain in a territory indefinitely if there is no clearly foreseen and reasonably anticipated contingency upon the occurrence of which he or she will leave it. This contingency has to be definite in nature and not doubtful. It has to be more than a vague hope, and there should be a sufficiently substantial possibility of its occurrence to justify regarding it as such.
The nature of a contingency and the likelihood of its occurrence must be evaluated in the context of the individual’s circumstances.
There does not need to be a conscious intention to acquire a domicile of choice in a territory. The acquisition of such a domicile happens when an individual has the combination of residence and intention to remain in that territory.
Clearly foreseen and reasonably anticipated contingencies can become vague possibilities, while the latter can become the former. An individual will become domiciled in a territory at the point when the contingency upon which his or her lack of intention to remain has depended becomes sufficiently vague.
In practice HMRC expects long-term residents of the UK to be able to demonstrate the existence of an appropriate contingency. Where an individual remains in the UK beyond the occurrence of the stated contingency, HMRC will require very clear evidence demonstrating that a future contingency is anything more than a vague possibility.
Change of intention without change of residence
It is possible for an individual to have acquired a domicile of choice in a territory towards which he or she has subsequently lost the intention to remain indefinitely, for example because they have later married, re-married, suffered ill health or come into considerable wealth. A lack of intention to remain at present does not, in itself, prove a lack of such intention in the past.
Where an individual is living in the UK merely because he or she is working here for a limited period, at the end of which he or she intends to return to his or her homeland, the individual will not become domiciled within the UK while he or she is working here unless it becomes clear that his or her intentions have changed and that the individual intends to remain here indefinitely.
If the period during which an individual anticipates remaining in the UK is limited by an event the timing of which is imprecise, such as ‘making a fortune in business’, the nature of such a contingency might be sufficiently vague to lead to the conclusion that the individual has acquired a domicile of choice here.