Domicile

- In PIL, questions affecting personal status should be governed by one law,

regardless of location or where the relevant facts occurred.
- There is disagreement on the scope of personal law and the criterion for
determining it, such as domicile, nationality, habitual residence, or another
connecting factor.
- Domicile, a common law concept with origins in Roman law, has been
influenced by both in Maltese law.
- Maltese courts initially applied the Roman law concept of domicile, later
switching to the common law concept with some local adaptations.
- Domicile is the place where one has the centre of activities,
interests, and fortune.
- Changing residence does not change domicile unless the centre of
activities is established in the new place.
- Domicile involves free will, residence, and the intention to make a place one's
principal residence.
- Both residence and intention are necessary to establish domicile.
- Intention is inferred from daily living practices and personal conditions, with
property ownership being a significant factor unless evidence suggests
otherwise.
- A voluntary and express declaration of intention to make a place one's
domicile is paramount evidence of such intention.

Under Roman Law

- In Roman law, some individuals had their domicile fixed independently of

their will, known as domicilium necessarium.
- A child acquired the domicile of their father.
- A wife acquired the domicile of her husband.
- A widow retained her husband's domicile until she acquired a new one
voluntarily or through remarriage.
- Every person had a domicile fixed at birth.
- Roman jurists debated whether a person could have more than one domicile
or none.
- Eminent Roman jurists Paul and Ulpian believed it was possible for a person
to have two domiciles or no domicile.
- A domicile conferred at birth could be replaced by a new domicile of choice.
- Abandonment of any domicile, original or subsequent, left a person without a
domicile until a new one was acquired.

Under Common Law: The 5 General Rules

- At Common Law, questions affecting status are determined by the law of the
domicile of the propositus.
- Such questions include those affecting status, family relations, and family
property.
- A person's domicile refers to their permanent home.
- The test determining a person's domicile remains constant, regardless of the
nature of the issue before the court.

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 1. Nobody Shall Be Without a Domicile

- The law assigns a domicile of origin to every person at birth.

- This domicile of origin remains until a new domicile is acquired.
- If a person leaves their country of origin, the domicile of origin persists until
they settle in another country with a clear intention of never returning.

2. A Person Cannot Have 2 Domiciles

- The rule of domicile is intended to establish a clear legal system to govern

rights and obligations.
- As a person's life may involve multiple countries, this rule is necessary for
practical reasons.
- Domicile signifies a connection with a "law district," a territory under a single
legal system.
- In federal states like the USA, there is no national domicile, but rather
domicile in one of its states.

3. The Fact that Domicile Dignifies Connection with a Single System

of Territorial Law Does Not Connote a System that Prescribes
Identical Rules for All Classes of Persons

- In India, different legal rules apply to various classes of the population based
on religion, race, or caste.
- Despite these differences, the territorial law of India governs everyone
domiciled there.
- Hindu law may apply to one person and Muslim law to another, but both are
governed under the overarching Indian legal system.

4. There is a Presumption in Favour of the Continuance of an Existing

Domicile

- The burden of proving change lies on those alleging a change has happened.

5. The Domicile of a Person is to be Determined by the English Concept of

Domicile

Acquiring a New Domicile

- Factum: residence in another territory

- Animus: the intention of remaining there permanently
- These two elements must concur, but unity of time is not necessary.
- The intention may either precede or succeed the establishment of residence.
- Residence and intention are separate but interrelated concepts; residence is a
fact from which intention may be inferred.
- The length of residence is a material consideration but not decisive;
everything depends on the surrounding circumstances.
- To constitute domicile, residence must be voluntary and a matter of free
choice, not constraint.

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 - Imprisonment in a foreign country is a clear example of constraint preclusive
of this freedom; a prisoner, except perhaps for one transported or exiled for
life, retains the domicile he had before confinement.
- Acquisition of a domicile of choice requires an intention to remain
permanently in the territory of residence.
- Intended residence must not be for a limited period, whether expressed in
time or dependent upon a contingency, such as the completion of a task.
- If the termination of residence is contingent, it does not prevent domicile
acquisition unless the contingency is unambiguous and realistic (e.g., end of a
job).
- If a contingency is not clear, it cannot prevent acquiring a domicile of choice.
- If a contingency is identifiable, it must be determined if there is a substantial
possibility of it occurring; if so, this prevents domicile acquisition.
- English courts have not always required that a contingency be more than a
vague possibility to prevent domicile acquisition.
- A precise formula for the intention required by common law for domicile
acquisition is impossible to construct.
- Lord v Colvin (1859):
o Kindersley VC stated that a domicile is where a person has voluntarily
fixed their home, not for a temporary purpose, but with a permanent
intention of making it their permanent home unless an unexpected or
uncertain event occurs to induce a change.

