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G. The Lex Domicilii Rule
Lex domicilii (Domiciliary principle) - the law of the place of domicile governs
Domicile - place of haitual residence! a place to which" whenever asent for
usiness or for pleasure" one intends to return" and depends on facts and
circumstances in the sense that they disclose intent
#L#$#%T&'
hysical presence
nimus manendi - intention of returning there permanently
**The law of the forum governs the standards of domicile. +f domicile is put in
issue" the court will apply its own laws to determine the controversy.
,. inds of Domicile
+%D&'
Domicile of origin or y irth
Domicile of choice
Domicile y operation of law
+. Rules regarding Domicile
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R/L#&'
man has a domicile somewhere
domicile once estalished remains until a new one is ac0uired
man can have ut only one domicile at a time
,12 %#2 D1$+3+L# +& 34/+R#D'
ctual removal or actual change of domicile
5ona fide intention of aandoning the former place of residence and
estalishing a new one
cts which correspond with such purpose
**ll the foregoing elements must e proved in order to reut the
presumption of 3ontinuity of Domicile.
6. Domicile and Residence
Residence - the actual relationship of an individual to a certain place!
physical presence of a person in a given area" community or country
Residence vs. Domicile
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7Residence8 is used to indicate a place of aode" whether permanent or
temporary! 7domicile8 denotes a fixed permanent residence to which" when
asent" one has the intention of returning. man ma have a residence in
one place and a domicile in another. Residence is not domicile" ut domicile
is residence coupled with the intention to remain for an unlimited time.
man can have ut one domicile for the same purpose at any time" ut he
may have numerous places of residence. ,is place of residence is generally
his place of domicile" ut it is not y any means necessarily so since no
length of residence without intention of remaining will constitute domicile.
(Romualde9-$arcos vs. 31$#L#3" G.R. %o. ::;;
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+&&/#' 2hether or not +melda is deemed to have aandoned her domicile of
origin
,#LD'
n individual does not lose his domicile even if he has lived and maintained
residence in different places. Residence implies a factual relationship to a
given place for various purposes. The asence from legal residence or
domicile to pursue a profession" to study or to do other things of a temporary
or semi-permanent nature does not constitute loss of residence. Thus" the
assertion that 7she could not have een a resident of Tacloan 3ity since
childhood up to the time she filed her certificate of candidacy ecause she
ecame a resident of many places8 flies in the face of settled Aurisprudence
in which this 3ourt carefully made distinctions etween (actual) residence
and domicile for election purposes.
. %ationality and Domicile of 3orporations
**The nationality of a private corporation is determined y the character or
citi9enship of its controlling stocBholders.
**The domicile of a domestic corporation is its principal place of usiness
(contained in the 1+). @or foreign corporations" their domicile is in the
country under whose laws they are incorporated.
C T#&T& T1 D#T#R$+%# @+L++%1 31R1RT+1%'
Grandfather rule - governs the strict application of the ownership of a
corporation (generally =E @ilipino-owned)
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3ontrol test - a corporation that is at least =E @ilipino-owned is considered
a @ilipino for purposes of determining the @ilipino ownership of a corporation
whose nationality is put in issue
31R1RT+1% D1$+3+L#D +% 1%# &TT# 5/T D1+%G 5/&+%#&& +% %1T,#R
+& R#&+D#%T 1@ T,# LTT#R
%orthwest 1rient irlines" +nc. vs. 3" G.R. %o. ::C?
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The domicile of a corporation elongs to the state where it was incorporated.
+n a strict technical sense" such domicile as a corporation may have is single
in its essence and a corporation can only have one domicile which is the
state of its creation. %onetheless" a corporation formed in one state may" forcertain purposes" e regarded as a resident in another state in which it has
offices and transacts usiness.
+n as much as &harp was admittedly doing usiness in 6apan through its duly
registered ranches at the time the collection suit against it was filed" then
in the light of the processual presumption" &harp may e deemed a resident
of 6apan" and" as such" was amenale to the Aurisdiction of the courts therein
and may e deemed to have assented to the said courtFs lawful methods ofserving process.
