Domicile by Operation of Law

A domicile by operation of law is a domicile that the law vests in a person without taking into consideration a person’s residence or intention to change residence.  Here an individual cannot exercise his/her freedom of right.  A domicile by operation of law is the domicile that is imposed by law.

Mainly there are two classes of persons who acquire domicile by operation of law.  They are:

  • those persons who are under control of another; and
  • those on whom, domicile of another is given by law.

The following persons fall under the category of those who are under the control of another.  They are:

  • a wife;
  • a minor ,and
  • a lunatic.

The wife takes the domicile of her husband until she voluntarily changes domicile.  Similarly a widow takes and retains the domicile of her husband until she marries for the second time or unless she voluntarily changes it.  On a second marriage a widow will take the domicile of her second husband[i].  A minor and a lunatic will take the domicile of his/her father, when his/her father is alive.  On the death of the father the minor and a lunatic will take the domicile of the mother[ii].  The domicile of a minor and a lunatic can be changed at the direction of the parents.  For changing the domicile of the minor or lunatic the parents must give their express or implied consent.

On the other hand, officers and prisoners fall under the category of those who are given a domicile of another by law.  Here the law tags a domicile to the persons who falls under this category.  For example, public officers who are assigned with public duty will have to reside in other places for the discharge of their duty.  In such cases, public officers can retain their original domicile which they have in their respective state.  This privilege is extended to the President of the United States, the Secretaries, Ambassadors, officers, soldiers, and marines, serving for the United States.  A prisoner will not acquire a new domicile if the prison is in his/her home state.

[i] Baraket v. Baraket, 1937 Ohio Misc. LEXIS 849, 1-2 (Ohio C.P. 1937).

[ii] Rosario v. INS, 962 F.2d 220 (2d Cir. 1992).


Inside Domicile by Operation of Law