Where Do You Think You’re From?
Simon J. R. Davis · October 3rd, 2007
If someone asked, “Where are you from?” what would you say? Would you tell them you’re from the country where you were born, the country you have lived in the longest, or the country you’re working in for a couple of years? And does it really matter which answer you give?
When a lawyer in a common law jurisdiction such as Bermuda (as opposed to a civil law jurisdiction) (jurisdiction being the territorial range of the law’s control) asks you where you’re from, your answer could have surprising legal results. This is because factors like a person’s residence, nationality and domicile are some of the ways in which different countries—especially their tax authorities—link us all to our personal system of law. In common law legal systems, that personal law is what is called your “domicile” yet domicile is not the same as nationality, citizenship and residence.
From a legal perspective, the significance of your answer is twofold: first, it can determine which system of law is going to tax you; and second, it is the law in accordance with which personal aspects of your life are determined, such as the validity and interpretation of your Will or, if you do not have a valid Will and die intestate, how your property will pass. Taxation, however, tends to be the driver behind deciding the domicile of most people. This is why it is important to be conscious of the effects of moving country.
Domicile is often confused with residence. Your residence is, broadly, the jurisdiction in which you live for most of the year. Your domicile, however, is the jurisdiction with which you maintain the closest links. A Scotsman who works in London for most of the year, for example, can be resident in the jurisdiction of England and Wales, but be domiciled in Scotland, because that’s where he has kept a home, his bank accounts, most of his clothes, a car and family. Scottish law is, therefore, his personal law.
Domicile is an old common law concept. It has evolved through case law, which has established some rules:
- when a person is born to married parents, he/she takes his/her father’s domicile. This is the “domicile of origin.” A person born to an unmarried woman or to a widow takes his/her mother’s domicile as the domicile of origin. The domicile of origin has a special status and is difficult to dislodge. Even if later displaced by a domicile of choice (see below), it can, in certain circumstances, revive automatically—sometimes, with unexpected consequences; and
- a “domicile of choice” can replace the domicile of origin when someone over the age of sixteen (a) moves to another jurisdiction with (b) the intention of settling there permanently, severing all ties with the domicile of origin. Moving abroad to work does not necessarily mean that you have changed your domicile, unless you intend the new jurisdiction to be your permanent home beyond expiration of your work assignment. However, intention is often difficult to prove.
The point here is that our lives have become very mobile. The world is a more accessible place to us than it was to our parents. When we move, however, we don’t tend to consider the legal effect of the move in terms of our domicile. Consider my wife: her domicile of origin is Jordanian. She moved with her family from Jordan to London when she was twelve. Apart from studying abroad, she then lived in the South of England until we were married and shortly afterwards moved to Bermuda together. Can you trace her domicile status? Arguably, it’s as follows: her domicile of origin is Jordanian. She then attained an English domicile of choice. When we moved to Bermuda, however, it is arguable that her Jordanian domicile of origin revived.
Next time someone asks you where you’re from, think about answering that question in terms of domicile. You may be surprised what the law says about where you’re really from!