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The English Concept of Domicile and How to Challenge It

This article examines the English concept of domicile, explaining why it is important and should not be confused with residency, nationality or immigration status. It also considers the evidence the English Court will examine when a person’s domicile is challenged.

The English concept of domicile is based on English common law, i.e. historic case law, and it is different to what might be understood by the term ‘domicile’ in other jurisdictions, in particular civil jurisdictions where the term domicile for the most part is interchangeable with residency. It is also not uncommon for people, especially internationally mobile HNW individuals and executives, to have a domicile which is different to their residency and/or nationality. The English meaning of domicile can be partly understood as meaning someone’s “permanent home”.

The Law

There are three types of domicile: a domicile of origin, a domicile of choice and a domicile of dependency.

1. Domicile of Origin

In English common law, every person is born with a domicile of origin, which is then their domicile until it is displaced notwithstanding that it is possessed involuntarily. ¹ The domicile of origin of a legitimate child born during the lifetime of his father is his father’s domicile at the time of birth.²

For the avoidance of doubt a domicile of origin cannot be chosen and can only be lost if a new domicile of choice (see paragraph 2 below) is acquired. A person’s domicile of origin remains their default domicile for their entire life but can in certain circumstances revive if a person’s domicile of choice is abandoned (see paragraph 3 below).

2. Acquisition of Domicile of Choice

Once 16 years old, a person may displace their domicile of origin by acquiring a domicile of choice. A person acquires a domicile of choice in another jurisdiction by residing there with an intention to do so permanently or for an unlimited time.³ Therefore, there are two distinct parts to acquiring a domicile of choice, namely:

1. the individual must physically reside in their country of choice (rather than be a mere traveller or occasional visitor)⁴; and
2. have an intention to reside in that jurisdiction permanently and indefinitely, which intention is not limited for a particular period or particular purpose.⁵

It is the second limb of this test which can mean a domicile of choice is hard to obtain despite many years or even decades of residency in a foreign jurisdiction. Direct evidence that the individual in question intended to reside permanently in his chosen jurisdiction of residence is required before s/he can definitively be said to have lost his or her domicile of origin and acquired a new domicile of choice. This notwithstanding:

1. If a person determines to spend the rest of his life in a jurisdiction, then he has the necessary intention, even if he does not consider that decision to be irrevocable.⁶ The absence of any intention to leave may suffice.⁷
2. It will not be sufficient if there is an intention to return to the jurisdiction of previous domicile at some point, so that although present residence is indefinite, it is not unlimited in time, unless that intention is so vague as not to be properly formed.⁸

3. Loss of Domicile of Choice

If a domicile of choice is never acquired, or is acquired but then abandoned, the domicile of origin will prevail (i.e. revive).⁹

A domicile of choice is abandoned by giving up both the residence and the intention necessary for its acquisition in the first place.¹⁰

4. Domicile of Dependency

This concept is less relevant today but is still worth bearing in mind:

1. Legitimate children up to the age of 16 are dependent on their father’s domicile, as set out above. Where a child is born out of wedlock or their father is deceased, they may take on their mother’s domicile.
2. Women who were married before the Matrimonial Causes Act 1973 came into effect in 1973 took on their husband’s domicile.

Why is Domicile Important?

The English concept of domicile matters because it determines which legal system has the strongest claim over a person’s life for core issues such as taxation, succession, and jurisdiction. It is far more enduring than residence and often decisive in private wealth disputes.

Tax

Domicile is central to determining an individual’s exposure to UK taxation, particularly inheritance tax. It dictates whether a person is taxed on their worldwide estate or only on UK-situated assets, and it governs access to favourable regimes historically available to non-UK domiciled individuals. Because domicile is difficult to change and heavily intention-based, it often becomes a decisive issue in tax planning and disputes involving internationally mobile clients.

Succession

In cross-border estates, domicile determines which country’s succession laws apply on death. This can affect the validity of wills, the distribution of assets, and the interaction with forced-heirship regimes overseas. In contentious private wealth matters, establishing a deceased’s true domicile frequently shapes the entire litigation strategy, as it may determine both the applicable law and the rights of competing beneficiaries. For example, to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the deceased must have died domiciled in England and Wales.

Family Law

Domicile also plays a significant role in family law, influencing jurisdiction for divorce, financial relief, and the recognition of foreign marriages or divorces. Because domicile is treated as a person’s “personal law,” it can affect questions of capacity and personal status. Its enduring nature means that domicile often anchors jurisdiction even when individuals have lived in multiple countries.

How to Challenge Domicile

Where domicile is in dispute, it must be determined by the English Court, which will normally order a hearing so that it can review all the facts and come to a decision. The burden of proof for proving that an individual has acquired domicile of choice is that of the person or entity alleging it.¹¹

Domicile disputes are very fact sensitive and judges have a wide amount of discretion to decide them. Therefore, trials regarding domicile can be unpredictable and each case will turn on its own specific facts.

