Udny v. Udny

Domicile is the connecting factor that carries most of this module — capacity to marry, legitimacy, recognition of an adoption, and matrimonial jurisdiction in the classical rule all run on it. Udny supplies two of the three rules that govern it: that no person is without a domicile, and that the domicile of origin, being the creature of law, revives when a domicile of choice is abandoned without a new one being acquired.

It also supplies the rider that decides most problem questions: residence must be freely chosen. A person who is somewhere because of office, creditors or illness is not acquiring a domicile there.

Colonel Udny had a Scottish domicile of origin and was born at Leghorn. He lived in London until 1844, then left for France to escape creditors, and never acquired a French domicile of choice.

Lord Westbury on the first rule:

"It is a settled principle of law that no man shall be without a domicile, and to secure this result the law attributes to every individual, as soon as he is born, the domicile of his father if he be legitimate"

and on the special quality of the domicile of origin:

"as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles, of which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished."

On domicile of choice:

"Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the intention of continuing to reside there for an unlimited time."

with the rider that "There must be residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness".

On the facts, Udny had abandoned any English domicile by leaving for France, and his Scottish domicile of origin revived.

Step one: the system needs a gap-filler. Every person must have a domicile at every moment, because too much law depends on it. The domicile of origin is assigned by law at birth — a legitimate child takes the father's domicile at the date of birth, an illegitimate child the mother's — and its real function is structural: it "acts as a fall back, whenever there is no other domicile, it comes to fill the gap."

Step two: distinguish the two kinds of domicile by their source. A domicile of choice is the party's own act, an inference the law draws from voluntary residence plus intention. The domicile of origin is the creature of law, independent of the party's will. What the party did not create, the party cannot destroy.

Step three: so it is suspended, not extinguished. Acquiring a domicile of choice suspends the domicile of origin; it does not obliterate it. Abandon the domicile of choice without acquiring another, and the domicile of origin revives automatically. That is what keeps the first rule true: without revival there would be moments with no domicile at all.

Step four: test the residence for voluntariness. Udny's flight to France was dictated by the demands of creditors, so no French domicile of choice was acquired; and the same rider explains Winans v. AG, where a man with a Maryland domicile of origin sent to England for his health lived there until he died without abandoning Maryland. A prisoner likewise "will continue to retain the domicile that he possessed before his imprisonment", imprisonment being the paradigm of residence dictated by external necessity.

It opens: Define domicile and state its kinds; Explain the rule of revival with case law; and any problem where a person leaves the country of a domicile of choice and dies or sues before settling anywhere else.

Say the two ingredients in Latin: the fact of residence (factum) and the intention to reside (animus), a domicile of choice being acquired by a person of full age and capacity "by residing in a country with the present intention of making it his permanent home".

Pair it with the cases that show residence is not enough. Winans — residence for health is not settlement. Ramsay v. Liverpool Royal Infirmary — thirty-six years in Liverpool and death there at eighty-two, and still no domicile of choice, because "he would have moved from England if those members of his family with whom he was living had decided to move." Residence is evidence of intention, never a substitute for it.

Then bring it to India. Kedar Pandey adopts this learning and settles the Indian test at "the only intention required for a proof of a change of domicile is an intention of permanent residence", rejecting the heavier test of Moorhouse v. Lord, which had required a change of national allegiance.

And for the distinction from citizenship, D.P. Joshi v. State of Madhya Pradesh quotes Udny for the proposition that "The law of England, and of almost all civilised countries, ascribes to each individual at his birth two distinct legal statuses or conditions", before holding that "citizenship and domicile represent two different conceptions" — citizenship going to political status, domicile to civil rights.

It does not decide: the domicile of dependence rules for married women, which come to the Indian student through ss. 15 and 16 of the Indian Succession Act and the unity-of-domicile cases; nor the fugitive cases, where a domicile of choice may be acquired if links are genuinely intended, and Puttick v. AG shows one where it was not.