Other Rules

- The burden of proving a change in domicile rests on the individual claiming it.
- There is a presumption favouring the continuity of the domicile of origin.
- Establishing the abandonment of a domicile of origin in favour of a new
domicile requires stronger evidence than proving a change between two
domiciles of choice.

Domicile of Dependence

- Certain individuals have their domicile fixed by law, such as children and
mentally ill persons.
- A legitimate child born during their father's lifetime acquires the father's
domicile.
- An illegitimate child or one born after the father's death takes the mother's
domicile.
- A foundling's domicile is where they are found.
- If an illegitimate child is later legitimized, they adopt their father's domicile
from the date of legitimization, although their domicile of origin likely
remains their mother's.
- Once acquired, the domicile of origin remains constant throughout life.
- A child's domicile automatically changes with any change in the domicile of
the parent upon whom the child's domicile depends, regardless of whether the
child's residence has also changed.
- When a child acquires a domicile due to a parent moving to another country,
it's considered a domicile of quasi-choice, while the domicile of origin remains
unchanged from birth.
- This can be significant later in the child's life.

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 - Upon the death of the father, the general rule is that a child acquires the
mother's domicile.
- A mentally disordered person cannot change their domicile because they lack
the capacity to form an intention or have their domicile changed by their
caregiver.
- Like children, the domicile of the father is attributed to a child of unsound
mind during their childhood.
- In most cases, both the wife and husband independently acquire the same
domicile.

The Issues

- Originally, domicile was equivalent to its Common Law concept, but over
time, case law has modified and refined this concept.
- Critics have identified several flaws:
o There's an exaggerated emphasis on the domicile of origin, combined
with the technical doctrine of its revival, which can assign a person a
domicile in a country where they may never truly belong.
o Another irrational outcome can arise from the notion that long
residence isn't equivalent to domicile if it's conditional on some
uncertain event that might end the residence.
o Determining an individual's domicile relies heavily on proving their
intention, which is the most elusive factor of all.
▪ This often makes it impossible to identify with certainty without
resorting to legal proceedings.

The Roman Concept vs the English Concept

- There are three main similarities between the two concepts:

o Domicile is constituted by the fact of residence and the requisite
intention.
o At birth, children acquire the domicile of the father.
o Married women acquire the domicile of their husband.
- The Maltese courts have unquestionably accepted these three rules, regardless
of which concept is generally adopted.
- Common law does not permit a person to have more than one domicile,
whereas Roman law accepts the possibility of multiple domiciles.
- Common law asserts that a person always retains a domicile of origin in
abeyance, ready to revive if a domicile of choice is abandoned, which differs
from Roman law.
- Common law requires stronger evidence to abandon the domicile of origin
compared to Roman law, which acknowledges the concept of being without a
domicile.
- In common law, intention includes both a positive (to acquire a new domicile)
and a negative (to never return to the previous domicile) sub-element.
- Roman law focuses solely on the positive intention of acquiring a new
domicile, without considering abandonment of the previous domicile.

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Under Maltese Law

- Maltese courts initially applied a Roman Law basis for domicile, later
adopting a Common Law concept, particularly in domicile matters.
- The term "forestieri domiciliati a Malta" in the Code de Rohan (1784)
indicates Malta had its own concept of domicile independent of English law,
derived from Roman law.

- Article 1316 of the Civil Code applies the community of acquests if

spouses "establish themselves in these Islands", suggesting a lower threshold
than the common law concept of domicile.
- "Establishing a home" under Maltese law differs from the common law notion
of permanent residence and does not necessarily imply an intention to settle
permanently in Malta.
- Sir Adrian Dingli noted that Article 1316 of the Civil Code, while his own
creation, draws on concepts from the Code de Rohan, which already included
a domicile concept rooted in Roman law.
- Article 28 of the Code de Rohan addressed "the marriage of foreigners
domiciled in this domain."
- Distinguishing between domicile as a jurisdictional factor and domicile as a
choice of law factor is crucial.

