Henderson v Henderson
[1965] 1 All ER 179(Decision by: Sir Jocelyn Simon, P)
Between: Henderson
And: Henderson
Judge:
Sir Jocelyn Simon, P
Subject References:
FAMILY
DIVORCE
DOMICIL
DOMICIL OF ORIGIN
Whether domicil of origin domicil of dependence at birth or at time of attaining majority
DOMICIL OF CHOICE
Whether acquisition of domicil of choice prevented by sentimental feeling of attachment to land of origin coupled with wish to be buried there
Case References:
Aikman v Aikman - (1861), 4 LT 374; 3 Macq 854; 11 Digest (Repl) 328, 37
Anderson v Landeuville - (1854), 9 Moo PCC 325; 24 LTOS 281; 14 ER 320; 11 Digest (Repl) 331, 54
Bowie (or Ramsay) v Liverpool Royal Infirmary - [1930] All ER Rep 127; [1930] AC 588; 99 LJPC 134; 143 LT 388; 11 Digest (Repl) 339, 109
Bruce v Bruce - (1790), 2 Bos & P 229; 126 ER 1251; 11 Digest (Repl) 359, 272
Brunel v Brunel - (1871), LR 12 Eq 298; 25 LT 378; 11 Digest (Repl) 352, 204
Crumpton's Judicial Factor v Finch-Noyes - 1918 SC 378; 11 Digest (Repl) 355, 148
Doucet v Geoghegan - (1878), 9 ChD 441; 11 Digest (Repl) 337, 94
Firebrace v Firebrace - (1878), 4 PD 63; 47 LJPC 41; 39 LT 94; 11 Digest (Repl) 342, 127
Harrison v Harrison - [1953] 1 WLR 865; 3rd Digest Supp
Hood's Estate - (1853), 21 Pennsylvania State Reports 106
Macreight, Re, Paxton v Macreight - (1885), 30 ChD 165; 55 LJCh 28; sub nom Re Macreight, Preston v Macreight, 53 LT 146; 11 Digest (Repl) 342, 128
Moorhouse v Lord - (1863), 10 HL Cas 272; 32 LJCh 295; 8 LT 212; 11 ER 1030; 11 Digest (Repl) 332, 56
Platt v A-G of New South Wales - (1878), 3 App Cas 336; 47 LJPC 26; 38 LT 74; 11 Digest (Repl) 349, 179
Stanley v Bernes - (1830), 3 Hag Ecc 373; 162 ER 1190; 11 Digest (Repl) 329, 43
Urquhart v Butterfield - (1887), 37 ChD 357; 57 LJCh 521; 58 LT 750; 11 Digest (Repl) 355, 239
Whicker v Hume - (1858), 7 HL Cas 124; 28 LJCh 396; 31 LTOS 319; 22 JP 591; 11 ER 50; 11 Digest (Repl) 336, 86
Judgment date: 20 October 1964
Decision by:
Sir Jocelyn Simon, P
The husband's father had a domicil of origin in Scotland. He was born there in 1902, and was educated in Scotland; he went to England when he was nineteen or twenty and entered employment there with a Scottish firm by whom he was sent to the Far East. After his return to England, which was before 1930, he lived and worked in England. He was married twice, each time to an Englishwoman. The evidence did not, however, establish with the necessary clarity that the husband's father had acquired by 1932, when the husband was born, a domicil of choice in England. The husband himself was born in London and went to school in the Isle of Wight. By 1953, when the husband attained twenty-one, his father had acquired a domicil of choice in England. The husband's father continued to reside in England until his death in 1962, although he retained a sentimental attachment to Scotland and wished to retire to the Highlands. Thus the husband's domicil of dependence at birth was in Scotland, but his domicil of dependence, on attaining his majority in 1953, was in England. On an issue, in a divorce suit brought by the wife, as to the husband's domicil at the time of the presentation of her petition on 4 December 1962,
Held
The husband's domicil of origin was his domicil of dependence at the time of his birth, and thus was a domicil in Scotland; but on his majority he became capable of acquiring an independent domicil, which would be a domicil of choice, and his domicil then became a domicil in England, which he had not since abandoned (see p 183, letter i, p 184, letters a and g, and p 185, letter e, post).
