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Domicile As a Matter of Common Law

Domicile is an important concept for both general law purposes and for tax purposes. So far as tax is concerned, it has recently become more important in light of the changes made to the deemed domicile rules (to be dealt with in a different post). 

What I am covering in this post is a general overview. Ultimately questions of domicile are fact-sensitive and therefore individuals will want to instruct counsel to assist them in determining questions over their domicile. 

What is a person’s domicile? 
A person’s domicile is most akin to a person’s permanent home. It is the place where they intend to spend the rest of their lives. As will be seen, however, a person can be domiciled in a country even though they do not have their permanent home there. 

What types of domicile are there? 
There are three types of domicile under general law and I will go into each in detail: 
1. Domicile of origin;
2. Domicile of dependency; and
3. Domicile of choice.

What is a person’s domicile of origin? 
A person’s domicile of origin is, in short, the domicile they are born with. What that domicile is will depend on the individual’s particular circumstances. The two most common circumstances will be either a legitimate child or an illegitimate child.

Where the individual is a legitimate child, then their domicile of origin will be the domicile which their father had at the time of their birth.

Importantly, the individual’s domicile is not where they were born – a person can be born in one country with a domicile of origin elsewhere. It is their father’s domicile which will be relevant.

Consider the following example:
John was born in England. His father was born in Spain with a Spanish domicile of origin. Whilst John’s father was living in Spain, he had still retained his Spanish domicile of origin. Therefore, whilst John was born in England, he would have been born with a Spanish domicile of origin. 

Where either a child is born after his father has died or is an illegitimate child, then his domicile of origin will instead be the domicile of his mother at the time of his birth. 

Again, the question that needs to be asked is not the child’s residence, but rather the domicile of the mother. 

There are obviously circumstances which may fall outside these usual rules, for example, more detailed examination is needed in cases of divorce or adoption. 

What is a person’s domicile of dependency? 
A child’s domicile will change with that of their parent until they reach the age of 16. This is their domicile of dependency. In terms of which parent will be relevant, it will be the parent upon which the child’s domicile depends. 

When a person turns 16, they will usually be domicile in the last place of their domicile of dependency. However, they may be able to show that they have acquired a domicile of choice elsewhere. Circumstances during their domicile of dependency can be used to establish where the individual has a domicile of choice upon turning 16. 

What is a person’s domicile of choice? 
A person acquires a domicile of choice through both having residence in a place and also forming an intention to reside there permanently. 

In terms of the question of residence, it is not a very high bar to meet, but it requires more than merely passing through a location. 

In establishing whether a person has the requisite intention, all the circumstances of their life may be considered. As such there is no strict set of requirements that can be met in order to establish if a person has established a domicile of choice in a certain place. 

Statements of a person’s intention can be helpful, but ultimately the corroborating factors will carry significantly more weight in the event of an enquiry.

If you have a domicile issue, what should you do? 
If you are having concerns about your domicile or foresee that you could have concerns in the future, then you should take advice. Taking advice early is recommended as it provides for the maximum amount of time to prepare statements and collate evidence. HMRC have provided a list of documents that they may expect to see in the event of a domicile enquiry at RDRM2380.

If you have concerns about your domicile of origin, then advice should be taken prior to the death of your parents as it can be incredibly helpful to have statements from them. This is especially true if you were born in one of the countries in the UK, but consider that you may not have been born with a domicile of origin there. Given the changes to the rules of deemed domicile, this will be of even more importance.