This article examines the English concept of domicile, explaining why it is important and should not be confused with residency, nationality or immigration status. It also considers the evidence the English Court will examine when a person’s domicile is challenged.
The English concept of domicile is based on English common law, i.e. historic case law, and it is different to what might be understood by the term ‘domicile’ in other jurisdictions, in particular civil jurisdictions where the term domicile for the most part is interchangeable with residency. It is also not uncommon for people, especially internationally mobile HNW individuals and executives, to have a domicile which is different to their residency and/or nationality. The English meaning of domicile can be partly understood as meaning someone’s “permanent home”.
The Law
There are three types of domicile: a domicile of origin, a domicile of choice and a domicile of dependency.
1. Domicile of Origin
In English common law, every person is born with a domicile of origin, which is then their domicile until it is displaced notwithstanding that it is possessed involuntarily. 1 The domicile of origin of a legitimate child born during the lifetime of his father is his father’s domicile at the time of birth.2
For the avoidance of doubt a domicile of origin cannot be chosen and can only be lost if a new domicile of choice (see paragraph 2 below) is acquired. A person’s domicile of origin remains their default domicile for their entire life but can in certain circumstances revive if a person’s domicile of choice is abandoned (see paragraph 3 below).
2. Acquisition of Domicile of Choice
Once 16 years old, a person may displace their domicile of origin by acquiring a domicile of choice. A person acquires a domicile of choice in another jurisdiction by residing there with an intention to do so permanently or for an unlimited time.3 Therefore, there are two distinct parts to acquiring a domicile of choice, namely:
- the individual must physically reside in their country of choice (rather than be a mere traveller or occasional visitor)4; and
- have an intention to reside in that jurisdiction permanently and indefinitely, which intention is not limited for a particular period or particular purpose.5
It is the second limb of this test which can mean a domicile of choice is hard to obtain despite many years or even decades of residency in a foreign jurisdiction. Direct evidence that the individual in question intended to reside permanently in his chosen jurisdiction of residence is required before s/he can definitively be said to have lost his or her domicile of origin and acquired a new domicile of choice. This notwithstanding:
- If a person determines to spend the rest of his life in a jurisdiction, then he has the necessary intention, even if he does not consider that decision to be irrevocable.6 The absence of any intention to leave may suffice.7
- It will not be sufficient if there is an intention to return to the jurisdiction of previous domicile at some point, so that although present residence is indefinite, it is not unlimited in time, unless that intention is so vague as not to be properly formed.8
3. Loss of Domicile of Choice
If a domicile of choice is never acquired, or is acquired but then abandoned, the domicile of origin will prevail (i.e. revive).9
A domicile of choice is abandoned by giving up both the residence and the intention necessary for its acquisition in the first place.10
4. Domicile of Dependency
This concept is less relevant today but is still worth bearing in mind:
- Legitimate children up to the age of 16 are dependent on their father’s domicile, as set out above. Where a child is born out of wedlock or their father is deceased, they may take on their mother’s domicile.
- Women who were married before the Matrimonial Causes Act 1973 came into effect in 1973 took on their husband’s domicile.
Why is Domicile Important?
The English concept of domicile matters because it determines which legal system has the strongest claim over a person’s life for core issues such as taxation, succession, and jurisdiction. It is far more enduring than residence and often decisive in private wealth disputes.
Tax
Domicile is central to determining an individual’s exposure to UK taxation, particularly inheritance tax. It dictates whether a person is taxed on their worldwide estate or only on UK-situated assets, and it governs access to favourable regimes historically available to non-UK domiciled individuals. Because domicile is difficult to change and heavily intention-based, it often becomes a decisive issue in tax planning and disputes involving internationally mobile clients.
Succession
In cross-border estates, domicile determines which country’s succession laws apply on death. This can affect the validity of wills, the distribution of assets, and the interaction with forced-heirship regimes overseas. In contentious private wealth matters, establishing a deceased’s true domicile frequently shapes the entire litigation strategy, as it may determine both the applicable law and the rights of competing beneficiaries. For example, to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the deceased must have died domiciled in England and Wales.
Family Law
Domicile also plays a significant role in family law, influencing jurisdiction for divorce, financial relief, and the recognition of foreign marriages or divorces. Because domicile is treated as a person’s “personal law,” it can affect questions of capacity and personal status. Its enduring nature means that domicile often anchors jurisdiction even when individuals have lived in multiple countries.
How to Challenge Domicile
Where domicile is in dispute, it must be determined by the English Court, which will normally order a hearing so that it can review all the facts and come to a decision. The burden of proof for proving that an individual has acquired domicile of choice is that of the person or entity alleging it.11
Domicile disputes are very fact sensitive and judges have a wide amount of discretion to decide them. Therefore, trials regarding domicile can be unpredictable and each case will turn on its own specific facts.
However, the court will tend to examine the following categories of evidence before making an overall assessment on the balance of probabilities:
Family Background: the court will want to review a person’s family background in detail including the birthplace of parents and grandparents. It will also examine marriages, divorces and conduct a careful review of where the person in question lived as a child and with whom. The court will also examine a person’s current family including the birthplace and nationality of any spouse and children. Family ties are also important and the court will look to understand where close family members reside and where a person’s children are educated, as this can indicate where a person’s ‘domicile’ or ‘permanent home’ might be.
Physical Presence: the court will want a full history of where the person in question has lived and why, i.e. for school, work etc. Dates of residence in a particular country and intention regarding residence there will be examined. The court will also examine residency, where a person pays taxes and what citizenship they hold. It will also require information on visits to a person’s country of birth and will want to examine a person’s relationship with their country of origin.
Property and Assets: the court will want to know where a person owns property and hold assets. This includes the location of any family home, pensions, bank accounts, investments etc. The analysis can be quite granular and the court may go as far as to examine which bank accounts etc. are or have been used most frequently to understand where a person has been resident or visits most frequently.
Social Ties: the court will even go as far as examining a person’s social ties, including if they belong to any clubs, what football team they support and where their registered doctor and dentist are located. They will also look to understand where a person has voted and what causes or interests he or she support.
Therefore, for highly mobile individuals, a domicile challenge is likely to involve a significant examination of their personal life. Small and seemingly insignificant details can make all the difference and should not be underestimated.
The Private Wealth Disputes team at Quastels LLP are adept at advising clients on all aspects of domicile, including when to issue or defend a domicile challenge.
- Udny v Udny (1869) LR 1 Sc & Div 441, 457-8. ↩︎
- Forbes v Forbes (1854) Kay 341. ↩︎
- Gulbenkian v Gulbenkian [1937] 4 All ER 618, 626–7. ↩︎
- Inland Revenue Commissioners v Portland [1982] Ch 314. 318–9. ↩︎
- Udny v Udny, supra. ↩︎
- Inland Revenue Commissioners v Bullock [1976] 1 WLR 1178, 1183, 1184. ↩︎
- Bell v Bell [1922] 2 IR 152. ↩︎
- Qureshi v Qureshi [1972] Fam 173, 191_2; Henderson v Henderson [1967] P 77, 80–1. ↩︎
- Re Fuld deceased (No.3) [1968] P 675, 682, 684–5. ↩︎
- Udny v Udny, supra, 450. ↩︎
- Moorhouse v Lord [1863] 10 HL Cas 272 ↩︎