However, the court will tend to examine the following categories of evidence before making an overall assessment on the balance of probabilities:

Family Background: the court will want to review a person’s family background in detail including the birthplace of parents and grandparents. It will also examine marriages, divorces and conduct a careful review of where the person in question lived as a child and with whom. The court will also examine a person’s current family including the birthplace and nationality of any spouse and children. Family ties are also important and the court will look to understand where close family members reside and where a person’s children are educated, as this can indicate where a person’s ‘domicile’ or ‘permanent home’ might be.

Physical Presence: the court will want a full history of where the person in question has lived and why, i.e. for school, work etc. Dates of residence in a particular country and intention regarding residence there will be examined. The court will also examine residency, where a person pays taxes and what citizenship they hold. It will also require information on visits to a person’s country of birth and will want to examine a person’s relationship with their country of origin.

Property and Assets: the court will want to know where a person owns property and hold assets. This includes the location of any family home, pensions, bank accounts, investments etc. The analysis can be quite granular and the court may go as far as to examine which bank accounts etc. are or have been used most frequently to understand where a person has been resident or visits most frequently.

Social Ties: the court will even go as far as examining a person’s social ties, including if they belong to any clubs, what football team they support and where their registered doctor and dentist are located. They will also look to understand where a person has voted and what causes or interests he or she support.

Therefore, for highly mobile individuals, a domicile challenge is likely to involve a significant examination of their personal life. Small and seemingly insignificant details can make all the difference and should not be underestimated.

The Private Wealth Disputes team at Quastels LLP are adept at advising clients on all aspects of domicile, including when to issue or defend a domicile challenge.

1. Udny v Udny (1869) LR 1 Sc & Div 441, 457-8. ↩︎
2. Forbes v Forbes (1854) Kay 341. ↩︎
3. Gulbenkian v Gulbenkian [1937] 4 All ER 618, 626–7. ↩︎
4. Inland Revenue Commissioners v Portland [1982] Ch 314. 318–9. ↩︎
5. Udny v Udny, supra. ↩︎
6. Inland Revenue Commissioners v Bullock [1976] 1 WLR 1178, 1183, 1184. ↩︎
7. Bell v Bell [1922] 2 IR 152. ↩︎
8. Qureshi v Qureshi [1972] Fam 173, 191_2; Henderson v Henderson [1967] P 77, 80–1. ↩︎
9. Re Fuld deceased (No.3) [1968] P 675, 682, 684–5. ↩︎
10. Udny v Udny, supra, 450. ↩︎
11. Moorhouse v Lord [1863] 10 HL Cas 272 ↩︎

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Year-End Insolvency Review 2025 – What Mattered Last Year?

2025 was the year the courts set firmer ground rules. In addition to new laws, we have seen judges placing more emphasis on Schemes and Restructuring Plans, pre-packs and phoenix-type deals, and also the enforceability of foreign judgments in UK insolvency processes.

Below is a short, practical summary of what changed and why it matters.

Schemes and Restructuring Plans

A new Practice Statement for Schemes of Arrangement (Part 26) and Restructuring Plans (Part 26A) applies to hearings from 1 January 2026. The effect is substantial as much more needs to be done upfront as the courts expect a more disciplined, court-controlled process:

1. You must issue a claim form before getting a hearing date;
2. A detailed listing note is required at the outset, covering likely contested issues, time estimates, class questions and anything affecting timetable;
3. Evidence – including valuation and “relevant alternative” materials – must be substantially ready before the convening hearing;
4. Arguments, issues and grounds need to be properly developed well in advance – scrutiny is now firmly front-loaded; and
5. Creditors who want to object must do so before the hearing, to limit ambush tactics.

The result is that schemes and restructuring plans now look and feel far more like managed litigation than flexible restructuring tools. Preparation standards are much higher, timetables tighter and poorly prepared proposals are unlikely to gain momentum.

Phoenixism, Pre-Packs and Enforcement Pressure

One of our busiest areas in 2025 has been the renewed attention on pre-pack deals and directors’ conduct, as the Challenge Recruitment Group collapse has become the case everyone cites when discussing why. In brief terms:

1. There has been renewed attention on corporate structures that recycle assets through pre-packs while leaving material unsecured creditor claims – especially HMRC – behind.
2. HMRC has intensified its attention on how and why phoenixism is costing the UK billions – around 22% of the £3.8bn tax losses in 2022-23.
3. This has drawn political and regulatory scrutiny and sharpened focus on the advice given to boards and office-holders.
4. HMRC, the Insolvency Service and Companies House have been explicitly directed to work more closely to clamp down on “contrived corporate insolvencies.”

As a result, director-conduct and disqualification enforcement has become more assertive. The emphasis is on substance over form. For boards, the point at which the creditor interests must take precedence is now difficult to ignore. For advisers, restructuring strategy needs to be developed with enforcement risk in mind.

