CONFLICT OF LAW: DOMICILE AND NATIONALITY.

INTERNATIONAL:
1.- INTRODUCTION.
The aim of jurisdiccional rules on conflict of law finds the appropiate frame in order to apply legal rules among citizens of different countries. The problem arises when there are not connecting factors or those factors are different.

In order to understand the different connecting factors is necessary to look at it from a historic point of view. The Roman jurisdiction distinguishes between the “statutum reale” and “statutum personae”. The former is a legal situation while the latter is a position of fact . However, the conflict of laws started to arise around XII century when in the north of Italy many independent cities existed which established relations among them through trade. In many places the laws of the neighbouring city toward the foreign of where he came , began to be applied.

Before of the liberal revolutions, the domicile concept was related with the rules that the lord imposed to his servants in his territory. The English liberal revolution was too early, exacly in XVII century. England established the liberal values such as human rights or fulfilment of the law for the governators . The domicile concept, although with other meaning, was not changed, influencing also the future law of United States and the rest of its colonies.

The French Revolution, however, was more lately, about 1793, changing the concept of domicile as factor connector for the nationality. The new concept was spread to all the European continent. The English law developed the concept of domicile as “statutum personae” while French law developed it as “statutum reale”, turning it into nationality.

Here it is where appeared the division between European continental countries, which choose the nacionality as general criteria in order to apply the law to the person and family relations, while Anglo-Saxon law and American law keep the domicile . Other countries such as India or Cyprus use other connecting factor, where the base is the “adherence to a particular religion” .

2.- DOMICILE AND NATIONALITY.
Lord Cranworth in Whicker v Hume (1858) described domicile as “permanent home”. This concept is supported as connecting factor which allows to show the personal liberty where the particular can choose where to live and therefore what law will apply to him .

The domicile concept, however, has different interpretations. In United States it is not necessary the “animus”, it is sufficient to fix the residence there . In English law there are two elements: The “factum”, like American law, and moreover, the “animus”. In other words, to live in a country and to have the intention of not leaving to other nation.

In in b. Raffenel a woman left to France with the “animus” of not coming back to England, but in the trip she felt ill and tried to come back to her country, but she died. She died domiciled in France. An element essential to the domicile, therefore, is the “animus” or intention of the subject. The intention is related to the freedom of election of the subject, but in the cases where a person places his residence because of other matters such as oppression, enemy invasion or employment, he or she might acquire it if he or she has intention. For example in Stone v Stone an United States citizen who worked in England acquired it. Finally, the intention must be described as the permanent and indefinite residence. The person must attempt to stay for a significant time in the country .

The nationality as connecting factor is developed in the European countries and their former colonies. The historical and social reasons were the strong immigration from Europe to America in the XIX century, unlike of America which was a receptor country, and went on with the domicile concept. Moreover, the European law developed the personal law in a special way .

Unlike the domicile, in European countries nationality it is too difficult to change it because it has a strong concept of ‘State’, and in this context the intention of a subject is not especially relevant. In Bullock, a Canadian man who resided in England for 44 years, kept his Canadian nationality.

Many jurists in United Kingdom defend replacing domicile by nationality; however, the Law Commision noted “domicile being based on the idea of the country where a person has his home is a more appropiate concept for determining what system of law should govern his civil status” .

The nationality has many advantages: first, nationality is a stable connection; indeed, it is too difficult to change it, unlike domicile, increasing the juridical security. Secondly, nationality guarantees the application of only one law on the person, independently of where he resides, acts or emigrates. Finally, the nationality allows the foreigner to maintain his legal bonds with his country of origin harnessing the cultural diversity.

The disadvantages of nationality are: first, nationality does not guarantee the application of the law where the subject develops his life. Secondly, the nationality is not useful in countries which receive foreigners because it applies foreign rules preventing the development of the objectives of the State and the govern. Thirdly, in nationality may exist two nationalities at the same time preventing the achievement of the connecting factor . Finally, nationality is not useful when there are different legal systems as in United Kingdom or the United States .

The division in the world of the law between domicile and nationality creates many problems, avoiding many international agreements. One mechanism in order to get and find the harmony was the “renvoi” theory, applied by the English courts in XIX century. In those years past, many British people left for Europe, changing their domicile, but they did not acquire the nationality of the new country living of independent form. In fact they wrote up their testaments under the English rules which were not recognized for the new states.

Hebert Senner in Collier v Rivaz (1841) stated that the courts located here decided as if they were located in Belgium. The Belgium law only was applied to the testaments written for Belgium people, while testaments of the foreigners should be regulated through the law and rules of its countries of origin. This is the oldest case; however, the “renvoi” doctrine was applied in other European countries as Italy. The “renvoi” is based on the conformity between the court which judges the case and the hypothetical decision that the competent court had taken.

In XX century the “renvoi” theory saw a regulation in an international convention (1955) which looked at the resolution of conflicts between national law and domicile law, but this teatise never had effect, however, for first time it spoke of “habitual residence”. Some years later, during the second period of the XX century, the Hague Conference developed this expression as a point of union between domicile and nationality, through different agreements relative to nourishing questions, testaments or protection of the minor .