Per Curiam:
- (a)
- a feeling of sentimental attachment to the land of one's domicil of origin is not sufficient for the retention of that domicil, nor is a "floating intention" to return there in the indefinite and uncertain event of retirement (see p 183, letters a and b, post).
- (b)
- the abandonment of a domicil of choice acquired dependently in favour of a domicil of origin re-acquired by personal volition must, in the nature of things, generally be of all changes in domicil the one least onerous of proof (see p 185, letter c, post).
Dicta of Sir Barnes Peacock in Platt v A-G of New South Wales, ((1878), 3 App Cas at p 344), and of Brett LJ in Doucet v Geoghegan ((1878), 9 ChD at p 458) applied.
Notes
As to creation and adherence of domicil, see 7 Halsbury's Laws (3rd Edn) 16, 17, paras 30, 31; and for cases on the subject, see 11 Digest (Repl) 328, 329, 30-42.
Issue
This was an issue, in a wife's divorce suit, to determine whether the husband was domiciled in Scotland on 4 December 1962, the date of the presentation of the wife's petition. The husband, the plaintiff in the issue, contended that he was then domiciled in Scotland and that, therefore, the English court lacked jurisdiction. The wife, the defendant in the issue, alleged that at the relevant date the husband was domiciled in England. The facts are set out in the judgment.
C Salmon and R Sturgess for the husband.
C Sleeman and E Cuddon for the wife.
Cur adv vult
20 October 1964. The following judgments were delivered.
Sir Jocelyn Simon P read the following judgment. This is an issue, directed in a wife's divorce suit, to determine whether the husband was domiciled in Scotland at the date of the institution of the suit. The husband, who is the plaintiff in the issue, affirms that he was domiciled in Scotland at that date; the wife defendant denies it, and alleges that he was domiciled in England. The domicil of the plaintiff's father, as well as his own, is involved in the determination of the issue.
Domicil is that legal relationship between a person (called the propositus) and a territory subject to a distinctive legal system which invokes the system as the personal law of the propositus and involves the courts of that territory in having primary jurisdiction to dissolve his marriage. (I use the male gender for convenience, though every person of either sex has a domicil.) The relationship arises either, on the one hand, from the propositus being, or having been, resident in such territory with the intention of making it his permanent home or, on the other, from there being, or having been, such a relationship on the part of some of other person on whom the propositus is for this purpose legally dependent. Thus, a wife is for this purpose legally dependent on her husband, and a legitimate child on his father. This type of domicil of the child and the wife is termed a domicil of dependence. The domicil that the child derives from the father is also known as his domicil of origin. Every person capable of acquiring an independent domicil will, on independence, retain his domicil of dependence, though it may be abandoned at any time thereafter. Though the principles which govern a change of domicil are well established, they are often difficult of application, and not least if the choice is between a domicil in Scotland or in England. For England and Scotland have distinctive legal systems. But the high roads between them are not barred by any frontier; there is merely a border to be passed. A common tongue is spoken on either side. Many English people go to work in Scotland, and even more Scotsmen come to work in England. They settle down in a new home near the place where they are working. Inter-marriage is frequent. But most people, and not least Scotsmen, retain a pride of ancestry and a sentiment of attachment to the land of their fathers. It is often difficult to determine whether they have settled in their new place of residence with the intention of making it their permanent home; or whether they intend to return at some time to live permanently in their country of origin; or whether, thirdly, the residence is quite indeterminate in character, no clear intention as to ultimate permanent residence being formed.
In order to help resolve such difficulties the law has evolved further rules. First, clear evidence is required to establish a change of domicil. In particular, to displace the domicil of origin in favour of the domicil of choice, the standard of proof goes beyond a mere balance of probabilities. Where residence, however long, is neutral or colourless or indeterminate in character, it will not give rise to an inference that the domicil of origin has been abandoned. Secondly, on the other hand, a mere "floating intention" (to adopt the language in Story's Conflict of Laws (8th Edn) p 50) to return to the country of origin at some future period is not sufficient for the retention of the domicil of origin if the propositus has settled in some other territory subject to a distinctive system of law with the intention of remaining there for an indefinite time. In Stanley v Bernes ((1830), 3 Hag Ecc 373 at p 438), Sir John Nicholl contrasted the animus revertendi with
"that latent intention which pretty generally exists as a sort of natural feeling of 'panting for his native home'."
