The Law On Domicile Under Matrimonial Proceedings
In private international law, the principle of domicile was first propounded and developed in the Middle Ages by the Italian school of Post glossators, as a result of the development in the ease of mobility of persons from one state to another. This led to the reasoning that persons should be attributed to a particular legal system. The reason for this line of thinking includes the perceived importance attached to the notion of belonging to a country/state; this Martin Wolff appropriately posited as ascribing to any given individual a legal ‘centre of gravity’; and determining which legal system has jurisdiction in cases pertaining to personal law.[i]
According to the Blacks Law Dictionary, Domicile is the place where a person has fixed his habitation and has a permanent residence, without any present intention of removing therefrom. The different types of Domicile are domicile of origin, domicile of dependency and domicile of choice. The first domicile which a person acquires is the domicile of origin. This type of domicile is determined by the domicile of the parents at the point of a person’s birth, as determined in Bell v Kennedy.[ii] Domicile of choice is acquired by a person of full capacity. This is gotten by fulfilling all the requirements of domicile of the particular state one wants to get domiciled in. This can be acquired by an adult of full mental capacity acting in his own will to permanently settle elsewhere. Once the domicile of choice is acquired, the domicile of origin of such person goes into abeyance. Domicile of Dependence focuses on married women, children under 21 years, and mentally disordered persons. Married women acquire domicile being that of the husband upon celebration of a valid marriage. This domicile of dependence can apparently be terminated either by divorce or death of one of the couple.
The topic of domicile is important as it is a guide for determining the question of personal law, especially when it relates to Divorce Proceedings, as the Matrimonial Causes Acts in Section 2, states that a petitioner must be domiciled in Nigeria at the time of his filing of a petition for divorce. This was illustrated in the case of Omotunde v. Omotunde (2020) LPELR 10194 CA, wherein the petitioner, who had been consistently domiciled in the United States of America since 1993 up to the time he filed his petition on the 21st day of April, 1998. The Court held it cannot be said of him that as at 21/4/98 when he was filing his petition through his learned Counsel, he was domiciled in Nigeria.
Regarding female spouses, due to the fact that Nigeria inherited its laws from the United Kingdom, Nigeria adopted the position that a wife inherits the domicile of her husband. It’s important to note that this concept is an archaic and anachronistic one which views the wife as incapable of having an independent existence from the husband, therefore appurtenant to the domicile possessed by the husband. Law being a dynamic element: forward thinking jurisdictions such as England has abolished this by enacting the Domicile and Matrimonial Proceedings Act 1973 which provides that married women can have domicile independent of their husbands. This has been exemplified in cases such as Inland Revenue Commissioners v Duchess OF Portland.[iii] The existence of this class of domicile eludes common sense and objective reasoning especially because of the fact that the woman before and during the existence of marriage may be subject to different laws from that of the husband and by reason of the relationship that exists between them, will not offer justification for the imposition of the domicile of the husband upon the wife. Lord Denning in relation to this point stated, “the last barbarous relic of a wife’s servitude”.
On the side of judicial activism, the Nigerian court has put a step forward in the abolishing of this class of domicile. The court in Bhojwani v Bhojwani per Uwaifo JCA stated that;
“there are strictly two types of domicile. One is domicile of origin and the other, domicile of choice. There is no separate domicile known as domicile of dependence as was canvassed by Professor Adesanya in the present case and also in Osibamowo v. Osibamowo, and there in that case accepted by this court[iv].
While the issue of domicile continues to come up in legal matters, it will be interesting to see the decision of the Court in similar matters going forward.
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[i] Martin Wolff, Privte International Law (2nd ed. Clarendon Press 1950) 5
[ii] (1868) UKHL 566 1.
[iii] [1982] BTC 65.
[iv] Ewenike E. Ebuka and Araka Chukwunweike. (2023). Gauging The Current Position Of The Principle Of Domicile In Nigeria. [Online]. DjetLawyer. Available at: https://djetlawyer.com/gauging-the-current-position-of-the-principle-of-domicile-in-nigeria/ [Accessed 28 June 2023].
