ARTICLES

The Law On Domicile Under Matrimonial Proceedings

Published

2 months ago

October 7, 2023

Stella Charles Akupue

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In private international law, the principle of domicile was first propounded and developed by the Italian school of Post glossators in the Middle Ages. This development arose due to the increasing ease of mobility of persons from one state to another, leading to the notion that individuals should be attributed to a particular legal system. Martin Wolff aptly described this notion as ascribing to any given individual a legal ‘center of gravity’ and determining which legal system has jurisdiction in cases related to personal law.

Domicile, as defined by the Blacks Law Dictionary, refers to where a person has established their habitation and permanent residence with no intention of relocating. There are different types of domicile: domicile of origin, domicile of dependency, and domicile of choice. The domicile of origin is the initial domicile a person acquires, determined by the domicile of their parents at the time of birth, as established in Bell v Kennedy.

The Law On Domicile Under Matrimonial Proceedings.

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Domicile of choice, on the other hand, is acquired by an adult with full capacity. It is obtained by meeting all the requirements of the domicile of the specific state one wishes to be domiciled. This can be achieved when an adult with sound mental capacity permanently settles elsewhere. Once the domicile of choice is acquired, the home of origin becomes dormant.

Domicile of Dependence pertains to married women, children under 21, and mentally disordered individuals. Married women acquire the domicile of their husbands upon a valid marriage. This domicile of dependence can be terminated through divorce or the death of one spouse.

Domicile is a significant topic, particularly in determining questions of personal law, especially in Divorce Proceedings. The Matrimonial Causes Act in Section 2 stipulates that a petitioner must be domiciled in Nigeria when filing a divorce petition. This requirement was illustrated in the case of Omotunde v. Omotunde (2020) LPELR 10194 CA, where the petitioner, domiciled in the United States of America since 1993, filed a petition in Nigeria in 1998. The Court ruled that he could not be considered domiciled in Nigeria at the time of filing.

The Law On Domicile Under Matrimonial Proceedings.

Regarding female spouses, Nigeria inherited the law from the United Kingdom, where a wife inherited her husband’s domicile. However, this concept is now considered outdated and archaic. Forward-thinking jurisdictions like England have abolished it through the Domicile and Matrimonial Proceedings Act 1973, allowing married women to have a domicile independent of their husbands. This change has been exemplified in cases like Inland Revenue Commissioners v Duchess OF Portland.

This domicile class lacks common sense and objective reasoning, as it assumes that a wife cannot be independent from her husband. Lord Denning aptly described it as “the last barbarous relic of a wife’s servitude.”

In a positive move, the Nigerian Court has taken steps to abolish this domicile class. The Court in Bhojwani v Bhojwani, as per Uwaifo JCA, stated that there are strictly two types of domicile: domicile of origin and residence of choice. There is no separate domicile known as domicile of dependence.

As issues related to domicile continue to arise in legal matters, it will be intriguing to observe the Court’s decisions on similar cases in the future.