Wednesday, July 21, 2021

The Meaning of Domicile: Domicile and Residence Defined


A person’s residence is the place where he has his habitation; legally, residence means the place where a person normally resides (Civil Code of Ethiopia Art. 174).  In Ethiopia, when a person lives in a place for three months, he is deemed to have his residence there (Art. 175/2). While residence may have legal significance for certain purposes, e.g., local jurisdiction, it is not, on the whole, a significant legal contact. 


Domicile differs from residence in two respects.  First, domicile is a unitary concept; a person may have several residences (Civil Code of Ethiopia, Art. 177/1), but only one domicile at a given time (Art. 186).  The latter statement must be taken to mean that he may only have one domicile at a time under the law of particular state.  As we will see, different states have differing conceptions of domicile.  Ethiopia may find that a person is domiciled in Ethiopia in accordance with the provisions of the Ethiopian Civil Code; France may find that the same person is domiciled in France under the provisions of the French Civil Code.  With this qualification, however, a person can have only one domicile at a given time.   Secondly, domicile denotes an element of permanency; it is the place where a person resides and has established his interests with the intention of living there “permanently” a term which also has different meaning.  But we may say as a general proposition that domicile requires residence in a particular place coupled with the intention to live there



Domicile under the Civil Code 

Article 183 of the Civil Code provides that “the domicile of a person is the place where such person has established the principal seat of his business and of his interest with the intention to reside there permanently.” We must define the word “permanently” in this context, and it is submitted that “permanently’ should mean “for an indefinite period of time.”  What may be called a “floating intention to return” should not be sufficient to prevent a person from acquiring a domicile here.  For example, let us assume that a Greek merchant comes to Ethiopia, brings his family with him, and invests substantial amounts of capital in a business.  He plans to return to Greece when he retires.  He should be considered domiciled in Ethiopia, as his intention is to remain in Ethiopia indefinitely. 


This interpretation of domicile is buttressed in Ethiopia by the provisions of Article 184 of the Civil Code, which provide as follows: 

1)       Where a person has his normal residence in a place, he shall be deemed to have the intention of residing permanently in such place. 

2)       An intention to the contrary expressed by such person shall not be taken into consideration unless it is sufficiently precise, and it is to take effect on the happening of an event which will normally happen according to the ordinary course of things. 


For example, if a person came to Ethiopia to work on a five year contract, intending to leave after the expiration of the five years, he would not be domiciled in Ethiopia though he has his residence here.  The intention to leave is sufficiently precise and will take place upon the happening of a definite event i.e. the expiration of the five years.  In the case of Shatto v. Shatto [Civil appeal No. 784/56, Journal of Ethiopian Law, 199 (1964)], the Supreme Imperial Court construed Article 183 and 184 and concluded that “permanent” meant for an indefinite period of time.  The person whose domicile was in question was a “safari outfitter,” carrying on his private business here, and had been resident in Ethiopia for six years.  The High Court (with one member dissenting) denied his petition for homologation of divorce on the ground that he was not domiciled here, as he might some day leave the country (he was an American citizen); therefore, it concluded that he did not “intend to live in Ethiopia permanently.”  In reversing the decision, the Supreme Imperial Court held that “the majority was certainly wrong to foresee too much the future.” Since he was residing in Ethiopia and has his business here, the presumption of Article 184 applies; in the absence of clear evidence of contrary intention, the presumption was not rebutted, and he was deemed domicile in Ethiopia.  To the same effects is the case of Zissos v. Zissos (Civil Appeal No. 633/56), involving a Greek national who had lived in Ethiopia for some years and whose business was here. 


The approach toward domicile under the Civil Code is vastly different from the earlier approach, at least as evidenced by the holding of the Supreme Imperial Court in the case of Pastori V. Aslandis (Civil Appeal, 338/47) decided before the Code. The person whose domicile was in question was a Greek national who came to Ethiopia in 1910.   He established a business here and was married here.  He made a number of visits to Greece during that time and went there when he was seriously ill; he returned to Ethiopia after he was cured.  The court concluded from his testamentary will that he intended it to be governed by Greek law, since it would be valid under Greek law, but not under Ethiopian law, and since he directed that it be executed by the Greek consul in Addis Ababa. 