In Aikman v Aikman ((1861), 3 Macq 854 at p 858) Lord Campbell LC said:
"If a man is settled in a foreign country, engaged in some permanent pursuit requiring his residence there, a mere intention to return to his native country on a doubtful contingency will not prevent such a residence in a foreign country from putting an end to his domicil of origin."
So an intention of the propositus to return to his country of origin on such an indefinite event as when he has made his fortune (Bruce v Bruce, Doucet v Geoghegan), or when his mistress dies (Anderson v Laneuville ((1854), 9 Moo PCC 325 at p 334)),will not suffice to prevent the acquisition of a domicil of choice.
Against this background of law I turn to consider the facts of the present case. On behalf of the husband, I had his own evidence, and that of his mother and of Mr Torley, a business colleague. In support of the wife's case, I had only her own testimony. I did not feel that the husband, his mother or the wife were intending to give me an infaccurate account of events and declarations as they recollected them; but I was left under the impression that the recollection of each was to some extent coloured and distorted by interest and prejudice. On the whole, I preferred the evidence of the wife where it differed from that of the husband and his mother. Mr Torley was a good witness, but his testimony was on matters which only marginally affected the issue. Independently established events generally provide safer guidance in these cases than declarations of intention, if only because people are apt to have changing or wavering or even conflicting domiciliary sentiments; and I consider that it would be unsafe here to rely on the husband's assertions as to what were his intentions as to the permanence of his residence at various times and places.
The husband's father was born in Fifeshire about 1902. His ancestry was Scottish on both sides, and unquestionably he had a domicil of origin in Soctland. After attending local schools, he was educated at Watson's College in Edinburgh, the intention at that time being that he should enter the ministry of the Church of Scotland. However, after leaving school at the age of nineteen, he came to England, when he was aged twenty or twenty-one, to embark on a commercial career. He was employed by a Scottish firm (as it was described) and went abroad for them to the Far East. On his return, he set up home in England at Forest Gate in Essex, having married an Englishwoman. He was thenceforward employed by a firm of rubber brokers in Mincing Lane in the City of London. Some time before 1930, when he met the husband's mother, his first wife had died without having borne him any children. The husband's mother, too, was of English origin and she married his father in May, 1931. They lived first at his house in Forest Gate. The husband was born in London in 1932. He was given the names of Robert Mclaren, and was entered for education at his father's old school, Watson's. The boy wore the kilt as a child and paid visits to his Scottish relations. The husband's father also from time to time visited his relations in Scotland and, on a few of the occasions, he was accompanied by his wife. I was, however, left under the clear impression that Scotland, or at least the part where her in-laws lived, was uncongenial to the husband's mother. In about 1938, the father moved with his immediate family to a house at Banstead in Surrey. Thereafter he hardly paid any visits to Scotland except to attend family funerals. It was claimed that his health precluded such visits; but I did not find this explanation convincing.
Moreover, in the event the husband did not go to school at Watson's but to Bembridge School in the Isle of Wight; I was told that this was because no boarding houses had yet been built for Watson's and it was thought inexpedient that the boy should live with a family in Edinburgh while the war was on. In about 1950, the husband's father bought his last place of residence, Court Echo, at Banstead in Surrey. He lived there until he died. When in 1954 the husband went to work in Scotland, [F1] his father expressed his envy-he said that was what he himself had always wanted to do. The husband's mother told me that her husband had on many occasions discussed where they should live on his retirement from business. It was his intention to retire to the Highlands of Scotland, and she claimed to have been very much in agreement. However, the father never looked for a place to retire to-as I have said, he had virtually ceased to visit Scotland-and nothing more specific was mentioned than that they should ultimately settle down in the Highlands. Furthermore, the husband's father was not a director of his firm. He worked under a contract of service which did not stipulate for any retiring age, and his service was not pensionable. He had no endowment insurance policies, only those for whole life. He intended to work until he could work no longer. He died on 4 March 1962, just under the age of sixty, still in employment in London and still living at Court Echo. He had expressed the wish that his ashes should be scattered in Scotland, and this was carried out by the husband.
