Private International Law: Connecting Factors

PIL concerned w/ three factors: jurisdiction (if country has jurisdiction to hear case), applicable law (assuming court has jurisdiction,
what is applicable law), whether court will recognize, enforce foreign judgment (rules of jurisdiction, choice of laws, recognition of
foreign judgments) these questions determined by connecting factors
Connecting factors: links b/w event, thing, transaction, person and country; such factors link person, events, etc. to country;
these elements linking dispute to particular countries are connecting factors (i.e. nationality, place of occurrence)
Connecting factors: connect legal categories to applicable laws (i.e. of legal categories are contract, tort, succession)
Connection factor: some outstanding fact which establishes natural connection b/w factual situation before court and particular
system of law
Examples of connecting factors: personal (domicile, habitual residence, and very rarely nationality); place where transaction occurs
(place marriage celebrated loci celebrationis or where contract concluded loci contractus); place of performance of contract; place
where property situated (situs); place where court is sitting (forum); intention of parties
For choice of law: connecting factors enable courts to identify applicable law (i.e. choice of law rule may say title to immovable
property governed by law of country where land situated)
DOMICILE: domicile is most common connecting factor; permanent home
Three forms of domicile: domicile of origin (acquired at birth); domicile of dependence (domicile dependent on another);
domicile of choice (acquired by independent person residing in country w/ intention to settle indefinitely, factum, animus)
No person can be w/o domicile; necessary that every person has domicile so that legal rights, responsibilities can be determined
o Bell v Kennedy: Westbury: to every adult law prescribes domicile remains fixed until new, different usurps its place
o Udny v Udny: settled principle that no man shall be w/o domicile
Person cannot have more than one domicile, at least for same purpose Udny v Udny
Presumption in favor of continuance of domicile of origin: BOP lies on person who asserts domicile of origin lost
o Winans v AG: Lord MacNaughten: onus for proving domicile has been chosen in substitution for domicile of origin lies
upon those who assert domicile of origin lost
o Proof is on balance of probabilities, but at CL courts require higher standard where alleged domicile of origin lost (Lord
MacNaughten Winans: its character is more enduring, its hold stronger, less easily shaken off
Normally courts will apply their own rule of domicile to determine where person domiciled Re Annesley
DOMICILE OF ORIGIN: acquired at birth; arises by operation of law; persons domicile of origin depends on domicile of one
parent at time of birth, and not where person is born nor where parents where residing at time of birth (Udny v Udny)
At CL more difficult to lose domicile of origin; has special tenacity (Winans v AG: American millionaire, disliked England, spent
37 yrs in En; dreamed of returning to America; held: DOO not lost character most enduring)
DOO can be abandoned if one evinces clear intention to do so (Hulford v Hulford)
Revival of domicile of origin: never totally lost; if one acquire new domicile, domicile of choice remains in abeyance, performs
a gap-filling function, if person appears to be w/o domicile then domicile of origin revives
o Udny v Udny: when another domicile is put on, domicile of origin is for that purpose relinquished, and remains in
abeyance during continuance of domicile of choice; but as domicile of origin is creature of law, and independent of the
will of parties, it would be inconsistent w/ principles of which by law it is created, ascribed, to suppose that it is capable
of being by act of any party entirely obliterated, extinguished. It revives, exists whenever there is no other domicile
o Tee v Tee: man DOO En, obtained DOC in US; subsequently worked in Germany, did not acquire domicile there;
originally he intended to settle in US; while in Ger he began legal proceedings in En; court would hear case only if he
was domiciled there; while in Ger, he decided not to settle in US, abandoned his DOC, thus DOO revived
DOMICILE OF CHOICE: acquired by residing in country w/ intention to remain permanently or indefinitely; two tests: objective
test of residence factum, subjective test of intention animus; both must co-exist (Bell v Kennedy: Lord Chelmsford: new domicile
not acquired until there is not only fixed intention of establishing permanent residence, but until also this intention has been carried out
by actual residence there)
Residence: need not be of any particular duration, but must be residence in pursuance of intention to settle permanently or
indefinitely (Lord Chelmford: if intention of permanently residing in place exists, residence pursuant to that intention, however,
short, will establish domicile)
o Residence must be lawful, based on public policy: courts cannot allow person to acquire domicile in defiance of law
Puttick v AG: propositus fugitive in Ger; fled to En on forged passport; court: even though she had requisite
intention to remain in En permanently, not domiciled; residence illegal, obtained by fraud
o Person may reside in two countries, but he must show one is his chief residence
Plummer v IRC: propositus has home in En, where she did secretarial course, went to university and home in
Guernsey, where her family resided, a Guernsey drivers license and passport, and she spent weekends and
holidays; court: she had not acquired domicile in Guernsey b/c it was not her chief residence
Intention: must intend to settle permanently or indefinitely

