What is domicile and why do we have it?

Everyone has a domicile. The requirement to have a domicile is the necessity to connect each person with a system of law under which his or her legal relationships can be regulated.

In family law, domicile is one concept used to determine which legal system may apply to you within divorce proceedings. This is important if you are an international family with strong links to several different countries.

Everyone has a domicile at all times, having been obtained through origin, dependency, or by choice. In this article we will explain how you acquire domicile, and how you lose or retain it.

Definitions of domicile can be found in the Domicile and Matrimonial Proceedings Act 1973 and various case law.

Why is domicile impotant?

Domicile is important because it can provide the required connection to allow you to divorce in another country from the one you are living in. Under English law, only one party to a marriage must be domiciled in England for a divorce to be commenced in England. Such a divorce is possible even if both husband and wife are living outside England at the time of the divorce.

Domicile of origin

Your domicile of origin is the domicile that you will acquire at birth. If both of your parents were alive and living together at the time of your birth, this is the country in which your father is domiciled at the date of your birth. If your parents were separated at the time of your birth and you lived with your mother, you will adopt her domicile.

Your domicile will endure forever unless it is displaced because you acquire a domicile of dependency or of choice. Domicile is ‘notoriously adhesive’; it is hard to lose. Your domicile of origin will lie dormant and could eventually revive if your domicile of dependency or of choice is lost. It is more tenacious than domicile of choice and thus, it is more difficult to prove that a person has abandoned his/her domicile of origin than it is to prove that that s/he has abandoned his/her domicile of choice.

Domicile of choice

You can acquire a domicile of choice by a combination of residence and intention of permanent or indefinite residence.

If you say that you have adopted a new domicile of choice, there is a high burden of proof for you to show that you have lost your domicile of origin. Whilst the motive of this change is irrelevant, being a matter of fact, you will be obliged to demonstrate you have broken all ties with the country which is your domicile of origin. The courts will assess domicile on a range of factors, including:

  • your nationality
  • content of existing wills, and
  • your social and family commitments.

Our lawyers will ask you a series of questions to provide an assessment of your current domicile to determine which legal system may apply to you within divorce proceedings.

Domicile of dependency

Domicile of dependence is closely connected to domicile of origin and focuses mainly on unmarried children under the age of 16 and mentally disordered persons. These groups are in need of special protection and will obtain the domicile of the person on whom they are considered to be dependent by law, either parents or guardians. After a father’s death, the child’s domicile will generally follow any change in their mother’s domicile until after the age of 16 when they can acquire their own domicile of choice.

Please contact us for discrete advice as to whether you are likely to be domiciled in England or Wales for divorce purposes.

For more information and advice on child maintenance if you’re unmarried or based abroad, see the section on child support and maintenance (in menu). You may find the below articles helpful:

Domicile - what is it and why do we have it?

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