Out with the Old and In with the New: Bringing the law of domicile into the twenty-first century

Clayton-Helm, Lauren (2020) Out with the Old and In with the New: Bringing the law of domicile into the twenty-first century. Journal of International and Comparative Law, 7 (1). pp. 199-228. ISSN 2313-3775

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Abstract

Domicile is the preferred connecting factor in matters of personal status within the law of England and Wales particularly within family law, yet it is a concept that has been neglected for several years. While the Law Commission proposed reform over 30 years ago, the requisite developments never ensued. Meanwhile, society and other aspects of the law continued to evolve, adding to the already problematic area. This is particularly apparent when assessing the domicile of a child with same-sex parents. The current provisions assign a child’s domicile based on the gendered roles of mother and father dependent upon the child’s legitimacy, which, assumes that all children have parents of the opposite sex. This outdated approach means that a child of a same-sex couple has no way of ascertaining where they are domiciled. In proposing a holistic reform of the law on domicile, this author utilises the developments around same-sex relationships not previously discussed in the literature on domicile, to reignite the debate on domicile reform. With a focus on modern society this article considers the faults with the current common law concept of domicile, proposes policy sensitive reform and considers habitual residence and nationality as an alternative, before concluding that a reformed version of domicile still has its place within the twenty-first century.

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