Re Fulds Estate (No 3): Scarman J: if man intends to return to land of birth upon clearly foreseen, reasonably anticipated
contingencies i.e. end of his job, intention required by law lacking; but if he has in his mind only vague possibility, such
as making fortune or some sentiment about dying in land of his fathers, such state of mind consistent w/ intention
required by law
o Doucet v Geoghegan: man intended to move if he made fortune; court: intention did not prevent acquisition of domicile
o Re Furse: American, worked on farm for 39 yrs; intended to return to America if health prevented him from working;
court: he acquired domicile in En
o Change of nationality may indicate person had requisite intention to change domicile (Nicholls v Nicholls: man
renounced Bar nationality, accepted Trinidadian nationality; held domiciled in Trinidad; evidence but not conclusive
o Re Fuld: F born in Ger, later acquired Canadian nationality; held he was domiciled in Ger b/c he never decided which is
his permanent home
o Note: must be an intention to settle in particular country; where propositus undecided, DOO remains (Bell v Kennedy: B
born in Jamaica to Scottish parents domiciled in Jamaica; domicile of origin Jamaican; at 35, he left Jamaica for good,
traveled to Scotland looking for land; he found weather bad, price costly, and could not decide to live there, in En, or
south of France; court: domicile of origin still remains b/c he did not have a fixed intention to reside permanently
Abandonment of Domicile: propositus loses domicile of choice if he both ceases to reside in country, ceases to intend to reside
Cessation of residence: propositus must cease to reside in country as inhabitant (IRC v Duchess of Portland)
Cessation of intention: domicile of choice lost where propositus gone to new country w/o intention to return (Qureshi v Qureshi)
o

DOMICILE OF DEPENDENCE: conferred on legally dependent persons by operation of law; certain classes of person young
children, mentally incapable regarded as dependent, incapable of forming requisite intention to acquire domicile of choice
Children: at birth, assigned domicile of origin, based of parentage (note: DOO never completely lost); dependent on parent at CL
until 21; in Caribbean age of majority 18 (sec 3 Minors Act Barbados)
o Citeria v Citeria: domicile of legitimate child follows father, illegitimate follows mother
o Domicile of illegitimate child, later legitimized changes w/ that of father
o Hope v Hope: If parents divorced, mother given custody, thereafter child might obtain domicile of mother
o Re Beaumont: widow domiciled in Scotland remarried En domicliary; she acquired En domicile of dependence; she
relocated to En, leaving daughter in Scotland; held: childs domicile remained Scottish; change of childs domicile is
result of exercise by mother of power vested for welfare of infants, which in interest, she may abstain from exercising
Rationale: court did not want to make childs domicile dependent on step-father
o In Barbados, distinction b/w children born out of wedlock abolished (sec 3 Status of Children Reform Act)
Sec 6(1): child whose parents are living together has domicile for time being of father (note can be unmarried)
Sec6(2): if child whose parents not living together has home w/ father, domicile for time being of father; after
child ceases to have home w/ father, domicile continues until its home is w/ mother
Sec6(3) child whose parents not living together has domicile for time being of mother
Sec6(4) until foundling has home w/ parents, both parents deemed alive, domiciled in country found
o Note: in Bar child cannot have domicile of person other parents; in T&T, T&T Family Law (Guardianship of Minors
Domicile, and Maintenance Act) child not living w/ parents has domicile of person in actual custody
Married persons: at CL, wifes domicile that of husband Citeria v Citeria Vieira J: woman even if infant, automatically
acquires on marriage domicile of husband; so long as marriage is subsisting, wife cannot have different domicile than husband;
even if judicially separated and if husband changes his domicile, wifes automatically changes
o AG for Alberta v Cook: wife cannot acquire independent domicile even if separated b/c separation did not destroy
subsistence of marriage
o Note: on death of husband, domicile of dependence continues as domicile of choice, unless abandoned; presumed if she
is present in country of husband she possessed requisite intention to remain permanently
o Re Scullard: testatrix married; left husband permanently; moved to Guernsey; expressed intention to remain
permanently; husband who was En domicile died six weeks earlier; she became ill, could not express intention of
domicile; held: acquired domicile of choice in Guernsey (she moved all her belongings, etc)
Danckwerts J: I do not see why it should not be assumed her intention continued after death of husband and
why some new overt act required when all previous evidence consistent w/ there having been no different intent
o Gray v Famosa: Lord Denning: domicile of dependence last barbarous relic of wifes servitude
o Domicile Reform Act of Barbados (Sec 5(1): every married person capable of having independent domicile; rule whereby
upon marriage, woman acquires domicile of husband thereafter during subsistence of marriage incapable of having other
domicile abolished
Mentally incapable persons: Sharpe v Chrispin: if below age of majority, dependent; if reach age of majority but cannot form
requisite intension, domicile remains dependent
Advantages of domicile as connecting factor:
More natural, appropriate to subject person to law of home than law of country he may have left years ago
Domicile only practical test in certain political units such as UK, US where persons of same nationality but different legal systems

