To prove change of a domicile an individual must prove two things:
- change of residence ; and
The intention can again be classified into two types[i]:
- intention to abandon the old domicile ;and
- intention to acquire a new domicile.
One of the essential elements to prove domicile is the change of residence of an individual. Since residence is a visible fact it is not difficult to prove a residence[ii]. A person will not get relieved from the burden of proving his/her domicile by simply proving the fact of residence. Apart from residence a person must also prove their intention[iii].
If both these elements are proved, the place where such person resides will be presumed by law to be his/her domicile. A continued residence in a desired place will only add to such presumption. Therefore a change of domicile is a question of fact and intent[iv].
Sometimes a person may have more than one residence. Having more residence does not mean that such person will have more than one domicile[v]. When a question arises on determining between two residences for domicile, the court will look into the intention of the individual[vi]. Apart from the intention the courts will also consider the physical character of the residence, the time spent in each residence, and the things done in each residence[vii].
However, a domicile of origin and a domicile of choice are concluded to continue until a new domicile is acquired. Courts while determining the question of intention prefers to presume that a person in a foreign country will have an implied intention to retain his/her national domicile[viii]. But this presumption can be rebutted by sufficient proof of changed domicile.
Generally, the burden of proving the change of domicile is on the person who asserts the change. If evidence on existence of another residence is produced before the court, burden of proof falls upon the person who claims the change of domicile to prove his/her present residence. A person claiming change in domicile must establish his/her domicile by a preponderance of evidence[ix]. S/he need not prove the change in domicile beyond reasonable doubt. A claimant can give his/her statement, election registers, tax returns, and willin proof of the domicile.
[i] Pickering v. Winch, 48 Ore. 500 (Or. 1906).
[ii] Ex parte Blumer, 27 Tex. 734 (Tex. 1865).
[iii] National Artists Management Co. v. Weaving, 769 F. Supp. 1224 (S.D.N.Y. 1991).
[iv] Denny v. Sumner County, 134 Tenn. 468 (Tenn. 1916).
[v] Northwestern Mortg. & Sec. Co. v. Noel Constr. Co., 71 N.D. 256 (N.D. 1941).
[vi] Smiley v. St. Hilaire, 183 Minn. 533 (Minn. 1931).
[vii] Every v. Supervisors of Madison Checklist, 124 N.H. 824 (N.H. 1984).
[viii] Willis v. Westin Hotel Co., 651 F. Supp. 598 (S.D.N.Y. 1986).
[ix] White v. All America Cable & Radio, Inc., 642 F. Supp. 69 (D.P.R. 1986).