Law Drafting Instructions:
Abolition of the domicile of dependence for married women.
Contacts
Ministerial Sponsor: Assistant Minister for Home Affairs
Instructing Officer: Ben Sandeman
Legal Adviser: Veronica Dempsey
Date of Instructions: 17/06/2021
1. Introduction
- The Assistant Minister wishes to issue law drafting instructions to abolish the customary law rule that a wife’s domicile is that of her husband. After consultation with the Law Officers Department, it is agreed the most prudent way to resolve this discrimination against married women is by the introduction of statutory provisions, which will afford married women in Jersey the right to choose their domicile.
2. Background
- The issue of the customary law position of the domicile of dependence for married women is explained and explored in a short article in the June 2013 edition of the Jersey & Guernsey Law Review | Miscellany (JGLR) titled “Discrimination and domicile”[1]. Helpfully, this article not only explains the problem, but also identifies a potential solution by reference to the action taken in English law, as outlined in section three below.
Ratification of the Convention on the Elimination of Discrimination Against Women
- The current impetus to address the issue comes from the UK’s ratification of the Convention on the Elimination of Discrimination Against Women (CEDAW) being extended to this jurisdiction earlier this year.
- When the Island’s authorities requested extension, the request was conditional on a number of reservations being entered, including in relation to Article 15(4) of CEDAW which provides – “States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence in domicile.”
- As explained in the referenced article, according to the customary law of Jersey, a wife’s domicile is that of her husband, and contrary to Article 15(4) a wife has no freedom to choose her domicile. Therefore, a reservation had to be entered because otherwise the UK, as the State party to CEDAW, would be in breach of this treaty obligation. The UK agreed to reservations being entered, but on the understanding that action would be taken by Jersey’s authorities to address this (and other areas of non-compliance with CEDAW) as soon as possible.
Meaning of Domicile
- For information purposes the meaning of domicile is explained below. This is on the understanding that there is no material difference between the way this term is interpreted in Jersey or English law.
- According to Domicile | Practical Law – Thompson Reuters[2] broadly speaking “domicile can be summarised as an individual's permanent home. It is a common law concept that the courts use to determine which legal system applies to an individual, where that individual has connections with more than one jurisdiction. Domicile is relevant in matters of personal law and where there is a conflict of laws. The concept of domicile has also been imported into UK tax legislation to determine an individual's liability to income tax, capital gains tax and inheritance tax. The common law concept of domicile should not be confused with the statutory concept of deemed domicile.”
- “Domicile is a legal construct used in the United Kingdom to identify the system of personal law that governs the individual. A person is born with a domicile and dies with a domicile and always has one in the period in between.
- There are three forms of domicile: domicile of origin; dependent domicile; and domicile of choice.
Domicile of origin
- When a person is born they acquire a domicile of origin. A new born baby's domicile will reflect the domicile of their father if they are legitimate or from their mother if she is unmarried at the moment of their birth.
Domicile of choice
- Abandoning one's domicile of origin in favour of a domicile of choice is not lightly done. First, a person must physically move to another jurisdiction. Second, the person must consciously, and very deliberately, make a full and unconditional choice to remain living in that other jurisdiction permanently or indefinitely. Accordingly, a temporary stay in a different jurisdiction, even for a significant period of time, will not result in the loss of a domicile of origin simply by the effluxion of time or the degree of integration into the social environment of the new jurisdiction. However, once both the physical move and the necessary intent are achieved, a domicile of origin is abandoned and supplanted by the new domicile of choice. It is not necessary that a person lives in a country for a specified period of time to acquire a domicile of choice there, simply that they are living in that other jurisdiction and they have freely formed the intention to remain living there permanently or indefinitely.
Dependent domicile
- Whilst a minor, a child's domicile will be dependent on that of its parents. If the parents' domicile changes, then so will the child's. It is worth again highlighting that in Jersey law a wife’s domicile is dependent on her husband, this is in the same way a child’s domicile is dependent on that of their parents.
Revival of domicile of origin
- It may happen that a person adopts a domicile of choice but then, for one reason or another, their plans change and they decide that they no longer wish to live permanently in the country of their domicile of choice. Unless an adult has a domicile of choice they will automatically revert their domicile of origin.”
- Precedent is set in Jersey regarding the abandonment of a domicile of choice by a judgment of the Royal Court - In re Lundquist [1997 JLR Notes – 4b][3].
Reference to ‘domicile of dependence’ in Jersey legislation
- The only reference to a domicile of dependence that is identifiable on the Jersey Legal Information Board website is explored in the aforementioned JGLR article, namely Article 30 of the Probate (Jersey) Law 1998[4] (the “1998 Law”). The 1998 Law was amended by the Civil Partnership (Jersey) Law 2012. Article 30 effectively negates the customary law dependent domicile of spouse rule for probate purposes, as follows –
“30 Domicile of dependence for probate purposes
(1) For the purposes of a grant in and the distribution of the movable estate of a deceased person who has at any time been married or in a civil partnership, the deceased person’s domicile shall be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.
(2) For the purposes of a grant in and the distribution of the movable estate of a deceased minor, the deceased minor shall have first become capable of having an independent domicile when (if at all) the deceased minor attained the age of 16 years or married under that age.”
- Having consulted with the Law Officers Department it is thought that no potential adverse consequences arise from a wife’s dependent domicile being abolished in the areas of law in which domicile may be relevant such as succession, family or taxation.
3. Law Drafting Instructions
- The Minister wishes to abolish the current customary law rule, which provides for a wife’s domicile to become that of her husband on marriage. How this can be achieved in terms of what enactment would provide for that, and the wording to be used, are matters for the legislative drafter to determine.
- However, it is worth noting, s.1 of the Domicile and Matrimonial Proceedings Act 1973[5], that was used for the same purpose in the UK, and may be a useful precedent, and is provided below for ease of reference –
- “1 Abolition of wife’s dependent domicile.
(1) Subject to subsection (2) below, the domicile of a married woman as at any time after the coming into force of this section shall, instead of being the same as her husband’s by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.
(2) Where immediately before this section came into force a woman was married and then had her husband’s domicile by dependence, she is to be treated as retaining that domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until it is changed by acquisition or revival of another domicile either on or after the coming into force of this section.
(3) This section extends to England and Wales, Scotland and Northern Ireland.”
- Essentially the drafted provisions should enable two things:
1) The domicile of a woman who is married after the coming into force of these provisions, is to be ascertained in the same way and by the same factors as any other individual who is capable of having an independent domicile.
2) The provisions should not alter the domicile of women who are already married, instead the provisions should permit a wife who was married before the coming into force of the provisions to change her domicile in any of the ways open to an individual capable of having an independent domicile.
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