Disadvantage of domicile as connecting factor:

Legal domicile out of touch w/ reality as law may regard person domiciled in country he is not resident in (i.e. if domicile of
origin revives, which court places great emphasis on) sometimes domicile artificial concept
Person may be regarded as not domiciles b/c intention dependent on future occurrence, but still lived in country for long time
Finding that person domiciled in particular country, often dependent on proof of intention; such intention often cannot be resolved
w/ certainty w/o recourse to courts
REFORMS
Codification of requirement of acquisition of new domicile: statute replaces CL
S9 Domicile Reform Act, Barbados: person acquires new domicile in country at particular time if, immediately before:
o He is not domiciled in that particular country
o He is capable of having independent domicile
o He is in that country (note law does not say in that country legally)
o He intends to live indefinitely in that country
Illegality in Puttick v AG illegal immigrant in En came on forged passport; held not domiciled in En; but in Belle v Belle Williams
CJ was of view that domicile could be acquired in overseas country even though person present illegally; in Belle however there
was no overriding public policy to interpret in that country an meaning legally
Intension some En courts require that person must intend to reside permanently; under statute, indefinitely suffices; but in CL
where persons residence dependent on vague contingency, where no substantial likelihood it would occur, that suffices
(permanently or indefinitely)
Revival of Doctrine of Origin: CL domicile of origin revives where one abandons domicile of choice w/o replacing it w/ another
In US, doctrine of origin not accepted; person maintains domicile of choice until acquires another (more realistic)
o Re Jones Estate: Jones born in Wales 1850; En domicile of origin; had illegitimate daughter; to escape affiliation
proceedings, he left for US, settled in Iowa; amassed fortune; after wifes death, he returned to Wales; in May 1915, he
sailed in the Lusitania from NY w/ intention not to return to Iowa; German forces sank ship before he arrived in Wales;
by Iowa law his illegitimate daughter succeeded his estate, but by En law it went to brothers, sisters; SC of Iowa held:
Jones retained domicile of choice in Iowa, deemed that he died domiciled there
Legislation in Caribbean in line w/ US position (S10 DRA Bar, S9 Guayana, S42 T&T)
o S10 DRA Bar: new domicile acquired in accordance w/ S9 continues until further new domicile acquired; rule of law
known as revival of domicile of origin whereby persons DOO revives upon abandoning domicile of choice is abolished
o Note: revival of doctrine of origin still part of law in Bahamas, Jamaica, St. Vincent
Standard and burden of proof: case law indicates BOP higher in DOO (Winans v AG DOO character more enduring) than balance
of probabilities; however statutes equalizes burden
o S11 DRA Bar: standard of proof which immediately before the commencement of this act was sufficient to show
abandonment of domicile of choice shall be sufficient to show acquisition of new domicile in accordance w/ S9 (see
Hulford v Hulford and Unwin v Unwin, which indicate test is balance of probabilities
Abolition of wifes domicile of dependence: in some Car territories, wifes domicile of dependence is abolished (S5(1) Bar, S4(1)
Guy, S43 T&T, S2(1) St Vincent)
o S5(1) DRA Barbados: every married person capable of independent domicile; rule whereby upon marriage woman
acquires domicile of husband abolished (note not retrospective)
Law Commission and Scottish Law Commission Report
Threefold division of kinds of domicile (origin, choice, dependence) creates unnecessary complexity, unhelpful legal distinctions
Retention of domicile of origin led to doctrine of revival, result: person may die domiciled in country he never visited
Doubt as to which standard of proof, depending on domicile of origin or choice
Rules governing children discriminate b/w legitimate, illegitimate; b/w fathers, mothers; fail to deal w/ situation where child
abandoned, parents die, child is fostered or taken into care of local authority
Rule determining whether domicile of choice acquired criticized for being artificial, uncertain
Rules governing mentally disordered persons unsatisfactory; lead to result that domicile of person must remain unaltered from
onset of incapacity; if under age of 16, domicile of dependency continues throughout life, or until incapacity removes itself
Rule whereby mother, on whose domicile her child is dependent, may elect to change childs domicile if she changes her own
wrong in principle and unhelpful in law; in principle wrong b/c domicile would depend on someone elses choice; in practice
likely to freeze childs domicile b/c of small numbers of cases where mother would elect to change
RESIDENCE: generally alternative to domicile, nationality; more desirable connecting factor for regulating personal matters, such as
education, health, family; residence is usually classified as ordinary or habitual
Ordinary residence: Shah v Barnet London: Lord Scarman: ordinary residence refers to mans abode in particular place or
country, which he adopts voluntarily and for settled purposes as part of regular order of life for time being, whether long or short
o Ordinary residence question of fact, may be ordinarily resident in more than one country

