The importance of domicile

“Residence without intention or intention without residence will not do to establish a domicile of choice”.

In English law domicile is a vitally important concept which can have important ramifications affecting the succession of assets, tax liabilities and whether an individual is entitled to pursue certain proceedings in the English courts.

Everyone is born with a domicile of origin which, if your father is alive and your parents are married at the time of your birth, will be determined by your father’s domicile. This domicile of origin can be displaced by a domicile of choice, although a domicile of origin has been said to be “more tenacious” than other types of domicile. A case in the Court of Appeal demonstrated how vital domicile can be in determining other rights and obligations, and reiterated the conditions that have to be established before being able to successfully claim the replacement of a domicile of origin with a domicile of choice.

A mobile marriage

Una Kelly was born to an Irish father in Ireland, where she lived until she was aged 23 when she moved to England to study for a Masters degree at the University of Manchester. After 18 months, in March 1997, Ms Kelly left England to take up an internship at the European Commission before becoming a permanent employee at the Commission. Ms Kelly subsequently worked abroad, apart from 11 months in 2001/02 when she returned to London on a temporary contract. After four months in the country she successfully applied for a job in Albania.

She married John Pyres in Italy in 2005 and her only periods in London after 2002 were in 2006 to give birth to their first child and in 2009 to attend marriage counselling. The marriage broke down in 2015 and Ms Kelly claimed that she had acquired a domicile of choice in England, displacing her Irish domicile of origin, which would entitle her to bring divorce and financial remedy proceedings in the English courts.

The judge at first instance decided that Ms Kelly had “maintained strong practical, financial and fiscal links with the UK “ and that London had been her “centre of gravity”. As such it was held that Ms Kelly had established a domicile of choice in England and thus was entitled to bring divorce and financial remedy proceedings in the UK. Mr Pyres appealed this decision.

The Appeal

The Court of Appeal stated that it is more difficult to prove that someone has abandoned their domicile of origin than to prove that they have abandoned a domicile of choice, and that the burden of proof was on Ms Kelly to show that she had lost her Irish domicile of origin. A domicile of choice can be acquired by a combination of residence and an individual’s intention to make the new country their permanent or indefinite residence.

The court pointed out that the period of residence does not have to be long, what is important is the individual’s intention. Lady Justice King said “Residence without intention or intention without residence will not do to establish a domicile of choice”. In the court’s view the fact of residence and the intention to remain at least indefinitely must co-exist. As such, the court found that during her two periods of residence in England Ms Kelly did not have the requisite intention to remain. The court emphasised that an intention to retire to England in the future was not sufficient to establish a domicile of choice.

Ms Kelly did not marry in England, did not spend her holidays or maternity leave here and gave birth to her second child abroad. She had shown no “personal nexus” to this country. The court said, however, that another individual who worked extensively or exclusively abroad could establish a domicile of choice in a country “they regard as their home” but in Ms Kelly’s case this had not been demonstrated so she retained her Irish domicile.

In summary

• Domicile is a key legal concept; it affects many other rights and obligations and can determine a person’s tax position.
• A domicile of origin is harder to lose than a domicile of choice
• To establish a domicile of choice an individual must be resident in the country chosen (even for a short period), and, during that period of residence, they must prove that they had a clear intention to remain in the country, permanently or indefinitely.
• Working outside of the chosen country will not necessarily affect the establishment of a domicile of choice provided residence and intention at the same time can be shown, and the individual can prove that they regard the chosen country as their home.