Foreign Judgments: No Fast Track to Insolvency

Another important, if quieter, development in 2025 came from Servis-Terminal LLC v Drelle. The Court of Appeal confirmed that an unrecognised foreign judgment cannot support a statutory demand or bankruptcy petition in England and Wales, and the reasoning is likely to apply equally to winding-up petitions. In doing so, it reaffirmed the core principle that a foreign judgment has no legal effect until it is recognised, whether under a statutory regime or through common-law action.

A further practical consequence of this decision is the continued emphasis to seek recognition of foreign insolvency proceedings. Insolvency practitioners appointed overseas will generally need to take an additional step to obtain recognition in England and Wales before they can exercise powers, seek relief or engage UK insolvency processes.

For all stakeholders, the message is clear that recognition process is not an optional preliminary and that foreign insolvency/proceedings do not take effect automatically in this jurisdiction.

Looking Ahead at the Emerging Pressure Points

Looking ahead, and given our combined expertise, we also set out a few areas where pressure is building (even if not driven by formal insolvency legislation):

1. Property-related exposure.
   • Obligations under the Leasehold and Freehold Reform Act 2024 and the Building Safety Act 2022 continue to bite. Contribution orders, defect-remediation duties and landlord/tenant liabilities increasingly can reduce recoveries and can influence director-conduct analysis well before formal insolvency.
2. Digital Assets, Cyber Risk and Offshore Assets
   • These developments sit alongside a growing practical focus on digital assets, including cryptoassets, whose status as “property” is becoming increasingly clearer. For insolvency practitioners, however, legal classification is only the starting point. Volatility, asset pooling, evidential complexity and the practical irreversibility of certain blockchain transactions present real challenges in tracing, securing and realising value. As with cross-border enforcement, success in this area increasingly depends on early strategy, specialist input and close coordination between legal, technical and international advisers.

The above is a snapshot of some of the issues now arising and while deeper, specific advice can be provided, the direction of travel is clear in that insolvency practice now requires not only legal judgment but also technical capability and cross-disciplinary collaboration.

To discuss any of the points raised in this review, or for more assistance with your matters, please contact Robert Kay (Partner) and Ann Goh (Associate) or fill in the form below.

This article does not constitute legal advice.

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The EU’s New Online Contract Rules – What Online Retailers Need to Know

Directive (EU) 2023/2673 (the Directive) which was adopted as part of the EU’s wider consumer protection reforms, introduces a significant practical change to how online retailers must enable consumers to exercise their right of withdrawal from online contracts. Although the directive is primarily framed around distance financial services, it amends the Consumer Rights Directive (Directive 2011/83/EU) in a way that affects all online consumer contracts within scope of that regime.

The Existing Right of Withdrawal

Under the Consumer Rights Directive, consumers entering into online contracts or other distance or off-premises contracts generally benefit from a 14-day right to withdraw from the contract without giving a reason. While online retailers have long been required to inform consumers of this right and provide a model withdrawal form, the legislation has historically focused more on disclosure than on the user experience of withdrawal.

The New Obligation

The Directive shifts the emphasis onto the user experience by requiring that from 19 June 2026 online sellers provide a mandatory withdrawal function for consumers on their e-commerce sites. The underlying principle is that consumers must be able to withdraw from a contract as easily as they were able to enter into it.

In practical terms, this means that the online interface used to conclude the contract must also allow the consumer to submit a withdrawal notice electronically.

Who Is Affected?

These requirements will apply to:

• traders established in the EU that sell goods, services or digital content online to consumers; and
• traders established outside the EU where their online activities are directed at EU consumers.

As a result, many non-EU based retailers who target EU consumers will also need to assess whether their current online contracting journeys meet the new standard.

Key Features of the Withdrawal Function

The Directive sets out clear expectations for how the withdrawal function must operate. In particular, it must:

• be clearly labelled with wording such as “withdraw from contract here” (or equivalent unambiguous language);
• be easy to find, legible and continuously available during the withdrawal period;
• allow the consumer to identify the contract they wish to withdraw from (including partial withdrawal, where relevant);
• enable the consumer to submit a clear withdrawal statement online; and
• generate an acknowledgement of receipt on a durable medium (such as email), including the date and time of submission.

When a consumer has already identified themselves (for example, by logging into an account), the retailer should not require unnecessary re-identification as part of the withdrawal process.

What Businesses Should Be Doing Now

Although the new rules do not apply until June 2026, they are likely to require technical and design changes to online sales platforms, not just legal updates. Businesses should therefore start considering:

• whether existing account pages, order histories or customer dashboards could support a complaint withdrawal function;
• how withdrawal confirmations will be generated and stored;
• look at training customer support/CRM teams on the changes so they can ensure that consumer queries are dealt with compliantly;
• consider what changes will be required to CRM processes to manage the practical aspects of the changes; and
• whether pre-contact information and T&Cs accurately reflect the new withdrawal mechanics.

Failure to implement the withdrawal function correctly may expose businesses to enforcement risk and undermine their ability to rely on protections such as deductions for use or charges during the withdrawal period.

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