INTRODUCTION

Understanding the concept of domicile is crucial for navigating the complexities of conflict of
laws. Domicile is a key concept in law that affects where and how legal issues are resolved for a
person. This assignment starts by exploring the tests used to determine if someone has chosen a
new domicile. It then looks at what happens when a person does not successfully acquire a
domicile of choice, leading to the continuation of their original domicile. Finally, using the case
of Udny v Udny, the assignment explains the different types of domicile: origin, choice, and
dependence. Through these steps, we will see how domicile influences various legal matters.
Every person in the World who is over the age of 16,20 and is not mentally incapable, is
regarded by English law as able to acquire a domicile of choice by residing in a country with the
present intention of making it his permanent home. There are, thus, two requirements – the fact
of residence (factum) and the intention to reside (animus). 1
Test for Acquiring Domicile of Choice
To acquire a domicile of choice, a person must satisfy two key elements: factum and animus
Factum (Actual Residence)
Residence, also referred to as factum, in the new homeland is a question of fact. It was defined in
IRC v Duchess of Portland (1982)2 as ‘physical presence in that country as an inhabitant of it’.
So, residence is more than mere physical presence and, therefore, does not cover the situation
where, for example, presence in a particular country is for the purpose of holidaymaking. The
length of residence in itself is not crucial, provided that the necessary intention exists. For
instance, in Re Flynn (1968), 3where the propositus (that is, the person whose domicile is in
question) had only spent limited periods of time in Jamaica, where he was in the process of
building a house, Magarey J held that, whilst his ‘work might continue to take him to many parts
of the world for long periods…Jamaica had become his center of gravity’ .Accordingly, he had
acquired a Jamaican domicile of choice.4
Animus (Intention to Remain):
The second element which must be satisfied is that the propositus must have the intention, also
referred to as animus, to reside in the new homeland permanently or indefinitely.5 According to
Udny v Udny (1869), residence for a limited period of time or for a particular purpose does not
satisfy the necessary intention to acquire a domicile of choice. Similarly, an intention conditional
upon the occurrence of an act that may or may not take place will not suffice, as may be

1
J.G Collier, Conflict of Laws 3rd ed
2
[ 1982] Ch 314.
3
[1968] 1 WLR 103
4
Ibid..,
5
Abla Mayss, Pinciples of Conflict of Laws (3rd ed Cavendish Publishing Limited 1994)
illustrated in Cramer v Cramer(1987). 6In this case, a married woman with a French domicile
of origin had a relationship with a married Englishman.
They decided to marry as soon as they were able to obtain a divorce from their respective
spouses. In 1985, she was sent by her French employers on a one year’s paid detachment with a
company in England. Soon after arriving in England with her two younger children, she
petitioned for divorce. Her husband argued, however, that the English court lacked jurisdiction,
on the ground that she had not acquired an English domicile of choice since she had not yet
disposed of her ties in France; that is, she had not terminated her contract of employment, not
resolved certain property matters, nor had she resolved the matter of the children’s schooling.
The Court of Appeal held that The correct approach to determine whether a domicile of choice
had been acquired was whether the court was satisfied that there was a clear and settled intention
to reside in England indefinitely, and not whether there was a reciprocated desire to marry a
British national as soon as possible and live in England.7 On the facts, the wife’s intention to
change her domicile had not yet crystallized into a certainty, since it was conditional upon her
being able to marry her friend and also upon their relationship continuing on a permanent basis.
Had she intended to live in England come what may, she would have satisfied the requirement of
intention.8
Based on the case law used above, it would appear that the test for determining whether a person
has acquired domicile of choice or not, completely depends on satisfying two important key
elements which are Factum (Actual Residence) and Animus (Intention to Remain).

(b) Describe what happens when it has been established that a person did not acquire a Domicile
of choice?
When it has been established that a person did not acquire a domicile of choice, their original
domicile (domicile of origin) is presumed to continue. This principle is rooted in the
understanding that a domicile of origin is more enduring than a domicile of choice. Strong
evidence is required to prove the abandonment of a domicile of origin, and it will persist until a
new domicile of choice is successfully acquired.

