CONFLICT 1.6 PERSONAL CONNECTING FACTORS
PERSONAL CONNECTING FACTORS.
Many are of the view that the law of the country/place where the parties have a substantial connection with should apply. This is known as personal law. It follows a man wherever he goes. Personal connecting factors include:
- Domicile (applied in England and many other common-law countries like Nigeria).
- Nationality (applied in most civil law countries).
- Habitual Residence.
DOMICILE
Is a person’s permanent home… his centre of gravity. Note the following principles in relation to domicile:
- Nobody can be without a domicile at any point in time.
- A person cannot have more than one domicile for the same purpose at the same time.
- The law of domicile varies from country to country. For example, Section 2(3) of the Matrimonial Causes Act, treats Nigeria as a single domicile for divorce cases.
- An existing domiciled is presumed to continue till another is acquired.
- The person alleging change of domicile should prove-Winnas V AG. A higher standard is required to prove change of domicile of origin-Henderson V
- A company is deemed to be domiciled in the country of its incorporation.
- The courts may vary the rules of domicile to do justice in deserving cases. In Ramsay V Liverpool Royal Infirmary, X initially domiciled in Scotland relocated to Liverpool and lived there for 36 years till his death. The court held that he was domiciled in Scotland. If the court had held to the contrary, X’s Will would have been invalidated.
Domicile is classified into:
- Domicile of origin.
- Domicile of dependence.
- Domicile of choice.
Domicile of Origin:: Is conferred on the basis of parentage. Note the following principles:
:: A legitimate child acquires the domicile of his father at birth-Ramsey V Liverpool Royal Infirmary.
:: It is difficult to loose a domicile of origin. It can be suspended when a domicile of choice is acquired and revives when the domicile of choice is lost- Cyganik V Agulian.
:: An illegitimate child and (or) a child born after the death of its father takes the domicile of its mother-Udny V Undy.
:: A foundling[1] takes the domicile of the place where he is found-Re McKenzie.
:: An adopted child acquires the domicile of adoptive parents-Ramsey V Liverpool Royal Infirmary.
:: Proof of change of domicile of origin requires more than mere probability-Winnas V AG. IRC V Bullock.
:: Domicile of origin revives where domicile of choice has been changed. In Tee V Tee, the court held that the domicile of origin (England) was revived when the applicant left United States of America (domicile of choice). Although in some countries (like United States of America) rather than the domicile of origin reviving, the domicile of choice remains until another domicile is found.
Domicile of dependence: Conferred by operation of the law on legally dependent persons. Such dependent persons would have the same domicile with the person he depends on as the dependent is regarded as incapable of forming the requisite intention. It has been praised for encouraging unity of domicile for all members of the family. The domicile of dependence can be lost where the child attains 16 years therefore his domicile of origin or domicile of choice replaces-See Section 31 Domicile and Matrimonial Proceedings Act 1973. In Harrison V Harrison, the man’s domicile of origin was English. He later acquired Australian domicile by dependence on his parents. He returned to England at 21. The court held his domicile of origin (English) was revived. Some dependent persons include:
- Mentally incapable persons: take the domicile of parents. Where an adult, he retains the domicile he had before becoming mentally incapable-Uruqhart V Butterfield.
- Children: for this purpose is a person below the age of 16. A legitimate child takes the domicile of his living father except he is living with the mother. An illegitimate child takes the domicile of his mother being the person he depends on-Udny V Udny, Section 4 of the Domicile and Matrimonial Proceedings Act of 1973. But if the mother changes her domicile and leaves the child in the former country, the domicile of the child does not change with that of the mother. In Re Beaumont, the widower left her child in the former country (Scotland) and went to England to marry an English man. The court held that the child’s domicile remained Scottish and did not change to English like that of the mother. Note also that From the moment of adoption, the child acquires the domicile of the adoptive parents.
- Wives: before 1974 a wife took the domicile of her husband until divorce or death. Section 1 of the Act empowers a married woman to have her own domicile-IRC V Duchess of Portland.
Domicile of choice: is acquired where a person establishes residence in a place with intention to permanently or indefinitely remain there.
The requirement of residence and intention shall be discussed briefly.
Residence: Residence is the physical presence and habitation in a place-Ramsay V Liverpool Royal Infirmary.
:: The test here is objective and easy to establish.
:: Residence needs no particular duration– Bell V Kennedy. However, a visitor cannot be called a resident; in IRC V Duchess of Portland, the court held that the operational (10-12 weeks) presence in Quebec was not sufficient to acquire a domicile of choice.
:: Initially, residence could not be acquired if presence was unlawful-Plummer V IRC. The more recent cases of Puttick V AG and Mark V Mark contradicts this position.
Intention: is a state of having a purpose in mind. The purpose in the mind of the propositus should be remaining permanently or indefinitely in the place where he is presently resident for the domicile of choice to be acquired.
