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II. Regression and Reform in the Law of Domicile

Published online by Cambridge University Press:  17 January 2008

Peter McEleavy  and
Peter McEleavy
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Extract

In the United Kingdom the law pertaining to domicile has the rather dubious distinction that, although subjected to concerted criticism from commentators and law reformers alike for over half a century, it has largely remained unchanged.1 Common law jurisdictions around the world have succeeded in passing legislation which, to varying degrees, has modernized the concept,2 yet in Britain a series of initiatives have either failed to complete the legislative process or not even made it to Parliament.3 The reason in each instance was less the substance of the proposals, but rather political expediency in the face of pressure from the overseas business community resident in the United Kingdom, who feared extended fiscal liability if the connecting factors were attributed with a less legalistic interpretation.4

Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 56 , Issue 2 , April 2007 , pp. 453 - 462
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 The domicile of dependence of married women was abolished by the Domicile and Matrimonial Proceedings Act 1973, s1.

2 (Australia) Domicile Act 1982, (Canada—Manitoba) Domicile and Habitual Residence Act 1983, (New Zealand) Domicile Act 1976, (South Africa) Domicile Act 1992.

3 The initial attempt at reform stemmed from the first report of the Lord Chancellor's Standing Private International Law Committee, (Cmd 9068, 1954), which recommended, inter alia, the abolition of the revival of the domicile of origin and the creation of rebuttable presumptions as to a person's domicile. These were adopted in a private Members' Bill introduced in 1958 (Hansard HL vol 209 col 371, 15 May). The Bill stirred strong views but passed the House of Lords in three readings, only to lapse in the House of Commons due to the end of the parliamentary session. A watered-down successor was introduced in 1959 (Hansard HL vol 213 col 709, 22 Jan) and would have proceeded to the House of Commons, but was withdrawn by its sponsors who anticipated strong opposition, see: Mann, M, ‘The Domicile Bills’ (1959) 8 ICLQ 457.Google Scholar The Private International Law Committee was instructed to reconsider the matter in the aftermath of the failure of the Bills and in 1963 a new report was issued (Cmnd 1955). This did not advance the debate; other than endorsing the approach put forward in the first report the Committee meekly noted that there could be an exception in any new regime for business men, although it acknowledged this would undermine the reform, or, there could be a separate fiscal domicile, but this would raise issues of great complexity. Whilst the report did not encourage the adoption of an independent domicile for married women, this issue and several matters relating to the domicile of children, were the subject of legislation in the Domicile and Matrimonial Proceedings Act 1973. Substantive reform was proposed again in 1985 with the publication of a joint consultation document by the Law Commissions (Working Paper No 88, Consultative Memorandum No 63) which notably called for a rebuttable presumption of acquisition of a domicile where there was seven years' habitual residence in a country as an adult. This was removed in the subsequent report and draft bill (Law Com No 168, Scot Law Com No 107) leaving recommendations that the concept of domicile of origin be abolished, an adult's existing domicile be retained until a new one was acquired and a presumption that a child be domiciled in the country with which he is most closely connected. The draft bill was however never taken forward, being formally abandoned almost nine years later (Hansard, HC vol 269 cols 488–489w, 16 01 1996).Google Scholar

4 In 1959 the then Lord Chancellor, Viscount Kilmuir, expressing regret at the diminution of the content of the second Domicile Bill affirmed: ‘there is no doubt in my mind that the hard facts of the economic position of this country should be given greater weight’ (Hansard HL vol 214 cols 240–2, 12 Feb). With regard to the rejection of the 1987 proposals, see Law Reform Commission of Hong Kong, Rules for Determining Domicile (2005) para 4.28.Google Scholar

5 Udny v Udny (1869) LR 1 Sc & Div 441Google Scholar; Bell v Kennedy (1868) LR 1 Sc & Div 307Google Scholar; Winans v Attorney-General [1904] AC 287Google Scholar and Liverpool Royal Infirmary v Ramsay [1930] SC (HL) 83.Google Scholar

6 International Migration 2005, ONS, 2006: <http://www.statistics.gov.uk/cci/nugget.asp?id=260>>Google Scholar; Sriskandarajah, D and Drew, C, Brits Abroad: Mapping the Scale and Nature of British Emigration (Institute for Public Policy Research, London, 2006).Google Scholar

