CHAPTER 2 Domicile and Residence

• Date: 07 April 2025

10

CHA PTER 2

DOMICILE AND

RESIDENCE

A. INTRODUCTION

Chapter 1 identif‌ied the three fundamental questions in the conf‌lict

of laws, and the f‌irst question is addressed starting in Chapter 5. This

chapter and the two that follow deal with subjects that cannot easily

be encompassed by one of the three fundamental questions. These

chapters deal with subjects that are relevant, in diering ways, to each

question, and so it is useful to consider them separately. Despite where

they appear in this book, it is not essential that they be considered

at the outset. Analysis of these subjects could be postponed until

they become relevant to a specif‌ic conf‌licts problem. This chapter is a

good example. Domicile and residence are quite important in certain

areas — the former in the law of succession and the latter in family

law, among others — but often play only a small role in corporate and

commercial cases.

The conf‌lict of laws has long been interested in identifying an indi-

vidual’s “personal law,” thought to be the law of the place to which the

individual has the closest ongoing connection. The notion was that indi-

viduals carried their personal law with them, as a part of them, wherever

they went in the world and that it governed issues relating to their per-

sonal status. This approach was important, for example, under Roman

law as people travelled across the empire. There are several dierent

ways that an individual’s personal law can be ascertained. Civil law sys-

tems frequently use the concept of nationality or citizenship, which can

Domicile and Re sidence 11

be formally acquired in dierent ways. However, these have not tended

to be used in common law systems, which instead have used the con-

cepts of domicile and residence.

B. DOMICILE

There are three main types of domicile, each of which may be obtained

by an individual according to a complex set of rules.1 First, a “domicile of

origin” is ascribed to every individual at birth. This domicile stays with

the individual for life and is the most tenacious. Second, once an individ-

ual reaches the age of majority, he or she is free to adopt a “domicile of

choice” by taking up residence in a particular country and intending to

remain there permanently. Third, individuals who are legally dependent

on another will be ascribed the domicile of that other person as their

“domicile of dependency.” Each of these is discussed in detail below.

The rigid requirements of the types of domicile often make it dicult

to ascertain an individual’s domicile at a particular time in his or her

life. In addition, several rules regulate any change between the types of

domicile.

Because domicile is used as a means of identifying an individ-

ual’s personal law and thereby linking an individual to a particular

legal system, the central rule is that an individual may have only one

domicile at any given time.2 More technically, an individual may have

only one domicile for a particular purpose at any given time. This is

especially true in a federal country such as Canada.3 Depending on

which level of government — federal or provincial — has jurisdiction

to regulate an issue, an individual can be domiciled in both Canada

and in Ontario. Nevertheless, when a court is required to identify an

individual’s domicile for a particular purpose, it must identify a single

domicile.4

1 In the context of the analysis of domicile, the individual concerned is sometimes

called the “propositus.”

2 Udny v Udny (1869), LR 1 Sc & Div 441 (HL) [Udny]; Re Foote Estate, 2009

ABQB 654 at para 23, a’d 2011 ABCA 1 at para 19; Scott v Vanston, 2016 SKCA

75 at para 63, rev’g 2014 SKQB 64 [Scott]. This gives domicile a conceptual

advantage over citizenship, since many people are citizens of more than one

country.

3 This illustrates another advantage that domicile has over citizenship, as the latter

concept is less meaningful in the context of federal countries.

4 For a summary of the core principles under English law, see Barlow Clowes Inter-

national Ltd v Henwood, [2008] EWCA Civ 577.