- Section 742(1) of the Code of Organisation and Civil Procedure establishes

Maltese court jurisdiction over:
o Citizens of Malta who haven't established domicile elsewhere.
o Any person domiciled, resident, or present in Malta.
- Section 742 was inspired by Article 4 of the Italian Codice di Procedura Civile,
reflecting Continental (Roman law) concepts rather than common law.

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 - Section 827 of the COCP addresses the recognition and enforcement of non-
EU foreign judgments in Malta.
- It states that Maltese courts will assess foreign court jurisdiction based on the
defendant's domicile, residence, or voluntary submission.
- If none of these criteria apply (e.g., the defendant is only a national of the
country where the judgment was issued), Malta will not enforce the foreign
judgment.
- The Maltese court examines whether the foreign court exercised jurisdiction
appropriately before deciding on recognition and enforcement.

The European Union

- Regulation (EU) No 1215/2012, also known as Brussels I, governs jurisdiction,

recognition, and enforcement of civil and commercial judgments within the
EU.
- Article 4 of the Regulation establishes that individuals domiciled in an EU
Member State can be sued in the courts of that Member State.
- There is uncertainty whether all EU Member State courts interpret domicile
consistently, as the Regulation does not provide a definition for individuals
but does so for corporate entities.
- Article 60(1): Courts determine domicile using their internal law for parties
within their jurisdiction.
- Article 60(2): If not domiciled in the court's Member State, the law of the
domicile's Member State applies.
- Article 63(1): Companies are domiciled where they have their statutory seat,
central administration, or principal place of business.
- Article 63(2): In Ireland, Cyprus, UK, "statutory seat" is the registered
office, place of incorporation, or place of formation under applicable laws.
- These rules establish how domicile is defined and applied within the EU
framework, especially concerning jurisdiction in legal matters.
- Malta was not included in the recast of 2012 (like Cyprus), despite following
the rule that a company is domiciled where it is incorporated.
- Art. 63(3): Courts determine the domicile of a trust in the Member State
based on their own private international law rules.

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 - Maltese Courts may lack jurisdiction over Maltese companies under EU Law if
they are not domiciled according to the EU definition.
- Until the late 1930s, Maltese judgments primarily applied the Roman law
concept of domicile.
- The transition to the English common law concept began in the late 1930s,
prior to which Maltese courts developed principles favouring the Roman law
concept independently of common law.

Principles

1. The intentional element of domicile was defined as "intenzione di fissarvi il

proprio principale stabilito," echoing Roman law without the common law
requirement of not wanting to return to the previous domicile.

2. Acquiring a domicile of choice requires complete voluntariness.

3. There is a presumption of change in domicile after prolonged absence, a rule

absent in both Roman law and common law.

4. Maltese courts have jurisdiction over actions involving individuals domiciled

in Malta and others not domiciled there, if the action is indivisible.

5. Legitimate children acquire their father's domicile, illegitimate children

acquire their mother's, and foundlings acquire the domicile of the place where
they are found.

6. Adults have the freedom to choose their own domicile and residence
independently of their father.

- Smith v Muscat Azzopardi:

o Established the principle in Maltese law to refer to English law
principles in the absence of local provisions on private international
law.
o This principle was not historically consistent as Maltese courts had
previously relied on Roman law and local precedents.
o Introduced the English concept of domicile to interpret "establish
themselves in Malta" under Section 1316 of the Civil Code, contrary to
previous interpretations.
- Saliba v Lawson:
o 4 years before Smith v Muscat Azzopardi, emphasized that Maltese
private international law derives from Roman law and local judgments,
not exclusively English law.
o Clarified that Section 1316 of the Civil Code applies universally to
marriages celebrated in Malta, regardless of the husband's domicile.
- Spiteri v Soler:
o Resolved conflicting interpretations between Saliba v Lawson and
Smith v Muscat Azzopardi.
o Affirmed the principle to refer to English private international law in
Maltese courts for matters not covered by local laws.
o Court of Appeal confirmed that Maltese courts should follow English
rules of private international law where applicable and recognized,

