Udny v Udny

Every person has a domicile of origin at birth, which revives whenever a domicile of choice is abandoned without another being acquired.

Citation
(1869) LR 1 Sc & Div 441
Court
House of Lords
Year
1869
Subject
Conflict of Laws
Topic
Domicile, property, foreign states and public policy

Facts

Colonel Udny was born in Leghorn, Italy, to a Scottish father, so he had a domicile of origin in Scotland. He lived for many years in London, but later moved to France to escape his creditors, without intending to return to England. While in France, he had a child with a woman he later married. The question was whether the child was legitimated by the subsequent marriage, which depended on whether Colonel Udny was domiciled in Scotland, where legitimation by subsequent marriage was recognised, or in England, where it was not at that time.

Legal principle

The House of Lords held that Colonel Udny was domiciled in Scotland, so the child was legitimated. Lord Westbury said that the law attributes to every individual as soon as he is born the domicile of his father, which is called the domicile of origin, and that a domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. Colonel Udny had acquired a domicile of choice in England, but he had abandoned it when he left for France, and his domicile of origin in Scotland had revived, because a person cannot be without a domicile.

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