Domicile of choice in English law: an Achilles heel?

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 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 connection 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 a residency-based 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.