Domicile and Residence

AuthorStephen G.A. Pitel; Nicholas S. Rafferty
Pages9-28
CHAPTER
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
differing
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.
An
alysis
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
in
dividual
s
personal
law,
thought
to
be
the
law
of
the
place
to
which
the
individual
has
the
closest
ongoing
connection.
The
notion
was
that
individuals
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
personal
status.
This
approach
was
important,
for
example,
under
Roman
law
as
people
travelled
across
the
empire.
There
are
several
dif
ferent
ways
that
an
individual
s
personal
law
can
be
ascertained.
Civil
law
systems
frequently
use
the
concept
of
nationality
or
citizenship,
which
can
be
formally
acquired
in
different
ways.
However,
these
have
9
10
CONFLICT
OF
LAWS
not
tended
to
be
used
in
common
law
systems,
which
instead
have
used
the
concepts
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
individual
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
indefinitely.
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
difficult
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
individual
s
personal
law
and
thereby
linking
an
individual
to
a
particular
legal
sys
tem,
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
domi
cile
for
a
particular
purpose,
it
must
identify
a
single
domicile.
1)
Domicile
of
Origin
The
development
of
the
concept
of
domicile
of
origin
is
largely
shaped
by
the
rule
that
no
individual
may
be
without
a
domicile
at
any
par
ticular
time.
4
It
must
always
be
possible
to
identify
a
person
s
domicile
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,
afPd
2011
ABCA
1
at
para
19.
This
gives
domicile
a
conceptual
ad
vantage
over
citizenship,
since
many
people
are
citizens
of
more
than
one
country.
3
This
illustrates
another
advantage
that
domicile
has
over
citizenship,
as
this
concept
is
less
meaningful
in
the
context
of
federal
countries.
4
Udny,
above
note
2.

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