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Domicile Revisited

Published online by Cambridge University Press:  16 January 2009

Richard Fentiman
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Extract

A Decade or so since the decisions in Re Furse and Brown v. Browne it is time to return to those intriguing cases and to the test for personal domicile which they employed. Outwardly, at least, little has changed since Fox J. held that Mr. Furse died domiciled in England, making his estate liable for estate duty; or since the Court of Appeal ruled in favour of Mr. Brown, whose domicile for jurisdictional purposes was challenged by his wife in their divorce proceedings. But at a deeper level both cases beg questions of principle which have yet to be resolved. They also sowed the seeds of a better law of domicile which have begun to germinate, if Hoffman J.'s more recent decision in Plummer v. Inland Revenue Comrs. is any guide. The subtle realignment of the test for domicile disclosed by Furse, Brown, and Plummer is this article's concern. Its conclusion is that all three cases suggest how factual connection is coming to replace intention as the touchstone for a change of domicile.

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Articles
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The Cambridge Law Journal , Volume 50 , Issue 3 , November 1991 , pp. 445 - 463
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Copyright © Cambridge Law Journal and Contributors 1991

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References

1 [1980] 3 All E.R. 838; the following treatment of Re Furse pursues an argument begun in Fentiman (1986) 6 0.1.L.S. 353, at pp. 365–366.

2 [1982] 3 F.L.R. (C.A.).

3 The period has seen a Law Commission Working Paper (No. 88) (1985) and a Report (Law Com. No. 168 (1987)), together with two useful reported decisions on domicile: I.R.C. v. Duchess of Portland [1982] Ch. 314 and Cramer v. CramerGoogle Scholar [1987] F.L.R. 117; both were technical, narrowly focused decisions; neither speaks to the wider concerns of the present article. See also Fawcett (1985) O.J.L.S. 338; Pearl, Family Law and the Immigrant Communities (1986)Google Scholar, ch. 4; Carter (1987) 36 I.C.L.Q. 713; North 1990 Recueil des Cours I, ch. I, esp. pp. 4345.

4 [1988] 1 All E.R. 97.

5 Private International Law Committee, First Report 1954 (Cmnd. 9068); Seventh Report 1963 (Cmnd. 1955); M. Mann (1963) 12 I.C.L.Q. 1326; Law Commission Working Paper No. 88 (1985) supra note 3; Law Commission Report (1987), supra note 3.

6 At birth a legitimate child born in his father's lifetime acquires his father's domicile, an illegitimate child his mother's: Udny v. Udny (1869)Google Scholar L.R. 1 H.L.Sc. … Div. 441, 457.

7 Lord v. Colvin (1859) 4 Drew 366, 376, per Lord Kindersley V.C.

8 See the 1987 Law Commission Report, supra note 3, Part III and paras. 9.12–9.16.

9 Whicker v. Hume (1858) 7 H.L.Cas. 124, 160.Google Scholar

10 To call a home permanent is ambiguous. It could mean merely that it is established, not peripatetic, though not necessarily fixed for ever; or that it is incapable of alteration. Lord Cranworth probably used “permanent” in a purely relative sense; the propositus in Whicker v. Hume had two “homes” but only his “permanent” one in England was his domicile. His Lordship could just as well have said that, although connected with both countries. the propositus had his most real and substantial connection with England.

11 Doucet v. Geohegan (1878) 9 Ch.D. 441, 456.Google Scholar

12 Cockrell v. Cockrell (1856)Google Scholar 25 L.J. (Ch.) 730, 731; for similar sentiments see also Forbes v. Forbes (1854)Google Scholar 23 L.J. (Ch.) 724, 726 (per Wood V.C.); A-G v. Rowe (1862) 31 L.J. (Ex.) 314, 319 (per Bramwell B.). Positivist as he was, Dicey firmly denied that domicile was incapable of definition: A.V. Dicey, Domicil (1879), at pp. 335–337. One can only speculate as to how far Dicey's advocacy of precision persuaded the courts to abandon their traditionally generalised and robust approach.

13 Inland Revenue Comrs. v. Bullock [1975] 1 W.L.R. 1436, 1442 (overruled [1976] 1 W.L.R. 1178 (C.A.)).

14 In the Estate of Fuld [1968] P. 675, 686.Google Scholar

15 Bruce v. Bruce (1790) 2 Bos. & P. 229, 231; Bempde v. Johnstone (1796) 3 Ves. 198, 201; Hodgson v. De Beauchesne (1858) 12 Moo. P.C.C. 285, 329; Udny v. Udny (1869) L.R. 1 Sc. & Div. 441, 455; cf. Re Liddell-Grainger's Will Trusts [1963] 3 All E.R. 173.

