PIL Project Domicile

Law of Domicile in Private
International law
Prepared By :
Aditya Anand
Vth Year
BBA.LLB (Hons)
1405C00006
ICFAI LAW SCHOOL

The ICFAI University
Dehradun
PRIVATE INTERNATIONAL LAW AND FAMILY LAW
INTRODUCTION
Private International law is emerging international law these days as due to drastic change in
world economies. Earlier people used to move within state for search of job etc. and mostly used
to settle there but due to globalization people are moving across state i.e. moving to other
country for various reasons. The role of Private International law comes into picture where
disputes arises as parties are of different state’s(here state means Nation).private international
law is mostly applicable to individual disputes unlike Public International Law which is based on
treaties and conventions recognized by various states.
As both the parties are of different states which means one of the party is an alien or both parties
are alien to the place where cause of action arises or parties wants to settle the matter .PIL comes
into picture because it is a set of procedural rules that determines which legal system and which
jurisdiction apply to a given dispute. Three basic and most essential constituents of PIL are as
follows:
Jurisdiction – whether the forum court has the power to resolve the dispute at hand
Choice of law – the law which is being applied to resolve the dispute
Foreign judgments – the ability to recognize and enforce a judgment from an external forum
within the jurisdiction of the adjudicating forum.
Here’s the example as how important PIL is and when it comes into pictures, for example, in
case of Divorce, an Egyptian man with two wives, both of whom he married in Cairo, who
moves to Paris. Both wives have children; the older wife’s children are grown, while the
younger wife’s son is quite young. Both wives want a divorce when it appears that their husband
is involved with another woman. One wants to return to Egypt, while the other wants to remain
in Paris. What complications arise around issues of terminating one or both marriages?
Thus every court have to pass through following stages while hearing a matter where ‘foreign
element’ is present.
1. The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate
place/forum to adjudicate the matter?
2. The next step is the classification of the cause of action into its component legal categories
like as if in case of divorce validity of marriage may arise, whether the lex forum should
recognize a marriage which is solemnized in other state etc. Aspects of procedural and
substantive laws are taken into account.
3. Each legal category is having choice of law and which law to be applicable. A key element in
this may be the rules of “renvoi”(send back)
4. Once the applicable law is decided, that law must be proved before the forum court and
applied to reach a judgment.
5. The successful party must then enforce the judgment which will first involve the task of
securing cross-border recognition of the judgment.
Private International Law is of more importance in family matters like divorce, adoption,
inheritance of property, movable or immovable etc. IN Family disputes the most important
aspect which is taken into account is of “domicile” i.e. the parties are domicile .In Era of
globalization importance of Private International Law cannot be undermined specially in family
disputes which are increasing day by day.
THE CONCEPT OF DOMICLE AND ITS RELEVANCE
Personal law may be defined as the law of the country to which a person primarily belongs,
especially for the purposes of various matters of family law and succession. In other words, the
personal law of an individual determines such matters as:
(a) The essential validity of a marriage;
(b) The effect of marriage on the proprietary rights of husband and wife;
(C) wills of movables and succession to movables;
(d) Jurisdiction in divorce and nullity of marriage, and to a certain extent, legitimacy of children
and adoption; and
(e) Certain matters of revenue law.
Meaning and Definition of Domicile
The meaning and definition of domicile were elucidated by the Private International Law
Committee in its First Report in 1954 as follows: A person’s domicile may be defined as
meaning the country (in the sense of a territorial unit possessing its own system of law) in which
he has his home and intends to live permanently. The law regards every person as having a
domicile, whether it be the domicile of origin which the law confers on him at birth, or the
domicile of choice which he may subsequently acquire. The two requisites for the acquisition of
a fresh domicile are: (1) residence; and (2) intention to remain permanently, and both these
elements must be present before a new domicile can be acquired. If a person, having acquired
domicile of choice, abandons it without acquiring a fresh one, the law regards his domicile of
origin as having revived until a fresh domicile of choice is acquired, even though he may never
in fact have returned to his domicile of origin.
Hence, according to this statement, domicile may be defined as the legal system within whose
jurisdiction an individual makes his or her home, intending to remain there permanently. It can
be seen that the cornerstone underlying the English concept of domicile is permanent home.
For Purpose of better understanding of domicile in respect of Private International Law, it can be
categorised as follows:
1. Domicile of origin
The domicile of origin is the domicile a person acquires at birth, and remains with that
person thereafter until it is replaced by a domicile of dependency or domicile of choice. A
posthumous child, that is, a child born after his or her father’s death, derives his or her domicile
of origin from that of the mother. As for the domicile of origin of a foundling, this is derived
from the country where he or she is found.
2. Domicile of dependency
It is a well settled rule that no dependent person can acquire a domicile of choice. The domicile
of such persons depends on, and changes with, the domicile of the person on whom they are
legally dependent. Two classes of persons must be examined, namely, children under the age of
16 and married women. As for mentally disordered persons, it suffices to note that, in general,
the domicile of such a person depends on the person to whose care a mentally disordered person
has been entrusted.
3. Domicile of choice
Every independent person is capable of acquiring a domicile of choice by residing in a country

other than the country of origin, with the intention of remaining there permanently. Both the
elements of residence and intention must be satisfied before English law can recognise a change
of domicile. Although these elements are considered distinct, they are, as the remainder of this
section will show, interrelated. 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. 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 an act. Older case law
seems to impose an almost irrefutable presumption against the acquisition of a domicile of
choice. More recent cases appear to make a distinction between a likely and unlikely
contingency. Where the contingency is not sufficiently clear, it will not prevent the acquisition of
a domicile of choice. On the other hand, where it is clear, the court looks at the likely possibility
of it happening. If so, this will prevent the acquisition of a domicile of choice.
4. Abandonment of domicile
A dependent person will, on independence, retain his or her domicile of dependency as a

domicile of choice until it is abandoned at any time thereafter. A domicile of choice will be
abandoned when a person departs from a country and the intention to return has withered away.
A domicile of origin endures until a domicile of choice is acquired. Once a domicile of choice is
abandoned, the domicile of origin revives until another domicile of choice is acquired

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Law of Domicile in Private

ICFAI LAW SCHOOL

THE CONCEPT OF DOMICLE AND ITS RELEVANCE

Meaning and Definition of Domicile

Every independent person is capable of acquiring a domicile of choice by residing in a country

A dependent person will, on independence, retain his or her domicile of dependency as a

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