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Domicile of choice is a legal concept in English and Welsh law that refers to the domicile acquired by an individual through their own choice and intention. It is distinct from domicile of origin or dependence, which are acquired at birth or through legal dependency on another person.
To establish a domicile of choice, an individual must demonstrate both physical presence and the intention to make a particular country their permanent home. The intention to remain indefinitely in the chosen country is a crucial element in determining domicile of choice.
Key cases surrounding domicile of choice in English and Welsh law include:
- Udny v. Udny (1869): This case established the principle that to acquire a domicile of choice, an individual must have both the intention to reside permanently in a particular country and the physical presence to give effect to that intention. The court emphasised that mere intention without corresponding action is not sufficient to establish a domicile of choice.
- Re F (A Child) (2015): This case clarified the approach to determining the domicile of a child. It held that a child’s domicile is presumed to follow that of their parents, but this presumption can be rebutted if the child has acquired a domicile of choice of their own.
- A v. A (No. 2) (2018): This case involved a dispute over the domicile of a husband who had moved to England from Russia. The court emphasised that the acquisition of a domicile of choice requires a settled intention to reside permanently in the chosen country, and that intention must be genuine and not merely a temporary or conditional intention.
- B v. B (2019): This case involved a dispute over the domicile of a wife who had moved to England from the United States. The court emphasised that the burden of proof lies with the party asserting a change of domicile and that the evidence must establish a clear and settled intention to reside permanently in the chosen country.
These cases highlight the importance of both intention and physical presence in establishing a domicile of choice. The courts carefully consider the facts and circumstances of each case to determine whether an individual has acquired a domicile of choice in England and Wales.
It is important to note that establishing domicile can be complex, and the specific facts and evidence in each case are crucial. If you have questions or concerns regarding domicile of choice in your specific situation, it is advisable to seek legal advice from a family law solicitor who can provide guidance based on the relevant laws and precedents.
If you are looking to divorce in the UK and are uncertain of your status and whether or not you satisfy the “domicile of choice” provisions, Alexander JLO solicitors can help. Why not give one of our expert divorce lawyers a call on 020 7537 7000 or email peter@london-law.co.uk and see what we can do for you?
This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 5th October 2023 and is correct at the time of publication. With decades of experience in almost all areas of law, Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found Here
Hi.
I am a Filipino citizen currently with indefinite leave to remain in the UK. I married in the Philippines twelve years ago but now want to divorce and remarry in the UK.
It is not possible in my country as divorce is not allowed. Can I divorce my husband in the UK?
Thank you for your interest in our blog, Stephanie.
You can divorce in the UK if you are habitually resident or domiciled here. There may be timing requirements depending upon your circumstances and where your spouse resides.
To be habitually resident in a country, your day to day life happens there. For example, you are classed as an habitual resident in the UK if your main place of work is based there, your children attend UK schools and most of your hobbies, friends and activities take place in or around the UK. Your current immigration status suggests that you are habitually resident.
Your country of domicile, on the other hand, is the nation you consider your permanent home. This may be the country in which you were born (in your case the Philippines) however, you can change where you are domiciled (known as ‘domicile by choice’). Perhaps you were born in Manila but have lived in England for many decades and you consider it your home. In such cases, England, rather than the Philippines, is your country of domicile. Once again, your immigration status suggest that you consider the UK as your country of domicile by choice. It is important to stress that if either of these two aspects of domicile of choice was to change, this may have an impact upon the jurisdiction of the English Courts in relation to your marriage in the Philippines.
A divorce in the UK would then allow you to remarry in the UK if you wished to do so.
It is worth pointing out though that your UK divorce may not be recognised in the Philippines and it is worth enquiring with a lawyer in that jurisdiction as to its status there.
If I can assist you any further on this matter please give me a call on 020 7537 7000 or email guy@london-law.co.uk.
Guy Wilton
Specialist Family Lawyer