Revival of the domicile of origin

6
[1987] 1 FLR 166.
7
Ibid..
8
Ibid..,
9
John O’Brien, Conflict of Laws 2nd ed pg 198
situation, following the principle that no man can be without a domicile, it is said that the
domicile of origin revives.10 The combination of the enduring nature of the domicile of origin
and the possibility of its revival does mean that in many cases the propositus will be deemed not
to have lost his domicile of origin notwithstanding the fact that he may have had little recent
contact with the country in question. In these circumstances, it is hardly surprising that, in the
leading case, the foreign wanderings of the central characters were not sufficient to deprive them
of their domicile. Neither the absence of Colonel Udny from Scotland,88 nor the travels of Mr
Winans, were sufficient to displace the domicile of origin; likewise, the indecision of Mr Belland
the inertia of Mr. Bowie both lead to the same results.

In the case of Winans v AG, 11William Winans was born in Baltimore in 1823 but, in 1859, he
came to England and lived there all his life at various places until his death in 1896. He built
railways in Russia and helped that country in the Crimean War (1853–56) by constructing
gunboats. He retained plans for his properties in Baltimore. He disliked England and appeared to
be without friends. The evidence indicated that his sole remaining ambition was to enable the
USA to acquire world maritime supremacy at the expense of England. On his death in 1896, the
question arose as to his place of domicile. If he was domiciled in England then legacy duty was
payable. In giving judgment for the House of Lords and reversing the Court of Appeal, Lord
McNaughton emphasized that domicile of origin is more enduring than domicile of choice and
that, on the evidence, it could not be said that Mr. Winans had acquired a domicile of choice in
England.
The court held that despite Mr. Winans' long residence in England, his strong evidence of intent
and his lifelong attachments to the United States prevented the acquisition of a domicile of
choice in England. Consequently, his domicile of origin in Baltimore continued.
This case demonstrates what happens when it is established that a person didn’t not acquire the
domicile of choice, the principal in this case is simply that if such a person did not acquire
domicile of choice, his domicile of origin will be presumed to continue.
Similarly, in the case of In Bell v Kennedy12, Bell had a Jamaican domicile of origin but after
leaving Jamaica, he was uncertain whether to settle on Scotland or England. Therefore the House
of Lords held that he had not lost his Jamaican domicile of origin. A person's original domicile
remains till another domicile is acquired, and to acquire a new domicile it is necessary not only
to reside in another country but to have the intention of residing there permanently.13
Based on the case Law used above, it would appear that even when it is established that a person
did not acquire a domicile of choice, his domicile of origin will be presumed to continue.

10
John O’Brien, Conflict of Laws 2nd edn,( Cavendish Publishing Limited 1999) PG 197
11
[1904] AC 287.
12
[1868] LR 1 SC Div 307.
13
Ibid ..
Q.2
Three Kinds of Domicile at Law
The case of Udny v. Udny provides an illustration of the three kinds of domicile recognized at
law: domicile of origin, domicile of choice, and domicile of dependence.
Domicile of Origin
A domicile of origin is the domicile a person acquires at birth. It remains with him or her until it
is replaced by either a domicile of dependency or choice.14 A child acquires the domicile of his or
her father at birth if legitimate, and that of his or her mother if illegitimate or posthumous. A
foundling derives his or her domicile of origin from the country where he or she is found.15
Example, John was born in Zambia to Zambian parents, his domicile of origin is Zambia.
In the case of Udny v. Udny, the father’s domicile of origin was in Scotland, as he was born
there. The domicile of origin is considered to be tenacious, meaning it can revive if a domicile of
choice is abandoned without acquiring a new domicile of choice.
Domicile of Choice:
A domicile of choice is acquired by an individual residing in a country, other than the country of
his or her origin, with the intention of remaining there permanently.16
The onus of proving the acquisition of such a domicile is on the party alleging it, and the burden
of proof is a heavy one. Residence is a question of fact. It has to exist, but need not be prolonged.
However, it must indicate a real link between the individual and his or her alleged new
homeland. Intention to reside in the new homeland must be permanent or indefinite. It does not
suffice to have the intention conditional upon the occurrence of enact.17
Example, John now an adult, moves to the UK for work and intends to stay there permanently.
He acquires a domicile of choice in UK.
In reference to Udny v. Udny, the father had acquired a domicile of choice in England by taking
a lease of a house in London and residing there. However, once he left England without the
intention to return, he abandoned his domicile of choice in England. As he did not acquire a new
domicile of choice in France, his domicile of origin (Scotland) revived.