@1R#+G% 31R1RT+1% D1+%G 5/&+%#&& +% T,# ,+L++%#& +& R#&+D#%T
&tate +nvestment ,ouse" +nc. vs. 3itianB" et al" G.R. %o.
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opposed the petition on the ground that the petitioners are not resident
creditors in contemplation of the +nsolvency Law.
+&&/#' 2hether or not a foreign corporation with a ranch in the hilippinesand doing usiness therein can e considered a resident
,#LD'
@oreign corporations duly licensed to do usiness in the hilippines are
considered 7residents8 of the hilippines" as the word is understood in &ec.
C of the +nsolvency Law" authori9ing at least three resident creditors of thehilippines to file a petition to declare a corporation insolvent. The Tax 3ode
declares that the term 7resident foreign corporation applies to foreign
corporation engaged in trade or usiness within the hilippines8 as
distinguished from a 7non-resident foreign corporation8 which is not engaged
in trade or usiness within the hilippines. The 1ffshore 5anBing Law sates
that' 75ranches" susidiaries" affiliates" extension offices or any other units
of corporation or Auridical person organi9ed under the laws of any foreign
country operating in the hilippines shall e considered residents of the
hilippines.8 The General 5anBing ct places 7ranches and agencies in the
hilippines of foreign anBs8 in the category as commercial anBs" ruralanBs" stocB savings and loan association maBing no distinction etween the
former ad the latter in so far as the terms 7anBing institutions8 and 7anBs8
are used in said ct.
Domicile - the place where a person has certain settled" fixed" legal relationsecause'
it is assigned to him y the law at the moment of irth
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assigned to him y law after irth on account of a legal disaility caused for
instance y minority" insanity or marriage in the case of women
ecause he has a home there
Three Binds of domicile'
Domicile of origin
3onstructive domicile
Domicile y operations of law
Domicile of choice
Domicile vs Residence
Residence is used to indicate a place of aode whether permanent or
temporary
Domicile denotes a fixed permanent residence to which when asent" one
has the intention of returning
rticle ?:' 2hen the law creating or recogni9ing them" or any other provision
does not fix the domicile of the Auridical persons" the same shall e
understood to e where they exercise their principal functions
Rule for determining the domicile of Auridical persons
get the domicile provided for in the law creating or recogni9ing them or in
their article of agreement
if not provided for" get the place'
- when their legal representation is estalished
- on where they exercise their principal functions
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The Law of Domicile
3onflict of Law Group C
+%TR1D/3T+1%
3onflict of laws (or private international law or international private
law as it is sometimes Bnown) is a set of procedural rule that determineswhich legal system and which Aurisdiction apply to a given dispute. The rules
under conflict of laws apply when a legal dispute has a 7foreign8 element
such as a contract agreed to parties in different countries.
There are some certain concepts which are important or are regarded
as a determinative factor in the conflict of laws. &uch concepts include!
domicile and nationality.
The developments of technology and moility from one state or
another rought the emergence of prolems. This is ecause in the process
of moving aout" an individual has to determine which law applies to him" his
marriage" his usiness transactions" etc.
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The development of passports came aout in a id to solve this prolem.
assports act as a connection to a legal Aurisdiction" which people carry
aout wherever they go.
D1$+3+L# %D %T+1%L+T
Domicile is the status or attriution of eing a permanent resident in
a particular Aurisdiction. person can remain domiciled in a Aurisdiction even
after they have left it" if they have maintained sufficient linBs with that
Aurisdiction or have not displayed an intention to leave permanently (that is
to say" if that person has not yet moved to a different state" or has not yet
formed an intention to remain there indefinitely). L1RD 3,#L$@1RD in
2+3#R H ,/$#I:J in defining domicile said"
7That place is properly the domicile of a person in which he has voluntarily
fixed the haitation of himself and his family" not for a mere special ortemporary purpose ut with a present intention of maBing it his permanent
home...8
The concept of domicile is not uniform throughout the world. To civil lawyers
in #urope who do not apply common law" it means haitual residence. 2hile
at common law it is regarded as e0uivalent to a personFs permanent home
Domicile is what is termed in private international law as a 7connecting
factor8 which connects an individual with a system of law for the purposes of
determining a range of matters" principally related to his status or property.