The court held that he was not domiciled in Ethiopia.  It said that the test of whether a person acquired a domicile was whether ‘he intended to make the new country his permanent home in such a way as to detach himself completely from his country of origin and from its laws and customs and to subject himself permanently, as regards personal law, to the laws and customs of the new country.”  In following what is apparently the British approach, the court emphasized the following: 

1)      length of residence, even though continuous, is not sufficient to establish a change of domicile:

2)      change of domicile must clearly be proved, and the burden of proof required to show a change from the domicile of origin is greater than in the case of a domicile of choice.  The court concluded that there was not sufficient evidence to show that the person has acquired a domicile of choice in Ethiopia.  It emphasized that he continued his “Greek way of life” here and thus did not have the intention to acquire an Ethiopian domicile. 

The result would clearly be different under the (Civil) Code.  He has both his business and his normal residence in Ethiopia.  The presumption then is that he was domiciled in Ethiopia.  The intention to return to Greece was “floating” at best, and there was no fixed event upon the happening of which he would return to Greece.  In fact, he died here.  Therefore, there would be no evidence to rebut the presumption that he intended to live here permanently, and today such a person would be considered domiciled in Ethiopia. 


Ethiopia’s policy, as evidenced by Articles 183 and 184 of the Code and the interpretations the courts have put upon them, favour a finding of domicile when a person lives and works here.  This insures that foreigners residing here and having their business or employment here shall be deemed to be Ethiopian domiciliary (in the absence of) a clear and precise intention to the contrary. 


On the other hand, the Code does not require that a person must have spent any particular amount of time in Ethiopia in order to acquire a domicile here, as long as the necessary intent is present.  Presumably the Ethiopian courts would reach the same result in a case such as White v. Tennant [West Virginia Reports, 790, 8 Southeastern Reporter 596, (1888)] as did the American state court that decided the case.  The person whose domicile was in question sold his home in State A and moved to a new home in State B with his wife.  Previously he had shipped some movable property to State B.  He was in State B about a day when his wife became ill.   He took her back to State A, where she would stay with relatives intending to immediately return to State B; the wife would return to State B when her health improved.  The husband died suddenly while still in State A. It was held by the court in State A that he had acquired a domicile in State B.  He has his residence there, was physically present there, and had the intention of living there permanently.  There was a concurrence of residence and the intention to live there permanently.  Since there is no requirement under the Code that a person have his residence in Ethiopia for any period of time, the same result should be reached in Ethiopia.  


Moreover, there is no requirement under the Code that the person have a fixed place of abode in Ethiopia.  Under Article 177 of the Code, a person may have several residences.  The term “normal residence in a place,” as used in Article 184 should refer to residence in Ethiopia rather than residence in a particular part of Ethiopia.  So, if a person lived part of the time in Addis Ababa, part of the time in Gondar, and part of the time in Jimma, staying in hotels in each place, he should be deemed domiciled in Ethiopia, though he does not have a permanent residence in any part of (Ethiopia). (It is to be noted that under Ethiopia’s current federal system, the issue of domicile applies to domiciliary in each regional state or chartered city). 


The intention under Article 183 and 184 must be the intention of living in Ethiopia rather than the intention of acquiring a domicile.  These sections would prevent a person from acquiring a domicile in Ethiopia simply by renting a room here while actually living elsewhere.  Consider the situation presented in a case such as Kirby v. Town of Charleston [99 Atlantic Reporter 835 (New Hampshire Supreme Court 1916).  For legal purposes the party wanted to acquire a domicile in State A.  He rented a hotel room there, but never used it and continued to live in his house in State B.  It was held that his domicile remained in State B, as he never had the intention to live in State A.  The same result would be reached under Article 183 of the Code, since in such a situation there was no intention to live here permanently. 

Article 187 deals with the problem that arises when a person has left his former domicile with the intention not to return, but has not yet acquired a new domicile.  Let us say that a Greek national who has been domiciled in Ethiopia decides to return to Greece and live there permanently.  He leaves Ethiopia, but dies before he reaches Greece.  The question is where he was domiciled at the time of death.  He has abandoned his Ethiopian domicile, but has not yet acquired a Greek domicile; since he was not physically present there the intention and physical presence have not coincided.  In such a situation English courts have held that the person reacquires his domicile of origin, that is, his domicile at the time of his birth [Udny v. Udny (1869), Law Reports, 1 Sc. & Div. 441].  This may be a relic from colonial days when many Englishmen were domiciled in the colonies and were returning home in their old age.  When such a person died, if he were found domiciled in England, English law rather than colonial law would determine the distribution of his estate.  The American courts, on the other hand, have held that the person retains his former domicile until he acquires a new one [In re Jones, 192 Iowa Reports 78, 182 Northwestern Reports 227 (1921)].  Ethiopia follows the latter approach; under Article 187 of the Civil Code, a person retains his domicile in the locality where it was established until he establishes his domicile in another place. 