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 stating "our law does not contradict the provisions governing private
international law, and in questions that fall under this law our courts
follow the rules of private international law as they are known and
applied in the courts of England".
- Xerri et v Dr Sladden et:
o Case involving Michael Cassar, a Maltese national who emigrated to
Australia and lived there for 20 years until his death.
o Despite residing in Australia and having an Australian will, he retained
property in Malta and maintained Maltese citizenship.
o Court applied the common law concept of domicile, emphasizing the
presumption of the continuity of domicile of origin.
o Found that there was no evidence Mr. Cassar intended to abandon his
Maltese domicile, especially considering the possibility of returning to
Malta if circumstances changed.
- Chirchop v Dr Frendo Randon:
o Court of Appeal clarified the elements of intentional and probative
factors in domicile:
▪ Presumption favours continuity of existing domicile but change
requires proof on a balance of probabilities.
▪ Intentional element is defined as intending to reside in a place
for an unlimited time, rather than permanently.
▪ Residence establishes a presumption of domicile, but the
duration of residence alone does not determine domicile
acquisition.
- Maltese law allows domicile to be attributed a specific meaning through
special legislation.
- Legislation presumed persons born, residing, or habitually resident in Malta
to be domiciled in Malta, shifting the burden of proof to those alleging a
different domicile for tax purposes.
- Used domicile as personal law to determine status-related questions.
- Common application: Nullity of marriages for Maltese Roman Catholics if not
according to their domicile's law (Canon law).
- Domicile prominent in many Commonwealth jurisdictions but undergoing
retreat.
- Shah v Barnet London Borough Council (1983):
o Criticized complexity and expense of investigating domicile.
- Malta's Current Legal Situation: No legislation defining or reforming the
concept of domicile in Malta yet.

Nationality

- Nationality defines a person's political allegiance to a specific country.

- It depends on place of birth and parentage, alongside naturalization.
- A person may have one nationality but reside in another country.
- During Malta's colonial era, English law governed nationality in the absence of
local legislation.
- Used by Maltese courts to apply the husband's nationality law at marriage for
issues like paternal authority and minority.
- Determines obligations such as maintenance, confirmed in cases like Biasini v
Stagno Navarra and Maria Antonia Resta v Mario Resta.

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 - Challenges:
o Disconnection with country: Individuals may lack a current or
historical connection with their nationality country.
o Statelessness or dual nationalities: Unlike domicile rules which
prohibit statelessness or dual domiciles, nationality can lead to such
statuses.
o Federal states: Nationality cannot always dictate internal laws in
federal states.

Habitual Residence

- Criticism of nationality and domicile as connecting factors has grown, leading

to a shift towards habitual residence.
- Sir Otto Kahn-Freund described domicile in 1964 as outdated.
- International legal instruments, including Hague Conventions, have
increasingly adopted "habitual residence".
- First formally used in a Hague Convention on Civil Procedure in 1895.
- Used in various Hague Conventions, such as the one on the Protection of
Minors in 1961.
- EU Regulations adopting habitual residence include those on contractual and
non-contractual obligations, divorce and separation, matrimonial matters,
parental responsibility, and maintenance obligations.
- Applying laws based on nationality for marriage or will-making purposes can
lead to discrimination against EU residents who are not nationals of that
Member State.
- Habitual residence is often seen as a factual concept rather than a strictly
defined legal term, allowing judges across legal systems to assess situations
based on factual circumstances.
- Despite lacking a precise legal definition, efforts are made by judges and
commentators to analyse and define the scope of habitual residence.
- German courts interpret a child's habitual residence under the Hague
Convention on the Protection of Minors 1961 as the "centre of gravity of its
life".
- Habitual residence, unlike domicile, does not require a specific intention
about the future.
- Evidence of conduct showing substantial links to a country suffices, though
intention can illuminate factual circumstances.
- Habitual residence implies a more than transient or casual stay and persists
through temporary absences once established.
- The EU Court of Justice defines habitual residence in child abduction cases
based on integration into social and family environments, decided by national
courts considering various factors like duration of stay, schooling location,
language use, and family ties.
- In social security matters, habitual residence under EU law reflects a person's
habitual centre of interests, considering factors such as length of residence,
absences, and apparent intention.
- Under the Staff Regulations of EU officials, habitual residence is where one
establishes a permanent centre of interests with lasting intent.
- Habitual residence lacks technical complexities of domicile (e.g., origin or
dependence), reducing uncertainties about intention (animus manendi) and
offering greater flexibility than nationality.