14
1. Abla Mayss, Principles of Conflict of Laws (3rd edn, Cavendish Publishing Limited
1994)
15
John O’Brien, Conflict of Laws 2nd ed pg 235
16
Ibid…,
17
Ibid…
Domicile of Dependence
A child under the age of 16 is subject to a domicile of dependency if the parents abandon their
domicile of origin and acquire a domicile of choice in a new land.18
The domicile of dependency of a child is that of his or her father if legitimate, and that of his or
her mother if illegitimate. Since 1974, where the parents are alive but living apart, the child’s
domicile is that of the mother if he or she then has a home with her and no home with the father,
or has a home with the mother and has not since had a home with the father.19
An adopted child is treated as if he or she had been born to the adoptive parents. Where the child
is legitimate and the parents are living together, the child’s domicile is dependent on that of the
father. When the father dies, the child takes the mother’s domicile, even if the mother acquires a
new domicile, provided that her change of domicile was not done fraudulently.20
If the mother changes her domicile but leaves the child behind, then her new domicile will not
pass to the child as a domicile of dependency.21
Example: John’s Minor child, Jane has a domicile of dependence, which is the same as John’s
domicile ( the UK).
In the context of Udny v. Udny, while the case did not directly focus on the domicile of
dependence, it would apply to the respondent if he were still a minor. His domicile would follow
that of his father’s domicile of origin (Scotland).
Application in Udny v. Udny
The House of Lords held that the father’s domicile of origin in Scotland had revived after he
abandoned his domicile of choice in England. He had not intended to permanently reside in
France, thus his domicile of choice in England was lost, and the domicile of origin in Scotland
was revived. This case illustrates how domicile can shift and revert based on residence and
intention, and it highlights the persistence of the domicile of origin when a domicile of choice is
abandoned without acquiring another.

CONCLUSION

18
John O’Brien, Conflict of Laws 2nd ed pg 198
19
Ibid…,
20
Ibid..,
21
ibidmn
In conclusion, this assignment has thoroughly addressed the concept of domicile by explaining
the criteria for acquiring a domicile of choice and the consequences of not doing so, as well as
illustrating these concepts through the case of Udny v Udny.
First, we examined the test for a domicile of choice, which requires physical presence and the
intention to reside permanently or indefinitely. These criteria ensure a substantial and deliberate
connection to the new location.
Next, we discussed the implications of failing to acquire a domicile of choice, noting that a
person's domicile of origin continues to apply and will revive if a domicile of choice is
abandoned without a new one being established.
Finally, the case of Udny v Udny highlighted the three types of domicile: domicile of origin,
domicile of choice, and domicile of dependence. The House of Lords' decision demonstrated
how a domicile of origin can revive and emphasized the importance of intent and presence in
determining domicile.

BIBLIOGRAPHY
STATUTES
CASE LAW
1. IRC v Duchess of Portland [ 1982] Ch 314.
2. Re Flynn (deceased) [1968] 1 WLR 103 ( Megarry J).
3. Cramer v Cramer [1987] 1 FLR 166.
4. Winans v AG [1904] AC 287.
5. Bell v Kennedy [1868] LR 1 SC Div 307.
BOOKS
1. Abla Mayss, Principles of Conflict of Laws (3rd edn, Cavendish Publishing Limited
1994)
2. John O'Brien, Conflict of Laws (2nd edn, Cavendish Publishing Limited 1999)
3. J.G Collier, Conflict of Laws (3rd ed