(Spouses shall have the same domicile) as long as the marriage lasts unless (one of them) is affected by judicial or legal interdiction (Art.189); it is not possible for (a spouse) to acquire a separate domicile, though s/he may acquire a separate residence (Art. 178). [The recent trend in the United States and in some other countries has been to permit the wife (or the husband) to acquire a separate domicile even during the continuance of the marriage].  An interdicted person retains his domicile at the time of his interdiction, though he also may acquire a residence of his own. 


In summary, the law is very clear with respect to the acquisition of Ethiopian domicile.  Persons having their normal residence here are presumed to be domiciled here unless this presumption is rebutted by clear evidence of contrary intent, and their leaving Ethiopia is to take place upon the happening of an event that is likely to occur. This means that persons living and working here for an indefinite time will be held by the Ethiopian courts to be domiciled here.  The fact that the law is clear has great significance in the determination of the question of the governing personal law, to which we now turn our attention. 




The Personal Law


The nature of the problem


In all legal systems certain questions are determined by the personal law.  By personal law we mean the law of a state with which an individual has some connection.  The court must decide which law determines matters of a person’s status - does he have the capacity to marry, what are the rights of his children and the like.  The law that determines such questions is called his personal law.  In many states personal law determines all questions of succession to movable property.  The questions that are determined by personal law are found in each state’s rules of private international law, or conflict of laws, as it is sometimes called.  It is that law which decides what state’s law is looked to for the personal law, e.g., the law of the state of which the person is a national or the law of the state where the person is domiciled. 


The problem is complicated in Ethiopia by the fact that at present the private international law has not been codified.  The provisions of the draft Civil Code dealing with private international law were not included in the final enactment. Until such time as this codification takes place, the question will have to be determined by case law.  Before considering the Ethiopian cases on the subject, let us look at the approaches other nations have taken to this question. 


Approaches toward the Governing Personal Law 


Three distinct approaches have been taken toward the question of governing personal law, which, for purposes of convenience, may be called the civil law approach, the common law approach and the Latin-American approach. 


Civil law countries have by and large adopted nationality as the governing personal law, though some are turning toward domicile.  For example, Article 3 of the French Civil Code provides that “the laws relating to the condition and privileges of persons govern Frenchmen, although residing in a foreign country;” and the French rules of private international law hold that the personal law of foreigners residing in France is the law of their nationality.  Article 17 of the Italian Civil Code provides that “the status and capacity of persons and family relationships are governed by the law of the State to which the persons belong.” To the same effect is Greek law, Hungarian law, Bulgarian law, and the law of many other European countries and countries that employ the civil law.     


In examining the reasons for using nationality, we find that such reasons may be historical, may follow from the theoretical nature of the system, or may be quite practical.  In commenting on Italian law, one writer observed that the retention of the nationality principle in Italy under the 1942 Civil Code was due to two reasons, one historical, the other political.  He points out that the nationality principle was most fully developed by an Italian, Mancini, during the time of Italy’s unification. Mancini’s thesis was that law is personal and not territorial, that it is made for a given people and not for a given territory.  In other words, a person carries his national law with him irrespective of where he resides.  Thus in personal matters, national law rather than the law of domicile governs.  The political reason, according to the author, lies in the “intensely nationalistic doctrines of more than twenty years under Mussolini.” He summarized these doctrines as follows: 

“It would be an abdication of sovereignty if a State renounced its right to govern its national who has emigrated; conversely, it would be a violation of the sovereignty of the émigré’s nation if the receiving nation should apply to the émigré laws not made for him; finally, legal ties of the émigré with his fatherland contribute to his fidelity to national institutions.” 


In other words, it was strongly in the interest of Italy to bind Italians living abroad by Italian laws; reciprocity demanded that the same treatment be accorded to foreigners far fewer in number who happened to reside in Italy. 


