COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR NICHOLAS DAVIDSON
SITTING AS A DEPUTY JUDGE OF THE
HC 04 C00035
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
MR JUSTICE LEWISON
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MR PHILIP NOBLE (instructed by AEP Zaleski ) for the Respondent
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Lord Justice Mummery :
Domicile: the legal principles and proof
"First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time." [As pointed out by Buckley LJ in IRC v. Bullock  1 WLR 1178 at 1184H Scarman J's formulation "for an unlimited time" requires some further definition]
"(1) The domicile of origin adheres-unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact-of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres…."
"…It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change… What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin  2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
Role of Court of Appeal
Domicile: the Cyprus connection
Domicile: the English connection
Judge's decision on domicile
" This is a difficult case because my task is effectively to identify the intentions of a man who not only kept his true intentions [to himself], but whose statements about his intentions would often not be reliable. Of his attachment to, his love for, Cyprus, there is no doubt. That his truly first choice looking back over 50 years, would not have been to live here for most of his life, there is also no doubt. My judgment is that his intentions, as his behaviour, adapted over time to his circumstances. Had he merely continued to have a string of short-term girl-friends on a casual basis, he might well eventually to have decided to sell up and go and live permanently in Cyprus. But he did not. As it happened, he formed a successful relationship with another young woman, from an East European country. They lived happily as man and wife, and would have become man and wife. At a point which I would put between the Will (1995) and the date when Miss Cyganik understood she had obtained the commitment to marriage (1999) I believe the line was crossed at which Mr Nathanael's intention was to reside in England and Wales, in the traditional words, "permanently or indefinitely"
"The tie of the blood relationship was very strong for him for some purposes (reflected in his will) but his own life revolved around his world in London. For nearly 30 years he could have lived in Cyprus had he chosen, albeit not in the part of the island which was special to him. It was home to his parents during their lives. It was and is home to Helena, with whom he was in close touch even if their relationship should probably be described as fiery rather than as warm. But he stayed in London and made his life here, away from his family…."
(1) First, the question under the 1975 Act is whether Andreas was domiciled in England and Wales at the date of his death. Although it is helpful to trace Andreas's life events chronologically and to halt on the journey from time to time to take stock, this question cannot be decided in stages. Positioned at the date of death in February 2003 the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that "Life must be lived forwards, but can only be understood backwards" resonates in the biographical data of domicile disputes.
(2) Secondly, special care must be taken in the analysis of the evidence about isolating individual factors from all the other factors present over time and treating a particular factor as decisive. In this case the deputy judge carefully considered the long residence in England in the context of Andreas's continuing connection with Cyprus throughout his time here. In relation, however, to the years after 1995 the focus of the judgment is almost entirely on the relationship with Renata, their engagement and the wedding plans. Nothing much else happened between 1995 and 2003 that could have altered the agreed position that, despite having lived most of his life from the age of 19 in London and having made his fortune here, Andreas still retained, at the age of 55, his Cypriot domicile of origin. The development of the relationship with Renata was the only factor from which an inference could be made that Andreas changed his mind in the period 1995 to 1999/2003 about where he would make his permanent home. The judge's treatment of that one factor as decisive or conclusive of domicile must be examined with care. As appears from the authorities, marriage by a man with a domicile of origin in one country to a woman domiciled in another country and post-matrimonial residence with his wife in that other country for many years are important considerations, but they are not conclusive. The matrimonial factor does not, as a matter of law, mean that the husband acquires a domicile of choice in that country and abandons the domicile of origin, to which he has not actually returned to live: IRC v. Bullock  1WLR 1178; see also Dicey & Morris on The Conflict of Laws 13th Ed para 6-049 and Abraham v. A-G  P 17. The court was also referred to Forbes v. Forbes (1854) Kay 341; Aitchison v. Dixon (1870) LR 10 Eq Cas 589; and A-G v. Yule ...1931) 145 LT 9 at 16,17. They all make interesting reading, but a comparison of the facts of one domicile case with the facts of another domicile case is of limited assistance in deciding this case.
Lord Justice Longmore:
"The comparative opulence of the wife can make no difference. The residence and home at Brighton were not the less his because he may have deferred, however implicitly, to her wishes. It indeed makes the conclusion in favour of a Brighton domicile irresistible when we find that it was in the highest degree improbable that the wife should ever have voluntarily returned to a Scotch home; that the husband had every motive of interest, of gratitude, and of affection to say to his partner,
'Your country shall be our country, the home of your selection shall be our home.'"
Mr Nathanael was not dependent on Ms Cyganik to anything like the extent of Mr Allan and it does not seem to me that the value of this authority is any greater than that of Forbes.
"Originally it was a good idea; but the once simple concept has been so overloaded by a multitude of cases that it has been transmuted into something further and further removed from the practicalities of life."
This observation has not been preserved by subsequent editors (6th edition (2005)) but it deserves to be.
Mr Justice Lewison: