As a legal concept it is used to determine which legal system applies to an individual where that individual has connections with more than one legal jurisdiction. It is relevant to several aspects of personal law, such as marriage, divorce, wills and succession on death (in relation to moveable assets only. ‘Immoveable’ assets (broadly, land and buildings) are dealt with by the jurisdiction in which the asset is physically situated). It is also relevant for the purposes of UK tax legislation (with slightly different rules) in relation to income tax, capital gains tax and inheritance tax; and whether someone is domiciled or non-domiciled in the UK for tax purposes can have significant consequences.
For example an individual could be born in one country (A) to parents from two different countries (B) & (C), have been brought up and a national of a fourth country (D) and later move to a fifth country (E). Depending on the specific circumstances of that individual’s case they could be held to be domiciled in any one of them and separately for tax purposes could be deemed domiciled in another.
Common law UK Domicile rules for personal law purposes
Under common law, domicile can be acquired in one of three ways: As a Domicile of Origin Everyone has a domicile of origin at birth, based on the domicile of their parents.
- If a legitimate child (i.e. parents are married) is born during the father’s lifetime, the child takes the domicile of the father at the time of the child’s birth.
- If the child is born to unmarried parents (even if they subsequently marry), or if the child’s father dies before the birth, the child takes the domicile of the mother at the time of the child’s birth.
- If the child is adopted, the child is treated as the legitimate child of its adoptive parent(s), as at the date of the adoption.
- If the child is a foundling, the child’s domicile of origin is the place where the child was found.
As a Domicile of Dependency
A dependent person has the domicile of the person on whom they are considered to be dependent by law. Dependent persons are:
- Unmarried children under the age of 16 (this is relevant for example where the parent’s domicile changes after the birth of the child or potentially when the parents live apart).
- Mentally disordered persons (retain the domicile they had when they last had mental capacity or if they lose mental capacity whilst under 16 they continue to be treated as a dependent child).
As a Domicile of Choice
Acquiring a domicile of choice requires two distinct elements:
- Actual residence in the new country (applies from day one).
- An intention to reside in the new country permanently and indefinitely.
Losing a domicile of choice requires the opposite:
- Ceasing residence in a country.
- An intention to cease residence permanently and indefinitely.
Both respective elements must be present for each, otherwise the domicile of choice is not acquired/lost.
Residence in the context of common law domicile is a different test to that used for UK tax law purposes. Residence for domicile purposes means more than making visits, no matter how regular; it requires “inhabitance” rather than a casual presence. All of the circumstances of an individual’s life (e.g. location of family, assets, personal papers and belongings, membership of clubs, and business interests) are examined. Where an individual genuinely inhabits more than one country, their domicile is where they have their chief residence.
Statutory UK Domicile laws for taxation purpose
If you aren’t domiciled in the UK under common law (see above) you’re treated as domiciled in the UK for all tax purposes if either Condition A or Condition B is met.
To meet this condition you must:
- be born in the UK.
- have the UK as your domicile of origin.
- be resident in the UK for any year since 2017 (unless you can show that you have since had a different domicile of choice under the common law method).
An intention to reside in the new country permanently and indefinitely.
Condition B is met when you’ve been UK resident for at least 15 of the 20 tax years immediately before the relevant tax year.
All UK tax years of residence are counted towards this including those where you were under the age of 18. Any tax year which is split into a UK and overseas part is counted as a year of UK residence (for example if you depart from or arrive in the UK during a tax year).
The information contained in this leaflet is or general information purposes only and is not legal advice, which will depend on your specific circumstances. © 2021 EMW Law LLP