24 J.L. Pol'y & Globalization 1 (2014)

handle is hein.journals/jawpglob24 and id is 1 raw text is: 


Journal of Law, Policy and Globalization                                                     wwwiisteorg
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online)
Vol.24, 2014                                                                                       lISlE


Domicile - A Critical Analysis Of The Position In Cheshire, North

                      & Fawcett Private International Law


                                    CHIGOZIE NWAGBARA, LL.M
                          LAW AUTHOR & LECTURER, FACULTY OF LAW,
                      NIGERIA POLICE ACADEMY, WUDIL - KANO, NIGERIA.
                             Email: hichibab@vahoo.com, +2348033335091
ABSTRACT
This paper critically examines the concept of Domicile, the General Rules, makes clear the position of Prisoners,
Married women, Refugees, Fugitives from justice, Fugitive debtors, Invalids, Corporations. It contrasts the
domicile of origin concept from the domicile of choice and suggests that the concept of domicile should be
abolished in favour of nationality since they should be defined to mean the same thing.
It introduces a purely new dimension to the concept of domicile stating reasons why every person should have
only one domicile at any point in time. It tells us that the idea is very workable and that the concept of revival of
domicile of origin should be done away with; while there should be no distinction between domicile and
nationality. At the end of the paper, we get to know why dual nationality should be expunged globally.
Keywords: Domicile, Nationality, Dual citizenship, Residence, Propositus, Child,
           domicile of origin, domicile of choice, Status, personal Rights, Property

                                  INTRODUCTION
                                        2
According to the Oxford dictionary of Law , a person can be said to be domiciled in a country which he treats as
his permanent home, and to which he has the closest legal attachment. A person cannot be without a domicile
and cannot have two domicile at once 3. At birth, he acquires a domicile of origin which is normally his father's
domicile. He retains his domicile of origin until (if ever) he acquires a domicile of choice in its place.
In England, it has long been settled that questions affecting status are determined by the law of the domicile of
the Propositus, and such questions are those affecting family relations and family property4. There are currently
two main classes of domicile namely the domicile of origin and domicile of choice. The domicile of origin is
acquired at birth, and in this case, could be the domicile of the father or that of the mother, according as he is
legitimate or illegitimate .

The domicile of choice is acquired at any time after a person has become of full age and capacity with the
intention of making a country his permanent base, and it can always be replaced at Will by a new domicile of
choice6.
The concept of domicile is not uniform throughout the world. Lord Cranworth in Whicker v. Hume7 said ...... by
domicile, we mean the home, the permanent home, and if you do not understand your permanent home, I am
afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it'.
Therefore, the acquisition of a domicile of choice requires not only residence in a territory subject to a distinctive
legal system, but also an intention to remain there permanently. Permanently here refers to lasting or designed to
last indefinitely without change. This best describes the nature of intention necessary for a change of domicile
and most Judges seem to have recognized this definition8.

Scarman J. said a domicile of choice is acquired only if it be affirmatively shown that the Propositus is resident
within a territory subject to a distinctive legal system with the intention formed independently of external


1 J.J Fawcen & J.M Carruthers (14'h Edition, Oxford University Press) 2008
2 @p.177 (61h Edition) Oxford University Press, 2006
3 Mark v. Mark (2005) UKHL42@[37]; (2006) 1 AC 98; IRCv. Bullock (1976) 1 WLR 1178@1184; Lawrence v. Lawrence
(1985) Fain 106@ 132
4 Cheshire, North & Fawcett Private International Law (14h Edition, Oxford University Press) 2008
5 An illegitimate child acquires the domicile of his mother; Udny v. Udny (1869) 1 Sc & Div 441 @457
6 Oxford Dictionary of Law (6h Edition), Oxford University Press 2006 @ 177
7 (1858) 7 HL Cases 124 @160
 Cheshire, North & Fawcett @ 159

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