Another author, commentating on Greek law, points out that Greece has a large number of nationals who emigrate to various parts of the world … and that, therefore, “no reason could be strong enough to lead to the abandonment of the nationality system, the continuation of which was considered as a measure of self-preservation.” This desire to control the personal status of nationals residing abroad even takes precedence over consistent adherence to political ideology.  … .  . 


Finally, nations with a large number of nationals residing abroad may fear that the personal status of these persons will be governed by an alien legal system, with alien ideas, particularly as to marriage and the family.  One writer, in pointing out why Belgium, The Netherlands and Luxemburg have followed the nationality system, observes child relationships.  He says that western states should not accept bigamy or the like as legal for its citizens domiciled in those nations; consequently, it must hold that the personal law should be that of nationality rather than domicile.  


It is for reasons such as these that many nations have adopted nationality as the basis of personal law.


The same type of considerations has led England and the United Sates to adopt domicile as the basis of personal law. Anglo-American conflicts law followed the territoriality theory, first developed by Huber, but given its greatest impetus in later times by the writings of Joseph Story, an American jurist. The essence of the territoriality theory was that the laws of each nation had the force within the boundaries of that nation, but not without. Persons did not carry their national law with them; rather they were subject to the laws of the state where they lived. Consequently, the governing personal law was that of a person’s domicile- the place where he was with the intention to remain- rather than his nationality.


Moreover, there were comparatively few Englishmen residing outside of England except for the colonies. And England controlled the legal system in the colonies; thus, she could insure the application of English law to British nationals where she deemed this desirable. Likewise, by using domicile as the governing personal law, the American states exercised control over the large number of foreign immigrants; few Americans are domiciled abroad, even today. 


A number of Latin-American states follow a mixed system.  Local law is applied to foreigners domiciled there – to this extent they follow the common law approach.  However, national law is used to govern the personal relations of their national domiciled in other countries.  With variations, this approach is taken in Chile, Colombia, Ecuador, Costa Rica, El Salvador, Peru, Venezuela and Mexico.  This accomplishes the goal of civil law countries, namely, control of nationals domiciled abroad. 


The proposed French Draft on Private International Law, which has not yet been adopted, would modify the traditional approach by providing that foreigners domiciled in France for more than five years would have their status and capacity governed by French law.  Frenchmen domiciled elsewhere would continue to be subject to French personal law. 


Such approach is suitable, perhaps, for a country having a large number of its citizens domiciled abroad, and a large number of foreigners domiciled there.  Still, it can not help but cause ill-will among nations; if a nation believes that personal law should be that of nationality for its (nationals) domiciled abroad, then it should not deny to other (nations) the same control over their citizens that it purports to exercise over its own. 


The Governing Personal Law in Ethiopia 

As stated previously, there are no statutory provisions dealing with personal law in Ethiopia.  In the past, judicial decisions have gone both ways on the question, some holding nationality and others holding domicile to be the basis of personal law.  Of the cases dealing with the question that are known to the author two High Court decisions held that nationality was the governing personal law.  In Verginella v. Antoniani [Civil Case No. 905/50] the petitioner, an Italian … admittedly domiciled in Ethiopia, sought a decree of judicial separation form his wife.  The institution of judicial separation, according to the court, was not known in Ethiopian law. The court held that Italian law should apply and ordered the judicial separation.  Its reasons for applying Italian law were as follows:  

1)      the petitioner was an Italian subject;

2)      the respondent was also an Italian subject; 

3)      the marriage was celebrated in accordance with Italian law;

4)      there was no provision in Ethiopian law dealing with judicial separation; and

5)      it was the practice of the Ethiopian courts to apply principles of foreign law in matters between foreigners where Ethiopian law makes no provision for the matter. 

This reasoning ignores the fact that the petitioner was domiciled in Ethiopia; moreover, the result of this decision is that the petitioner receives a remedy in Ethiopia that is not available to Ethiopians …. 


Another case to the same effect is Katsoulis v. Katsoulis [Civil Case No. 250/51] where the parties were Greek nationals domiciled in Ethiopia.  The petitioner sought divorce on grounds of desertion.  The court held that the case should be decided according to the national law of the parties and ordered a divorce based on the Greek Civil Code.  In the case of Andriampanana v. Andriampanana [Civil Case No.441/52] and Zervos v. Zervos [Civil Case No. 154/52] the court did not (raise) the question, since there was no conflict between Ethiopian law (the parties were domiciled here) and the law of their nationality; the petitioner was entitled to a divorce under the law of either state.  It should be noted that all these cases were decided prior to the effective date of the Civil Code; as we will see, under the Code the courts will not usually take jurisdiction to decree a divorce. 