3.- HABITUAL RESIDENCE.
The problem with the nationality and the domicile concept is that, sometimes, it may be unrealistic and inappropriate for the citizen –as we had seen before by Bullock-. Habitual residence, as a connecting factor, is a relative recent phenomenon which appeared about the decade of the 50’s, being developed by the Hague Conference in the field of private international law in order to try to find a new factor which could be a focus of union between “the common law concept of domicile and the civil law notion of nationality” . When the rules are introduced throughout the European Community, such as divorce, separation and annulment, the habitual residence becomes a connecting factor.

The House of Lords has stated that the habitual residence is a question of fact and must be taken in account on the base of the special characteristics of the particular case. The rules on habitual residence are: first, the burden of the test of the change lies on the subject alleging the change.

Secondly, in some cases, there is not habitual residence. In Nessa v Chief Adjudication Officer, the House of Lords noted that in certain occasions, in order to make an effective legislation, must not be considered the habitual residence.
Thirdly, a person may have more of one residence. In Ikimi v Ikimi a couple who maintained the matrimonial homes, one in England and an other in Nigeria, had the residence in both countries. Here there is a significant difference with the domicile law, because through the habitual residence you may have two residences while, with the domicile law, you only can have one residence.

Finally, the habitual residence is based on the English law, and not according to a foreign law of the subject who alleges.

It needs two elements to acquire the residence. On the one hand, the “factum”, and on the other, the “animus”. The person needs to stay one year or more in other country to acquire it since the moment in which he established his home in the country. In this case, there is a decisive element: the objective fact, in other words, to be living permanently in the country being the “animus” or intention less important, unlike of the domicile law.

The problem arises when the subject is living in a period shorten than a year. A person may lose it when he will leave for other country, however he will not acquire the residence just by arriving in the new country. Lord Brandon says in In Re J (Abduction: Custody Rights) that it is necessary an appreciable period of time.

The period of residence, however, may be shorter. The House of Lords in Re S (Custody: Habitual Residence) stated that if the person has the intention of settling permanently into the country, he may acquire the residence “very quickly”, as in V v B (Abduction): the habitual residence was acquired in Australia staying less than three months. On the other hand, in Armstrong v Armstrong after 71 days the residence was not acquired .

The advantages of the habitual residence mainly are: to apply the law of the place of the subject’s choice, knowing better the rules of the State and that the habitual residence is based on objective facts –unlike domicile and nationality law, which are based on juridical concepts-, knowing more easily in what country the person has his residence.

4.- CONCLUSION.
Many authors ask themselves if the domicile law is hopelessly out of date. They defend a change of the English domicile law, more accordance with the European Continental law.

It is truth that the domicile law was created in the XIX century. In fact, the description of the domicile as “permanent home” was stated by Lord Cranworth in 1858 , having into account the special circunstances of those centuries. But it is also certain that the European continental concept, the nationality, was developed according to its own characteristics. We should remember that Europe in XIX century was an emigrant continent, while the younger United States was an immigrant continent . Under this context the Anglo-Saxon law developed domicile as a connecting factor, while Europe law developed nationality as a connecting factor.

In Europe the concept of nationality kept on evolving through the laws of the different European countries, adapting it to the new social and juridic context. The trouble appeared when the different states tried to make international agreements with different connecting factors. Moreover, the Brussels I Regulation adopted the concept of nationality in order to regulate civil and trade matters . The domicile law did not change, making very difficult the international agreements .

I do not agree with A.L Calvo Caravaca. In his opinion, the domicile law avoids the cultural diversity because the domicile law binds the foreigner to adaptation to the rules of the country of choice , but at the same time I believe that the domicile system law helps the immigrants to integrate themselves in the societies, unlike nationality which may help to create juridical social ghettos.
Actually, there are three important connecting factors. During the second period of the XX century the Hague Conference developed a new connecting factor: the habitual residence in order to get international teatise.

The domicile law must take into consideration its political, social and cultural reality. United Kingdom is an important member of the European Community. Therefore, it is very important that domicile law is reformed and adapted to the European rules, to get the harmony inside the European Union, facilitating the international agreements.

ALBERTO BAEZ GIL.











BIBLIOGRAPHY:

1. -C.M.V.Clarkson and Jonathan Hill: The conflict of laws. Third edition.

2. -Tito Ballarino: Universty of Pavoda (Italy) “Residencia habitual como punto de conexión”. On-line: http://www.codigo-civil.net/blog/wp-content/uploads/2006/09/ballarino.doc

3. -A.L.Calvo Caravaca y J. Carrascosa González: Derecho Internacional Privado. Third edition.

4. -Peter Stone: The conflict of laws.

5. -J.G Colliner: Conflict of laws. Third edition.

6. -Liseth A. Mojica Gómez: Manual Práctico de Derecho Internacional Privado.

7. -S.Bromley: Historia del mundo moderno. Cambridge University Press.