AN APPRAISAL OF THE DOCTRINE OF DOMICILE UNDER THE PRIVATE INTERNATIONAL LAW
ABSTRACT
This write up is to assess the quality of the value of the doctrine of domicile under the
Private International Law i. e Conflict of laws.
Private International Law is that part of law of a country which deals with cases
having a foreign element. It is therefore the that part of law that comes into into play
whenever the issue before the affect some events/ facts/ transactions that are so
closely connected with a foreign system of laws as to necessitate recourse to that
system.
The law pertaining to where a person intends to make his permanent home is subject
to a lot of argument. No wonder domicile has been said to be easier describe than to
define. There are indication from both local and foreign journals which indicate that
there are conflicting understanding in the area of domicile.
Under the Private International Law, the concept of domicile has several as well as
area of applications, some of which include the acquisition and loss of domicile of
choice, origin and dependence.
In Nigeria, the doctrine of domicile is alien, a product of our colonial link with the
British common law. Due to the diversi ethnicity and culture in Nigeria. The doctrine
of domicile is based on its character subject to conflict based in the Nigerian context.
This long essay identifies the various definition of domicile, the distinctive features of
each type of domicile, their workings, variations and also their shortenings.
TABLE OF CONTENTS
COVER PAGE……………………………………..………….……………….i
CERTIFICATION PAGE……………………………..………...……………ii
ABSTRACT………………………………………………….………………..iii
TABLE OF CONTENTS..................................................................................iv
DEDICATION…………………………………………………………...……viii
ACKNOWLEDGEMENT……………………………………………………ix
TABLE OF CASES……………………………………………………………x
TABLE OF STATUTES………………………..……………………………..xii
LIST OF ABBREVIATIONS………………………………………………….xiii
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION………………………………………………………….1
1.1.0: BACKGROUND TO THE STUDY………………………………............3
1.2.0: OBJECTIVES OF STUDY………………………………………………..3
1.3.0: FOCUS OF STUDY………………………………………………………...4
1.4.0: SCOPE OF STUDY…………………………………………………………4
1.5.0: METHODOLOGY……………………………………………..…...............5
1.6.0: LITERATURE REVIEW…………………………………………………..5
1.7.0: CONCLUSION………………………………………………………………7
CHAPTER 2
DOCTRINE OF DOMICILE
2.0.0: INTRODUCTION……………………………………………………………8
2.1.0: DEFINITION OF DOMICILE .......................................................................9
2.2.0:ASCERTAINMENT OF DOMICILE………………………………………16
2.3.0: DOMICILE AND NATIONALITY……………………………...................17
2.4.0: RULES AND TYPES OF DOMICILE…………………….………………20
5
2.5.0: CONCLUSION………………………………………………........................25
CHAPTER 3
ACQUISITION OF DOMICILE
3.0.0: INTRODUCTION……………………………………………………………27
3.1.0: ACQUISITION OF DOMICILE OF ORIGIN…………….……………….28
3.2.0: ACQUISITION OF DOMICILE OF CHOICE…………………………….31
3.2.1.0: RESIDENCE (FACTUM)…………………… …………………….…….33
3.2.1.1: THE REQUISITE INTENTION (ANIMUS) ……………………………36
3.2.1.2: SPECIAL CASES IN ACQUISITION OF DOMICILE OF CHOICE...49
3.2.1.3: LOSS OF DOMICILE OF CHOICE..........................................................55
3.3.0: DOMICILE OF ORIGIN AND CHOICE CONTRASTED………….......55
3.4.0: CHANGE OF DOMICILE AND NATIONALITY ………...……………61
3.5.0: CONCLUSION……………………………………………………………....62
CHAPTER 4
DOMICILE OF DEPENDENT PERSONS
4.0.0: INTRODUCTION………………………………………………………..64
6
4.1.0: DOMICILE OF CHILDREN …………………………………………64
4.2.0: DOMICILE OF MARRIED WOMEN………………………………....66
4.3.0: DOMICILE OF PERSON OF UNSOUND MIND ……………………69
4.4.0: MERITS AND DEMERITS OF DOMICILE…………….…………...70
4.5.0: CONCLUSION …………………………………………………………72
CHAPTER 5
GENERAL CONCLUSION
5.0.0: CONCLUSION………………………………………………………………73
5.1.0: RECOMMENDATION…………………………………………………….74
BIBLIOGRAPHY………………………………………….....................................76
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
It has been universally recognized that questions affecting the personal status of a
human being should be governed constantly by one and the same law irrespective of
where he may happen to be or of where the facts giving rise to the question may have
occurred. But unanimity goes no further, there is disagreement on two matters. What
is the scope of this „personal law‟, as it is called and should its criterion be domicile or
nationality?1 In England, however it has long been settled that question affecting status
are determined by the law of the domicile of a person and that broadly speaking such
questions are those affecting family relations and family property. To be more precise,
the following matters are to a greater or lesser extent governed by the personal law:
the essential validity of marriage; the effect of marriage on the propriately rights of
husband and wife; jurisdiction in divorce and nullity of marriage, though only to a
limited degree; legitimacy, legitimating and adoption, wills of movables and intestate
succession to movables. The concept of domicile however, is not uniform throughout
1
Cheshire and North‟s :on the merits of nationality and domicile in pp 165- 167 of Private
International Law
14
the world Domicile known as habitual residence to some and permanent residence to
some people.2
The English concept of domicile is bedeviled by rules, these are complex often
impossible to justify in policy terms and lead to uncertainty of outcome. Before
looking at these rules in details, one preliminary matter should be considered. This is
question of whether the same test for domicile applies regardless of the context I
which the matter is raised. English law take the view that the test which determines the
place of a man‟s domicile must remain constant no matter what the nature of the issue
may be before the court. „Domicile‟ is regarded as a relative term which varies in
meaning according to the different situation (e.g. divorce, taxation intestate
succession) to which it is applicable. There are however types of domicile, domicile of
origin: gotten from birth, domicile of choice: acquired in substitution for the present
one and also domicile of dependent persons: acquire through the person they are
depending on.
