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was introduced in 1959 (Hansard HL vol 213 col 709, 22 Jan) and would have proceeded to the House of Commons, but was withdrawn by its sponsors who anticipated strong opposition, see: Mann, M, ‘The Domicile Bills’ (1959) 8 ICLQ 457.Google Scholar The Private International Law Committee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