@or example" in the circumstances elow" domicile is said to e a
7connecting factor8
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.Legal capacity to marry
.ersonal capacity to maBe a will
.@ormal validity of a will
.6urisdiction of the court in proceedings for divorce
%ationality on the other hand is a relationship etween an individual and a
country (to which a person owes his allegiance to). %ationality normally
confers some protection of the individual y the state and some oligations
on the individual towards the state. 2here the state and country is federated
into separate legal systems the two (domicile and nationality) will e
different. 5ut where the country is federated into separate legal systems the
two will e different.
%T+1%L+T %D D1$+3+L# 31%TR&T#D
Domicile can e distinguished from nationality in that one can have a dual
nationality ut not more than one domicile at a time as it was held in the
case of 1D+ H 1D+ICJ.
#very person as well must have a domicile as was seen in the case of /D%
H /D%IJ. /nliBe nationality no person can e without a domicile even if
stateless.
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%ationality represents a manFs political status" y virtue of which he owes
allegiance to some particular country! domicile indicates his civil status and
it provides the law y which his personal rights and oligations are
determined. %ationality depends" apart from naturalisation" on the place of
irth or on parentage! domicile is constituted y residence in a particular
country with the intention of residing there permanently. +t follows that a
man may e a national of one country ut domiciled in another.
T#& 1@ D1$+3+L#
The rules for determining domicile in common law Aurisdictions are
ased on case law in origin. ,owever" as time went on" different Aurisdictions
altered some aspects of the common law rules y statute" details of which
may vary from one Aurisdiction to another. The common law rules have
however survived in most Aurisdictions and are outlined elow.
:. D1$+3+L# 1@ 1R+G+%
Dicey states the common law rule as thus!
7#very person receives at irth a domicile of origin"
a) legitimate child orn during the lifetime of his father has his domicile oforigin in the Aurisdiction in which his father was domiciled at the time of his
irth.
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) legitimate child not orn during the lifetime of his father or an
illegitimate child has his domicile of origin in the Aurisdiction in which his
mother was domiciled at the time of his irth.
c) foundling has his domicile of origin in the Aurisdiction in which he was
found.
domicile of origin is attriuted y law to every person at irth. There is no
necessary connection etween the place of irth and the domicile of origin.
domicile of origin is more tenacious than a domicile of choice. +t is moredifficult to prove that it has een aandoned. The point of domicile of origin
ensures that everyone has one domicile and only one domicile at all times. +f
a person leaves the country of his domicile of origin" intending never to
return to it" he continues to e domiciled there until he ac0uires a domicile of
choice in another country. 5ut if a person leaves the country of his domicile
of choice" intending to never return to it" he ceases to e domiciled in that
country unless and until he ac0uires a new domicile of choice" his domicile of
origin revives.
The domicile of origin acts as a fall-acB! whenever there is no other
domicile" it comes to fill the gap.