:: The intention must have been formed freely and independently of external pressure- Udny V Udny. In Re Late Emperor Napoleon Bonaparte, the court held that going to another country to serve prison sentence is not free intention. In Donaldson V Donaldson, job posting to Florida was held not to be intention formed freely.
:: Initially, the courts required that the intention must be unconditional and the propositus must not envisage an event that would cause him to leave-Udny V Udny, Ramsay V Liverpool Infirmary.
:: However, recent cases seem to show that if the contingency or event envisaged is vague and uncertain, the domicile of choice can be acquired. But if the possibility of the event (that would cause the propositus to leave the country or cease residence) occurring is high, the domicile of choice may not be acquired-Re Fuld’s Estates No 3. In Doucet V Geohams Intention to remain in England and return to France if he made a fortune was held to be too vague. Therefore he could acquire English domicile. In Re Furse, intention to remain in England till he becomes incapable of leading an active life was also held to be vague. Similarly, in Lawrence V Lawrence, the intention to remain in Brasil and leave if there was a revolution and things got badly out of hands was held to be vague. It seems like the courts usually pronounce in favour of the acquisition of domicile of choice. Although in another case where the propositus intended to remain in England till his wife dies (then he would return to Canada)… The court held that the contingency (the wife’s death) was certain and he could not acquire domicile of choice.
How can domicile of choice be lost?: Domicile of choice can be abandoned or lost where the propositus leaves the country or place and does not intend to return again-IRC V Duchess of Portland. In Re Lloyds Evans the propositus escaped from Belgium (domicile of choice) to England (domicile of origin)… He died before he could decide on whether to return to Belgium. The court held that he lost his Belgium domicile.
CHANGE OF DOMICILE.
:: The law generally presumes that a person’s domicile has not been changed. The person alleging change of domicile must then prove it- Winnas V AG.
:: As we noted above, it is more difficult to prove change of domicile of origin. The court would look at intention, conducts, facts and circumstances of the case-Drevon V Drevon.
Evidence of change of Domicile: The court can look at the conduct and intention of the propositus, the facts and circumstance of the case-Drevon V Drevon. The following may be indicative factors of change of domicile.
- Long-time residence in a new place.
- Naturalisation as a citizen of the new country. May be strong evidence to show that the person intends to permanently reside there- Wahl V AG.
- Purchase of real property in the place of residence. Although in recent times, people purchase real properties worldwide to resell (as a form of investment rather than for building). Thus purchase of real property may not be indicative of the fact that the person has changed domicile to the place where the real property is located.
- Marriage to a person or creating relationship with the new community- Re Fuld’s Estate, Donalson V Donaldson.
- Establishment of matrimonial home in the country- IRC V Bullock.
NATIONALITY
:: Generally adopted in most Civil law countries[2]… means citizenship of a particular country. Nationality is of limited use in common-law countries… In common law countries, nationality only features in cases of validation of will, recognition of divorce decree where one of the concerned parties is a national of the country where the decree was obtained.
Advantages
- When compared to domicile, it is easier to ascertain.
- It is difficult to change: Thereby reducing forum shopping.
Disadvantages.
- A person can be stateless or have more than one nationality.
- The question may be asked: why would a person who has left his nationality many years ago still be subject to the law of his nationality. For example A Nigerian national who has lived in France for over 40 years.
HABITUAL RESIDENCE:
Is residence coupled with settled purpose or intention of remaining there for the time being. The intention must be voluntary.
The Habitual Residence doctrine was initiated by the Hague Conference of Private International Law and has been widely recognized in matrimonial causes… especially divorce and adoption cases… see; Section 5(2 and 3) of the Domicile and Matrimonial Act, Section 46(1) Family Law Act, Section 47 Adoption and Children Act.
The following points should be noted for Habitual Residence:
- Habitual residence is construed according to the forum law.
- He who alleges habitual residence must prove.
- There should be residence and a mental state of having a settled purpose. In Re J (Abduction Custody Right) the court held that the duration of residence should be an “appreciable period of time”. In Re F (Child Abduction) one month residence in Australia sufficed. However, in Armstrong V Armstrong, 71 days residence was not sufficient. In Re B (Child Abduction), two months was not sufficient… Therefore, it all depends on the facts of each case.
- A person can have more than one habitual residence at the same time. For example, in Ikimi V Ikimi, the couples consistently maintained homes both in England and Nigeria.
- The Child takes the habitual residence of those with parental responsibility over him-Re B (Abduction) Number II. The child’s habitual residence can be changed where both parents’ habitual residence changes or by the order of the court.
- Where parents separate, the child takes the habitual residence of the parent he lives with.
- There is no concept of loss or revival of habitual residence.
- The habitual Residence doctrine is used for jurisdictional purposes.
[1] An abandoned baby.
[2] Just like domicile is generally adopted common law countries.