Two Supreme Imperial Court cases, on the other hand, have held that domicile should be the basis of personal law.  In Yohannes Prata v. W/T Tsegainesh Makonnen [Civil Appeal No. 638/49], the court was confronted with a situation of an Italian national who died domiciled in Ethiopia.  He was married to a woman in Italy and left children by her.  He lived with an Ethiopian woman and also left children by her, who would be considered illegitimate under Italian law.  Under Italian law illegitimate children cannot inherit from the father.  Under Ethiopian law the concept of illegitimacy is unknown.  All children inherit equally from the father, as long as paternity is established, and her paternity was admitted.  If Italian law -the law of nationality- were applied, the Italian children alone would inherit.  If Ethiopian law -the law of domicile- were applied, all children, Italian and Ethiopian, would share equally.  The supreme Imperial Court held that domicile was the basis of personal law and applied Ethiopian law.  The English version of the judgment states the following: 

“Now the personal law may be either the law of nationality of the deceased or the law of his domicile at the time of his death.  There is no enacted law in Ethiopia to lay down which of these two laws is to be followed and decided cases have not been consistent in following one law or the other.  The recent trend of jurisprudence, however, has been in favour of the law of domicile.  In our opinion the law of domicile is more adequate to govern the juridical situations and relationships (caused by the fact that a person) has established his domicile in a particular country without giving up his original nationality; we consider, therefore, that the law of domicile should be the law governing all matters of personal status.” 


This case was followed and applied in Alfredo Pastori v. Mrs. Aslanidis and George Aslanidis [Civil Appeal No. 338/47], which held that the question of proprietary rights between husband and wife was governed by the law of the matrimonial domicile rather than the law of nationality. [It is to be noted that in (the case cited) the court found that the parties were not domiciled in Ethiopia… Under the provisions of the Civil Code they would now be found domiciled here]. 


 …  A prime reason for continental nations employing nationality as the basis of personal law is that they have many more nationals residing abroad than they do foreigners domiciled there and want to control the status of their nationals.  In other words, the rule as to governing law is in no small part fashioned on the basis of the interest of the country applying the rule.  …  In summary, it is submitted that the courts of Ethiopia should hold that the personal law should be the law of the place where a person is domiciled rather than the law of the state of which he is a national. 


There is a collateral question, which relates to the circumstances under which the courts of Ethiopia will take jurisdiction to determine matters of family status such as divorce. The courts have held that they will not take jurisdiction unless one of the parties is domiciled here.  In Hallock v. Hallock [Civil Appeal No. 249/50], the party seeking a divorce was an American employed by Ethiopian Airlines.  He was here on a term contract and was domiciled in the State of Alabama in the United States.  He contended that under the law of Alabama residence in the state for at least one year was sufficient to confer jurisdiction on the courts to issue decrees of divorce.  The Supreme Imperial Court quite correctly held that what the Alabama courts would do was irrelevant in Ethiopia.  The court held that the absence of legislation by Parliament establishing residence as a basis of jurisdiction to divorce, the court would require that at least one of the parties be domiciled in Ethiopia.  Consequently, the petition was dismissed.  The same result was reached in Kokkinos v. Kokkinos [Civil Case 477/52], where the court found that the petitioner was not domiciled in Ethiopia.  In a number of other cases, the court, in taking jurisdiction, emphasized that at least one of the parties was domiciled here. It should be pointed out that now the husband must be domiciled in Ethiopia, since under the (Civil) Code the wife’s domicile follows that of the husband as long as the marriage subsists (Article 189).  Since the courts will take jurisdiction only on the basis of domicile and since it appears that domicile will be the basis of personal law, it follows that in divorce actions only Ethiopian law will apply. 



In this paper an attempt has been made to discuss the Ethiopian law relating to nationality, domicile and the governing personal law.  ... The Civil Code clearly defines domicile and demonstrates legislative intention that foreigners residing here and having their business or employment here shall be deemed Ethiopian domiciliary (in the absence of) a clear intention to leave Ethiopia at a definite time in the future.  The recent trend of decisions would indicate that domicile is to be the basis of personal law. …  At such time as private international law is codified, a provision to the effect that domicile is the basis of personal law should be included in the codifications.  

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