IHTM13023 - Change of Domicile: Domicile of Dependency

Not everyone has the capacity in law to change his or her own domicile by their own act. Two cases are considered here; children born in wedlock and woman who were married prior to 1974.

While under the age of 16 (16 in Scotland, with effect from 25 September 1991, by virtue of Section 7 of the Age of Legal Capacity (Scotland) Act 1991 and 12 for females and 14 for males before then) your domicile will change with any changes in your father’s domicile. This is called a domicile of dependence.

Before 1974 the domicile of a married woman was dependent upon the domicile of her husband. So if he had a different domicile at the time of the marriage and/or subsequently chose a new domicile the wife took his domicile or new domicile as a domicile of dependence so long as they were married. Upon divorce or upon his death this domicile continued until changed, i.e. the domicile of origin did not revive.

As a result of the Domicile and Matrimonial Proceedings Act 1973, this is no longer the case for marriages after 31 December 1973 and for those women who were married at 31 December 1973 the domicile of dependence was re-classified as a domicile of choice on 1 January 1974. Changes were also made to the position of children whose parents were living apart. This applies to the UK.

Example

In 1940 Angela was born and raised in New South Wales to parents who were always so domiciled. Accordingly, she has a domicile of origin in New South Wales (not Australia) and this did not change during her minority.

In 1960 she married Barry, who was domiciled in England although he was currently working in West Germany (as was). So Angela now has a domicile of dependence in England.

In 1963, while still resident in West Germany they had a son Charles. His domicile of origin is also England. They returned to England in 1966.

However, in 1970 Barry decided to leave England for good and move to Spain permanently (a domicile of choice in Spain). Angela and Charles did not want to go and stayed in England most of the time. Despite this Angela & Charles now have a Spanish domicile (of dependence).

In 1972 Angela & Barry separated. Angela broke her ties with all other countries and decided to stay in England permanently with Charles. Neither of these events changed her domicile. She still has a Spanish domicile while married to Barry.

On 1 January 1974, the domicile of dependency ceased so that Angela now has a domicile of choice in Spain. However, if she is still resident in England and still intends to stay permanently in England she now acquires a domicile of choice in England instantaneously.

As a result of the 1973 Act Charles’ domicile is now dependent upon his mother’s domicile and acquires a domicile of dependence in England. Charles can change his domicile on or after his 16th birthday in 1979.