IRC v Lysaght: person lived in Ireland but spent one week each month in En; while in En, he lived in hotels;
held: he was ordinarily resident in En and Ireland
o Residence must be voluntary, not kidnapping, imprisonment, condition that he not leave Petrotrade Inc v Smith
Habitual residence: compromise b/w domicile, nationality; first developed at Hague Convention on PIL
o Used in En for matters of divorce, separation, formal validity of wills
o Habitual residence connotes person taken up residence, lived in relevant country for period of time that shows residence
habitual (Anderson) Nessa v Adjudication Officer: habitually describes residence which achieves degree of continuity
o Habitual residence question of fact, determined by circumstances; childs habitual residence that of parents; if parents
live apart, habitual residence that of custodial parent
o In Kapur v Kapur habitual residence regarded as similar to ordinary residence; two main difference (1) person may have
more than one ordinary residences, but only one habitual residence; (2) ordinary residence acquired w/in a day, habitual
residence acquired, as stated by Lord Brandon in R J over an appreciable period of time
o Residence must be lawful Shah v Barnet London Borough Council
o Residence must be accompanied by settled purpose or intention; person who reads for degree may be habitually resident
Kapur v Kapur: man went to En to study for En bar exams, regarded as habitually resident for divorce

NATIONALITY: in CL jurisdiction, domicile most common connecting factor, in civil law jurisdiction, nationality most common
Advantages: nationality more easily ascertained, therefore more certain; more difficult to change, thus difficult to evade law
Disadvantages: where person citizen of two countries; unrealistic if person left country but not naturalized in new country
COMPANIES: personal law of company is that of its domicile, place of incorporation. To this it owes its existence, and that law
governs also its dissolution and its capacity to contract. Law of place of incorporation dictates who can sue, be sued on its behalf and
governs the extent to which members personally liable for debts (Collier)
Domicile and nationality: determined by law of place of incorporation; company cannot change its domicile or nationality
Residence primarily important for tax purposes; liability dependent if company resident in particular jurisdiction; note: domicile
dependent on where central management, control exists rather than by place of incorporation
o De Beers Consolidated Mines v Howe: com incorporated in South Africa, where it made profits from mining diamonds;
had board of directors in South Africa, board managed day to day operations; another board was in London, which in
conjunction w/ board in SA made policy decisions; board in London regarded as controlling policy; meeting of members,
mining, sales of diamonds took place in SA; held: tax assessed in London as central management, control exercised there
o Egyptian Delta Land & Investment Co v Todd: com simply maintained office in En, register of members, local secretary
to comply w/ minimum legal requirements; but its directors, seals, books, active secretary, bank account in Cairo; held:
company resident in Egypt
o Note: companies residence significant to enforce foreign judgments