In my judgment, the husband's father died domiciled in England. His long residence in England was not neutral or colourless or indeterminate in character, as in Bowie (or Ramsay) v Liverpool Royal Infirmary. His life's work, his place of settled residence and his family were here. That he retained a feeling of sentimental attachment to the land of his origin, evinced by his wish to have his ashes scattered there, I have no doubt; but this is not sufficient for the retention of a domicil of origin: Platt v A-G of New South Wales. [F2] He may well have had a "floating intention" to return to the country of his origin in the indefinite and uncertain event of his retirement. Nevertheless, as Brett LJ said in Doucet v Geoghegan ((1878), 9 ChD at p 458):
"as the testator did not fix a date or make any definite condition by which the residence was limited to a definite time, it must be taken that his intention was to make his residence in England permanent."
These cases generally turn on their own facts and no one is precisely like another. The circumstances of Brunel v Brunel, however, bear considerable resemblance to those in the present case. It is true that there the intestate, whose domicil of origin was French, after his last return from France shortly before his death, stated that he did not intend to go back; but this does not appear to have been considered by Sir James Bacon, VC, as a determining factor. As in the present case, the deceased had established himself in business in this country and had married an Englishwoman. He resided here for more than thirty years, making only occasional business visits to France. Although he had refused to take out letters of naturalisation in this country on the ground that he might return to France, he was, nevertheless, held to have died domiciled in England. In the nature of things, a Scotsman more lightly acquires a comicil of choice in England than a Frenchman: see Whicker v Hume ((1858), 7 HL Cas 124 at p 159), per Lord Cranworth, and Moorhouse v Lord ((1863), 10 HL Cas 272 at p 286), per Lord Chelmsford.
The domicil of the husband's father at the date of his death is, however, not crucial here. For, by that time, the husband was over the age of twenty-one and thus independent of his father as to domicil. What is relevant to determine is the domicil of the father at the time of the husband's birth in 1932 and until he attained his majority in 1953. By 1953, the father had left Scotland for about thirty years and had been habitually resident in England for upwards of twenty-three years. Save for a further nine years of habitual residence in England, all the factors which have convicted me that the father died domiciled in England had by then manifested themselves. I therefore adjudge that by 1953 the father had acquired a domicil of choice in England. I have found it more difficult to determine whether the father had acquired such a comicil by 1932. Hindsight is admissible; it would be absurd to read the stars when the record lies open. Since, however, there is in question the abandonment of an undoubted domicil of origin in Scotland and the acquisition of a domicil of choice in England, the problem for decision is whether it is clearly shown on the evidence that by 1932 the father was residing in England with no intention of leaving it permanently. Had he, to speak more colloquially, settled down in England with the intention of making it his permanent home? By that time he had left Scotland for only nine years. There is no certain evidence as to how long by 1932 he had been residing in England after his return from the East, save that it was at least two years. The evidence does not, in my view, point clearly and unequivocally to the acquisition of a domicil of choice in England by 1932. I am not satisfied to the high standard of proof which the law demands that the father had by then abandoned his domicil of origin. It follows that the husband's domicil of dependence was at birth in Scotland and at the age of twenty-one in England. Which of these two is to be considered the husband's comicil of origin?
The point is of importance owing to the high degree of retentiveness which the law ascribes to the domicil of origin.
In my judgment, the domicil of origin of the husband was his domicil of dependence at birth, not at the time when he emerged from dependence. The only direct authority on the subject is an undefended divorce case where no reasoned judgment was delivered, but it supports this conclusion: Harrison v Harrison. In Firebrace v Firebrace ((1878), 4 PD 63 at p 64), Sir James Hannen, P., found that the respondent had a dependent domicil at birth in Barbados and a dependent domicil at majority in Australia. Sir James Hannen, said ((1878), 4 P. D at p 66):
"If he intended to abandon his Australian domicil of choice without a fixed intention of acquiring another, his domicil or origin would revive, and that was West Indian, not English."