These and many more are what is going to be discussed later. Domicile, in its
appraisal, its type, workings and also shortenings.
Whicker v Hume (1858) 7 H L Cas 124 at 160
15
1.1.0: BACKGROUND TO THE STUDY
Until the beginning of the nineteenth century, domicile was universally recognized as
the basis for the application of personal law.3 However, as a result of the influence of
Maincini4 in the mid-nineteenth century some of the continental European countries
adopted nationality in preference to domicile as the connecting factor for the
ascertainment of personal laws. Since then, some countries have somehow combined
the two criteria. For common law countries, however, domicile appears to have been
generally accepted. In Nigeria, the adoption of can be justified on ground of practical
necessity as “Nigeria nationality” covers a number of independent legal systems.5
1.2.0: OBJECTIVES OF STUDY
The aim of this write up is to
1. Assess the definitions of domicile under the Private International Law.
2. Access the quality of the value of domicile.
3. To discuss the rules of domicile as contained in the received English law and to
show how these rules have been, or ought to be modified in order suit Nigerian local
conditions.
3
Logical and Legal basis of the conflict of laws .pp 104.
4th
Cheshire G.C ; Private International Law (7 ed) p. 180
5
The French Civil Code (code Napoleon) 1803
16
4. To identify the distinctive features of each types of domicile, their workings,
variations and also their shortenings.
5. To proffer recommendations on the doctrine of domicile.
1.3.0: FOCUS OF STUDY
Under the Private International Law, the concept of domicile has several as well as
areas of applications, some of which include the acquisition and loss of domicile of
choice, origin and dependent.
The focus of study or centre of interest therefore is on the concept of domicile as
adopted to determine the individual personal law which is the law of the country to
which the person primarily belongs especially for the purpose of family law and
succession. So personal law determine matters such as essential validity of marriage,
intestate succession, legitimacy, legitimation and adoption etc. All these and many
more are what will be discussed in this essay.
1.4.0: SCOPE OF STUDY
The range of this essay however, is strictly on the assessment of domicile under the
Private International Law in both the Inter- state and International situations and that
the adherence to the English law by the Nigerian judges which should be curbed since
the rules itself is being subjected to reform in England.
17
1.5.0. METHODOLOGY
Both primary and secondary sources of law and the basis for this research work. Thus
the Domicile Act, Law Textbooks, Law report, Articles on law, various statute and
cases on the subject matter are sources of information. This project shall also be both
comparative and analytical in nature.
1.6.0: LITERATURE REVIEW
In this study relevant literature, judicial authorities and statutes shall be examined.
Thus, credence shall be given to several authors in the field of the Conflict of laws
whose works have in no small measure contributed immensely to Private International
Law on the whole. Works of different authors both foreign and Nigerian such as
Morris and Dicey, Cheshire an North‟s, Graveson, Agbede I.O, to mention a few will
serve as an aid to arrive at a logical conclusion on this study.
Morris in his book The Conflict of laws6 provides a comprehensive and authoritative
coverage of the subject but failed to Graveson ,Conflict of laws7 who only commented
on the definition of domicile to no longer fits the complexity, movement and
sophistication of modern life in which many of our best intentions become temporary
through frustrating circumstances. But he failed to point out the ways to go about
6th
Morris: the Conflict of laws, 4 ed by J D McClean, London, sweet and Maxwell, 1993, p 12
7
Graveson, conflict of laws (1969) p.20
18
giving a definition that will fit our modern life. On the other hand, Agbede .I .O,
Themes on Conflict of Laws8 talk on the need to establish residence and intention to
remain in a place permanently (or indefinitely),he also went further to provide a
comprehensive coverage of the spectrum of the law of domicile as it applies in
Nigeria but he did little in expanciating on this requisites of acquiring a domicile of
choice.
Accordingly, Cheshire and North‟s in their book Private International Law9 gave a
good insight to domicile being a difficult term to define but rather better in
description, but their way of describing was faulty in that there was no clear
distinction between a permanent home and habitual home.
Many books and Statutes shall be used mostly in the course of this study. This is
because textbooks are what has been compiled by various authors while using the
Statutes to back up their argument. Thus, it is only logical for this approach to be
adopted since the word domicile itself still happen in how day to day living, as people
migrate from one country to another, so there was need for domicile. In this vein,
Omoruyi. I. O in his Article10 Domicile as a determinant of personal law; a case for
the abandonment of the revival doctrine in Nigeria, examined that the common law
8
Agbede I.O., Themes on Conflict of Laws.( 2001) Shaneson C. I Ltd
9th
Cheshire and North‟s , Private International Law, (1974) (7 ed)
10
htp/wwwnigerianlawgurucom.articles>accessed 2000
19
conception of domicile vis-à-vis the revival doctrine cannot adequately fit into the
realities of the contemporary society and therefore the law must be reformed to reflect
this fact.
Though, all these authors have tried to assess the doctrine of domicile but it is
however clear that there is need for the modifications of some of these rules of the
received English law before it can be incorporated into the Nigerian laws.
1.7.0: CONCLUSION
In conclusion, this chapter is an insight into the study of the doctrine of domicile, the
quality of it, the aims and objectives, the various methods to be used and also the
various authors who dealt succinctly with the assessment of domicile. This chapter is
just the introductory part of the study of the doctrine of domicile under Private
International Law.
.