7 eg in the context of an international custody dispute see: Al Habtoor v Fotheringham [2001] EWCA Civ 186, para 44.Google Scholar

8 Fentiman, R, ‘Domicile Revisited’ (1991) 50 Cambridge Law Journal 445.CrossRefGoogle Scholar

9 cf Cyganik v Agulian and another [2006] EWCA Civ 129.Google Scholar

10 In recent years the main areas in which litigation over domicile has arisen are: divorce jurisdiction, jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975 and in the context of tax liability.

11 Nygh, P, Conflict of Laws in Australia (Butterworths, Sydney, 1968) 65Google Scholar; Fawcett, J, ‘Result Selection in Domicile Cases’ (1985) 5 Oxford Journal of Legal Studies 378.CrossRefGoogle Scholar

12 Mark v Mark [2005] UKHL 42, para 37. Cf the concept of statutory domicile for the Brussels and Lugano regimes, Civil Jurisdictions and Judgments Act 1982, s 41.Google Scholar

13 Carter, P, ‘Domicil: The Case For Radical Reform in the United Kingdom’ (1987) 36 ICLQ 713.Google Scholar

14 Where the domicile of the person on whom the child is legally dependant changes so will the domicile of the child, see for example: Henderson v Henderson [1967] P 77.Google Scholar

15 Udny v Udny [1869] LR 1 Sc&Div 441.Google Scholar

16 Al Habtoor v Fotheringham [2001] EWCA Civ 186Google Scholar; Re R (Abduction: Habitual Residence) [2003] EWHC 1968.Google Scholar

17 In matters of status, marriage and succession. See Rogerson, P, ‘Habitual Residence the New Domicile’ (2000) 49 ICLQ 86.Google Scholar

18 In the Estate of Fuld, (No 3) [1968] P 675.Google Scholar

19 Henderson v Henderson [1967] P 77Google Scholar; R v R (Divorce: Jurisdiction: Domicile) [2006] 1 FLR 389.Google Scholar

20 [1904] AC 287.Google Scholar

21 1930 SC (HL) 83.Google Scholar

22 Munro v Munro (1840) 7 C1 & F 876.Google Scholar

23 Unions v Attorney General [1904] AC 287, 298.Google Scholar

24 ibid 290.

25 ibid 294.

26 [1967] P 77.Google Scholar

27 ibid 80.

28 [2006] EWCA Civ 129.Google Scholar

29 To place this statement in context it may be noted that the trial judge himself held that the burden was a heavy one, stating: ‘the case is decided on the balance of probabilities, but there needs to be weight to tip the scales because there is already the weight of the existing domicile’. Cyganik v Agulian [2005] EWHC 444 (Ch), para 16.Google Scholar

30 para 49.

31 Udny v Udny (1869) LR 1 Sc&Div 441Google Scholar, Winans v Attorney-General [1904] AC 287Google Scholar and IRC v Bullock [1976] 1 WLR 1178.Google Scholar

32 para 53.

33 [1968] P 675.Google Scholar

34 ibid 684.

35 ibid 685.

36 ibid.

37 [1974] 2 All ER 520.Google Scholar

38 [1987] 1 FLR 116Google Scholar

39 ibid 210.

40 [1982] 3 FLR 212.Google Scholar

41 ibid 218.

42 ibid 220. In other cases the issue was not raised: IRC v Bullock [1976] 3 All ER 353Google Scholar, Beekhun v Williams [1999] 2 FLR 229Google Scholar and Mark v Mark (divorce: jurisdiction) [2004] EWCA Civ 168Google Scholar, see also: Mark v Mark [2005] UKHL 42. In Bullock the taxpayer's domicile of origin persisted due to a contingency to return to his country of origin should his wife predecease him. In Beekhun the deceased's domicile of origin was found to have been displaced relatively easily and notwithstanding ongoing connections to his home country. In Mark the matter did not arise after the original trial, but the standard set would not appear to have been very high.Google Scholar

43 cf Beekhun v Williams [1999] 2 FLR 229.Google Scholar

44 The House of Lords refused leave to appeal on 14 June 2006.Google Scholar

45 Cyganik v Agolian (n 28) para 51.

46 The Law Commissions in their 1987 Report argued that no special tenacity should be given to the domicile acquired at birth: Law Com No 168, Scot Law Com No 107, para 4.24.