This was plainly obiter, however, since Sir James Hannen continued ((1878), 4 PD at p 66), "But in fact there is nothing which shows that he abandoned his Australian domicil." In Re Macreight, Paxton v Macreight, Pearson J appears to have founded his judgment on the assumption that the domicil of origin is the domicil at birth, and that a different domicil of dependence acquired during the course of minority is not the domicil of origin. See also Crumpton's Judicial Factor v Finch-Noyes (1918 SC 378 at p 390), per Lord Johnston. I do not think that Lopes LJ in Urquhart v Butterfied ((1887), 37 ChD 357 at p 384) was adverting to this issue, though his words are susceptible of the inference that he took the contrary view. Scholarly opinion overwhelmingly concurs in the view that the domicil of origin is the dependent domicil at birth: see, for example, Dicey's Conflict of Laws (7th Edn), p 94; Foote's Private International Law (5th Edn), p 79; Cheshire, Private International Law (6th Edn), p 191; Wolff, Private International Law (2nd Edn), p 120; Graveson, The Conflict of Laws (4th Edn), p 84, p 88 f; Schmitthoff, The English Conflict of Laws (3rd Edn), p 89. Indeed, Westlake (Private International Law, s 248, s 261, (7th Edn) p 344 f, p 356) seems to stand alone in asserting the contrary. Finally, to regard the changed dependent domicil as one of choice (or "quasi-choice", the term suggested by counsel in Harrison v Harrison which has been adopted by some of the writers which I have cited) helps to limit the scope of the domicil of origin, the tenacity of which tends to produce some anomalies in contemporary conditions-for example, procuring that a man's fortune is taxed in accordance with the fiscal code of a society with which he may for long have ceased to identify himself, to the determent of the society the benefits of which he may have enjoyed for many years, merely because his severance from the old and his cleavage to the new cannot be demonstrated to the high standard of proof which the law demands of a change from a domicil of origin to a domicil of choice.
I, therefore, hold that the husband had a domicil of origin in Scotland, but a domicil (which is to be considered as a domicil of choice) in England when, on his majority in 1953, he became capable of acquiring an independent domicil.
[His Lordship reviewed the evidence concerning the period from when the husband left school at the age of sixteen or seventeen. This period included a period from the summer of 1954 until April, 1956, when the husband, having returned from the Far East, worked and was resident in Scotland. He married the wife on 14 February 1955. They left Scotland for Canada in April, 1959. In 1959 they left Canada for England. They lived in England thereafter, the husband inheriting his father's house on the father's death in 1962, but the husband acquired a lease in 1961 of an island in a Scottish loch as a holiday resort. The wife's petition was presented on 4 December 1962, which was the crucial date for the determination of the husband's domicil. Having considered fully the relevant evidence, which included among other matters the facts briefly summarised here, His Lordship continued:] The first issue which arises at this stage is whether the husband reverted to his domicil of origin in Scotland during his residence there between 1954 and 1956. He could do that not only by residing in Scotland with the intention of making it his permanent home, but also by leaving England with no intention of returning to live there permanently. What is the standard of proof of such a change of domicil? In Dicey's Conflict of Laws (7th Edn) at p 92, it is stated:
"The presumption of continuance of domicil varies in strength according to the king of domicil which is alleged to continue. It is weakest where that domicil is one of dependency and strongest where the domicil is one of origin."
There are dicta in some Scottish and Irish cases to support this statement; though I think that it is really more a matter of common sense and experience than a rule of law. The abandonment of a domicil of choice acquired dependently in favour of a domicil of origin re-acquired by personal volition must, in the nature of things, generally be of all changes of domicil the one the least onerous of proof. Nevertheless I am not satisfied that the husband was at any time between 1954 and 1956 living in Scotland with the settled intention of making it his permanent home or that he had left England without any intention of returning there permanently. In favour of the husband's contention I take into account particularly the attraction for him of the land of his fathers and that it suited his health. I also bear in mind such subsequent events as the rather Scottish nomenclature of his son and the choice of a place in Scotland for family holidays. On the other hand, his wife was English and the parents of both of them were settled in Surrey; but what has weighed with me most is the nature of the huband's employment and the fact that in the event he spent less than two years in Scotland. I think that throughout this time he retained his English dependent domicil of quasichoice; nor can I find anything in his subsequent history to point to its abandonment.
[His Lordship stated that that sufficed to dispose of the case and, having referred to certain matter which might become relevant in the case of an appeal, His Lordship concluded:]
My conclusion is, therefore, that the husband was domiciled in England at the inception of the wife's divorce suit.
Ruling accordingly.
Solicitors: Carnt & Mudie (for the husband); Bower, Cotten & Bower (for the wife).
Shireen Irani Barrister.