+n 5#LL H #%%#DIKJ" per Lord 2estury- 7The domicile of origin adheres
until a new domicile is ac0uired.8
C. D1$+3+L# 1@ 3,1+3#
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#very independent person can ac0uire a domicile of choice y the
Aurisdiction of residence and intention of permanent or indefinite residence
ut not otherwise. ccording to the D1$+3+L# %D $TR+$1%+L
R13##D+%G& 3T" every person in the world who is over the age of sixteen
and is not mentally incapale is ale to ac0uire a domicile of choice y
residing in one country with the present intention of maBing it his permanent
home. Thus there are two important re0uirements" namely! fact and
intention. They are normally referred to as factum and animus. @actum is
fact or residence" while animus is intention. person can therefore aandon
a domicile of choice in a Aurisdiction y ceasing to reside there (fact) and y
ceasing to reside there either permanently or indefinitely (intention). That is
to say leaving 7animus non revertendi8
Residence for the purpose of domicile has a very wide meaning and itsfunction is to a great extent evidential in character thus" no particular length
of residence is re0uired. 5ut long residence in a country will a raise the
inference that a person intended to remain there and this may e so strong
as to e impossile to reut. ,owever" long period of asence does not
necessarily destroy a domicile of choice and may not do so even if there is
indecision aout a possile return. Thus in R# LL1D& #H%&I?J" a 5elgian
domiciliary who had fled to #ngland died efore he had decided to return to
5elgium or emigrate to ustralia. ,e was held to e domiciled in 5elgium.
The re0uirement of intent is more exacting and important in domicile. +n
2+%%& H TT1R%# G#%#RLI=J" 2inans had lived a remarBale life in the
manner of the heroes of the Hictorian age. 5orn in 5altimore" he spent much
of his life in #urope and lived in #ngland for the last < years of his life. ,e
uilt railways in Russia and helped that country against #ngland in the
3rimean war y maBing gunoats. ,e had an osession to develop his
5altimore property into a seaport" e0uip it with ships of his own special
design and capture the worldFs carrying trade for the /nited &tates at the
same time putting an end to the Rule 5rittanica. ,is hatred of 5ritain
eventually convinced the ,ouse of Lords that despite his long residence
there" he lacBed the intention to ac0uire a domicile in #ngland. similar
decision was held in the case of R$& H L+H#R11L R1L +%@+R$RI
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,owever it has een sumitted that the two cases are extremely
unsatisfactory as they put too much emphasis on the desires" however
unrealistic" of the person in 0uestion rather than what he proposed to do.
+n contrast to the case aove" the case of 2,+T# H T#%%TI>J" where a
family were moving house and this involved crossing a state line. ,aving put
their elongings in the new house the family returned to their old state to
spend the night with family as the new house was not yet ready to inhait.
2hen the father died during the night the court decided that he died
domiciled in his new state not the old one.
Thus" once it can e estalished that the intention to maBe the country of
residence the permanent home exists" the fact that the residence was not
freely chosen and could e ended y compulsory relation is irrelevant.
. D1$+3+L# 1@ D##%D#%3#
This is also Bnown as domicile y operation of law. This type of domicile
concerns dependent persons. The domicile of a dependent person is the
same as and changes (if at all) with the domicile of the person on whom he
is" as regards his domicile" legally dependent. /ntil he reaches the age of
maturity (which maye the age of sixteenI;J)" a legitimate childFs domicile
depends on and changes with the domicile unless" oth parents eing alive"
the child has his home with his mother and no home with his father. n
illegitimate child or a legitimate child whose parents are oth living ut who
lives wholly with his mother has a dependent domicile coincident to that ofhis motherFs current domicile. child whose father is dead taBes his domicile
of dependence from his mother however" unless he has a home with her" his
domicile of dependence does not automatically change with hers. child
whose parents are dead should e domiciled where the person on whom he
is dependent is domiciled (however there is no authority for thisI:J). t
irth" a child receives two domiciles" origin and dependence" which are
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initially" in the vast maAority of cases" the same. The domicile of origin will e
overlaid y the domicile of dependence. 2hile the domicile of origin remains
constant throughout life" the domicile of dependency changes with the
domicile of the person on whom the child is domiciliary dependent. The idea
is that" as far as possile" there should e unity of domicile etween the child
and its parents.
$arried 2omen
/ntil : 6anuary :;
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.risoners
prisoner normally retains his domicile. 5ut he can form an intention to
reside permanently or indefinitely' in which case he ac0uires a domicilethere.
.ersons liale to deportation
&uch a personFs residence will e precarious and so he is unliBely to e ale
to form an intention to remain. 5ut if he forms the necessary intention he
ac0uires the domicile of choice.