47 Udny v Udny (1869) LR 1 Sc & Div 441.Google Scholar

48 Law Com No 168, Scot Law Com No 107, p 50, Sch s 1.Google Scholar

49 Scot Law Com No 135, p 130, para 17.12 et seq and p 192, s 45.Google Scholar

50 Family Law (Scotland) Act 2006, s 21.

51 (1869) LR 1 Sc & Div 441.Google Scholar

52 Family Law (Scotland) Act 2006, s 22(2).Google Scholar

53 ibid, s 22(3). To this end s 7 of the Age of Legal Capacity (Scotland) Act 1991 has been repealed, as has s 4 of the Domicile and Matrimonial Proceedings Act 1973.

54 SP Bill 36, Session 2 (2005) <http://www.scottish.parliament.uk/business/bills/36-familyLaw/b36s2-introd.pdf>..>Google Scholar

55 Where the parents had a common domicile the child would be presumed to take that domicile, see Law Com No 168, Scot Law Com No 107 p 50, Sch s. 1(2)Google Scholar; Scot Law Com No 135, p 192, s 45(2).Google Scholar

56 Where the parents did not have a common domicile but the child had a home with one but not the other, the child would be presumed to take the domicile of the parent with whom he lived, see: Law Com No 168, Scot Law Com No 107 p 50, Sch s 1(3)Google Scholar; Scot Law Com No 135, p 192, s 45(3).Google Scholar

57 s 16(3)(c)–(f).

58 The latter was suggested by Professor Clive in his written and oral evidence to the Justice 1 Committee of the Scottish Parliament: 16th Meeting, 2005 (Session 2), 25 05 2005, Oral Evidence <http://www.scottish.parliament.uk/business/committees/justice1/reports-05/j1r05-08-vo102-05.htm#4>..>Google Scholar

59 SP Bill 36-ML2, Session 2 (2005) <http://www.scottish.parliament.uk/business/bills/36-familyLaw/b36s2-stage2-m12.pdf>..>Google Scholar

60 Norrie, K, Annotations to the Family Law (Scotland) Act 2006 (Dundee University Press, Dundee, 2006) 49.Google Scholar

61 Law Com No 168, Scot Law Com No 107, p 16, para 4.11.Google Scholar

62 ibid 18, para 4.18.

63 ibid 14, para 4.3.

64 ibid 19, para 4.24.

65 ibid 54, Sch S 5.

66 ibid 54, Sch S 6.

67 cf Harder, S, ‘Domicile of Children: the New Law in Scotland’ (2006) 10 Edinburgh Law Review 386.CrossRefGoogle Scholar

68 The Family Law (Scotland) Act 2006 (Commencement, Transitional Provisions and Savings) Order 2006, SSI 2006 No 212 (C 19).

69 ibid s 4.

70 Law Com No 168, Scot Law Com No 107, p 36, para 8.7; see also Australian Domicile Act 1982, s 5(1)–(2).

71 Whilst recent Scottish case law is limited there is no evidence of the strong desire to protect the domicile of origin as exhibited in cases such as Cyganik, see: Spence v Spence [1995] SLT 335Google Scholar; Reddington v Riach's Executor [2002] SLT 537Google Scholar; Marsh v Marsh [2002] SLT (Sh Ct) 87.Google Scholar

72 Reviewing the Residence and Domicile Rules as they Affect the Taxation of Individuals: A Background Paper (HM Treasury & Inland Revenue, 2003) <http://www.hm-treasury.gov.uk./media/A37/8B/adres273kb03.pdf>..>Google Scholar

73 By the 2006 Budget report the matter was still recorded as being under review: A Strong and Strengthening Economy: Investing in Britain's Future, HC 968 (HM Treasury, 2006) para 5.104 <http://www.hm-treasury.gov.uk/media/26E/0F/bud06_completereport_2320.pdf>..>Google Scholar