Domicile of Choice in English Law: An Achilles Heel?

Journal of Private International Law (2015) Vol 11, No 2, pp1-27

UNSW Law Research Paper No. 2015-60

29 Pages Posted: 18 Sep 2015

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

Date Written: September 17, 2015

Abstract

This article examines the conceptual and functional difficulties associated with the English common law conception of domicile. It outlines the judicial challenges involved in verifying a domicile of choice in cases varying from the legitimacy of a marriage, to the validity of a will in the law of succession. The article challenges the existing approach used in establishing domicile on the grounds that the prevailing domicile test is often illusive. Specifically, the test encourages sham domicile claims because domicile determinations are often difficult to predict. To improve the existing practice, the author argues against counting physical and personal points of connections between a person and another place on the grounds that checklist requirements are unduly mechanical and lead to unpredictable results. The article further proposes replacing domicile with a residence test based on a person's continued residence in a jurisdiction. It argues that such residency base test can include a person's subjective choices as a secondary line of inquiry. However, the primary inquiry should concentrate on that person's physical residence and not his/her choice of a domicile.

Keywords: domicile of origin, domicile of choice, habitual residence, residency test, permanent home, English Law, Law Commission, EU Succession Regulation, EU Maintenance Regulation, Brussels II Regulation

Suggested Citation

Trakman, Leon, Domicile of Choice in English Law: An Achilles Heel? (September 17, 2015). Journal of Private International Law (2015) Vol 11, No 2, pp1-27, UNSW Law Research Paper No. 2015-60, Available at SSRN: https://ssrn.com/abstract=2661841

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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