1nce a person has ac0uired a domicile of choice he does not lose it merely
ecause a deportation order has een made against himI::J. ,e loses it only
when he is actually deported.
.Refugees and fugitives
person who leaves a country as a political refugee" as a fugitive from
criminal Austice" or in order to evade his creditors" has a special reason for
leaving it" ut has no special motive for entering another country nor is his
residence in any other country in any sense enforced. +f the fugitive intends
to aandon his domicile in the first country" the ac0uisition of a new domicile
in the second country will e readily assumed.
+f a political refugee intends to return to the country from which he fled as
soon as the political situation changes" he retains his domicile there unless
the desired political change is so improale that his intention is discounted
and treated merely as an exileFs longing for his native land! ut if his
intention is not to return to that country even when the political situation has
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changed" he can ac0uire a domicile of choice in the country to which he has
fled.
+n the case of a fugitive from criminal Austice" the intention to aandon hisdomicile in the country from which he has fled will e readily assumed"
unless perhaps the punishment which he seeBs to escape is trivial" or y the
laws of that country a relatively short period of prescription ars liaility to
punishmentI:CJ. &imilarly" a person who leaves a country to escape his
creditors may lose his domicile there! ut if he intends to return as soon as
he has paid or otherwise got rid of his dets" there is no change of domicile.
.+nvalids
+t has een oAected that person who resides in a country for the saBe of his
health does not ac0uire a domicile. This is ecause!
a) The residence has een taBen up for a special motive!
) +t may not e freely chosen.
These factors maBe it improale that a domicile has een ac0uired. +f
someone goes to a country for treatment" he clearly does not ac0uire a
domicile there. 5ut where he settles in a new country ecause he elieves he
will enAoy etter health there may well intend to live there permanently.
.$emers of the armed forces
/nless a person intends to change his domicile" he does not ac0uire a
domicile y entering the armed forces or lose the one he has upon his
entering.
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.#mployees
+f a person goes to a country merely to worB" he retains his domicile and
does not ac0uire a domicile of choice there. #xcept where he does not only
go there to worB" ut also to settle in it" he ac0uires a domicile of choice.
Thus" where a arrister with an #nglish domicile of origin was appointed
3hief 6ustice of 3eylon" and he went to 3eylon intending to stay there until
he earned his pension" he retained his #nglish domicileI:J.
.Diplomats
LiBe every other case" where diplomats do not form the intention of settling
in the country to which they have een accredited they do not ac0uire a
domicile there. 5ut if they do form an intention to reside there permanently"
they ac0uire a domicile of choice.
31%3L/&+1%
Domicile is the most significant connecting factor in conflict of laws. +t
has a dominating role in family and matrimonial property law and a role in
other areas such as capacity of persons to maBe contracts. +t plays a part
also in the law of taxation.
Domicile is an idea of lawFI:KJ
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Domicile of origin cannot e lost as such. #veryone is orn with a domicile of
origin" which remains (if only in aeyance). #ven when a domicile of choice is
ac0uired" the domicile of origin will remain as a resource to fill up any gap
when a domicile of choice is aandoned.
domicile of choice can e aandoned y a person when he or she ceases to
reside in a country and ceases to intend to reside there permanently or
indefinitely. 2hen a domicile of choice is aandoned either a new domicile of
choice is ac0uired" or the domicile of origin revives y operation of law.
+t should e noted that the most important factor in ac0uiring a domicile of
choice is intention (animus). The act of moving may occur ut most times it
does not necessarily mean that the person intends to move.
I:J (:>>?) LL #R >CK
ICJ (:;=?)%%LR :;= similarly held in the +%L%D R#H#%/# 31$$+&&+1%#R H
5/LL13 (:;K
IJ (:>=;) L.R : &.3 M D ::=>) L.R: &3 M D+H J :>>> :5 2 H
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I:J .G v Rowe (:>=C) : , M 3 :
I:KJ 5ell v ennedy(supra)
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