The Requisite Intention for the Acquisition of Domicile of Choice: Permanent or Indefinite – A Comparative Perspective

Abstract

In determining the jurisdiction of court and the applicable law in cases where a choice of law rules is involved, the courts would always seek to find the most common connecting factor that binds the parties to a particular jurisdiction. Various concepts are employed in different jurisdictions in determining the personal law of the propositus and invariably the applicable law and jurisdiction of the courts. In most of the Continental European and other civil law countries, nationality, that is, the law of the country of which the person is a citizen, is the basic connecting factor. In countries that pay much regard to religious adherence such as India and Cyprus, personal law is determined based on the individual’s religion such as Muslim, Hindu or Christian. In most common law countries, domicile is the most important connecting factor. It is a person’s domicile that usually determines which law governs his or her family relations, which court has jurisdiction in matters of his or her status, and whether the judgments of some foreign courts could be enforced against him or her locally. Domicile is also a very important concept in jurisdictions with mixed legal families such as Lesotho and South Africa, where the concepts of Roman Dutch law and Common Law apply equally. There is, however, a disagreement in defining the concept and its scope at common law. In some jurisdictions, the parliament has intervened by enacting statutory provisions aimed at streamlining the concept and its applications within those jurisdictions. Domicile has many facets such as domicile of origin, domicile