16 Supra note 11.

17 At p. 456.

18 Puttick v. A-G [1980] Fam. 1. 17; no home was established in that case, which is made special because the claimant's English residence was illegal.

19 Inland Revenue Comrs. v. Bullock, supra note 13, at p. 1441.

20 Cheshire, and North, , Private International Law (11th ed. 1987), p. 146.Google Scholar

21 Supra note 13; infra, section II B 1.

22 Op. cit. note 12 supra, at p.333. In so doing he reveals a late nineteenth-century preoccupation with positivist jurisprudence and with consent as the touchstone of legal liability; see infra. section II B 2.Google Scholar

23 [19301 A.C. 588: see now Wills Act 1963, s. 1

24 [1904] A.C. 287.

25 Udny v. Udny (1869) L.R. 1 H.L.Sc. & Div. 441, 450. The earliest instance of the idea that the domicile of origin has a role only when a propositus lacks a substantial connection anywhere seems to be Lord Loughborough L.C.'s remarks in Ommaney v. Bingham, Dom. Proc.. 18 March 1796: “Birth affords some argument and might turn the scale, if all the other circumstances were in aequilibrio” (see 5 Ves. 758).

26 This solution is recommended in the Law Commission Working Paper No. 88 (1985). It obtains in the United States: see Re Jones’ Estate 192 Iowa 78, 182 N.W. 227 (1921).

27 Winans v. Attorney-General [1904] A.C. 287; Ramsay v. Liverpool Royal Infirmary, supra, note 23.

28 Munroe v. Douglas, 5 Madd. 379 (1820).

29 At p. 598.

30 At p. 598; cf. Lord Thankerton at p. 597; Lord Buckmaster at p. 594; Lord Dunedin at p. 594.

31 At p. 289.

32 At p. 597.

33 Bell v. Kennedy (1868) L.R. 1 H.L. Sc. & Div. 307, 319, per Lord Chelmsford.

34 At p. 598; calling himself a “Glasgow man” the best-and only-evidence of Bowie's intention.

35 [1975] 1 W.L.R. 1346 (Brightman J.); [1976] 1 W.L.R. 1178 (C.A.).

36 At p. 1441.

37 Winans v. Attorney-General, supra note 24, at p. 291, per Lord Macnaghten.

38 Bruce v. Bruce (1790) 2 Bos. & P 229 at 231; Bempde v. Johnstone (1796) 3 Ves. 198, 201; Hodgson v. De Beauchesne (1858) 12 Moo. P.C.C. 285, 329; Udny v. Udny (1869) L.R. 1 H.L.Sc. & Div. 441, 455.

39 Winans v. Attorney-General [1904] A.C. 287.

40 Atiyah, The Rise and Fall of Freedom of Contract (1981), p. 407.

41 Whicker v. Hume (1858) 7 H.L.Cas. 124, 160.

42 Moorhouse v. Lord (1863) 10 H.L.Cas. 272, 283.

43 Pole v. Leask (1862) 33 L.J.Ch. 155.

44 Jopp v. Wood (1865) 4 De G.J. & Sm. 616.

45 See Fentiman [1985] C.L.J. 256.

46 Supra, note 1.

47 Supra, note 2.

48 Supra, note 4.

49 At p. 847d-e.

50 At p. 847d-e.

51 At p. 847d-e.

52 At pp. 846h-j, 847c-d, 848h-j.

53 At p. 846f.

54 At p. 848h-j (italics supplied).

55 At p. 847.

56 Supra, note 2.

57 At p. 218c-f.

58 At pp. 217b-g; 219h-220A, 220g-h; cf. Jopp v. Wood, supra note 44, exemplifying the colonial “homeland” principle; cf. Zahra v. V.O., Islamabad [1979–80] Imm.A.R. 48 and comment by Pearl, Family Law and the Immigrant Communities (1986), ch. 4.3.

59 Supra pp. 452–453.

60 At p. 215f.

61 At p. 215d-g.

62 It is interesting how close the decision in Brown comes in its result to the proposal of the Law Commission Working Paper (1985), supra note 3, that seven years’ habitual residence in a country should create a rebuttable presumption that a person intends to be domiciled there: ibid. at para. 5.17; the proposal was omitted in the subsequent Report, supra note 3.

63 [1988] 1 All E.R. 97.

64 At p. 106b-c.

65 At p. 106c-d.

66 At p. 106c-d.

67 At p. 107d.

68 Dicey, and Morris, , Conflict of Laws, Third Supplement to the 11th Edition (1990)Google Scholar, at pp. 1213; Kunzlik [19881 C.L.J. 187; Smart (1990) 10 O.J.L.S. 572.