Domiciliary Theory
Domiciliary Theory
Domiciliary Theory
1
It is the theory whereby the status, condition, rights, obligations, and capacity of a person
are governed by the law of his domicile or lex domicilii.
Domicile
True, fixed, permanent home and principal establishment, and to which, whenever one is
absent, one has the intention of returning.
It is the place where a person has a settled connection for certain legal purposes, either because
his home is there or that is the place assigned to him by law.
DISTINCTIONS
DOMICILE RESIDENCE
Concurrence of intention to make it ones Simply requires bodily presence of an
domicile and physical presence inhabitant in a given place
Relatively more permanent abode of a person Temporary stay of a person in a given place
The prevailing rule is that the forum applies its own concept of domicile in determining
the domicile of a litigant before its courts.
A. Merits
The relationship between an individual and the place where he establishes his permanent home
provides an adequate basis for him to exercise rights therein and the state to impose duties on
him.
B. Demerits
1. Ones domicile is not ascertainable without first resorting to the courts to establish whether or
not there is animo manendi (intention to remain)
2. The notion of domicile differs widely with some states distinguishing between residence and
domicile.
3. When the law imposed at birth, independent of ones free choice be given weight when the
person has no significant ties with and possibly feels only repugnance for that state.
Exceptions:
- Where the litigant is an alien who comes from a country following the domiciliary
principle
- Stateless persons
- When an alien domiciled in the Philippines executes a will abroad
4. The burden of proving a change of domicile is on whoever alleges that a change has been
secured.
Kinds of Domicile
1. Domicile of Origin
- Persons domicile at birth
- Enjoys the presumption in favor of its continuance
the parents are separated, the domicile is that of the custodial parent.
(2) If the child is illegitimate, his domicile of origin is that of the mother at the time of his birth.
(3) If the child is legitimated, the domicile of his father at the time of his birth controls, since
the effects of legitimation retroacts to the time of the child's birth (Art. 180, Family Code)
(4) The domicile of origin of an adopted child is the domicile of his real parents at the time of
3. Constructive Domicile
- By operation of law, a domicile is assigned to persons legally incapable of choosing
their own domicile
Example: Minors, mentally disabled, married women
father, unless there is a judicial order to the contrary. (Art. 211, Family Code).
(b) If illegitimate, the domicile of the mother (Art. 176, Family Code).
(c) In case of absence or death of either parent, the domicile of the present parent.
Even in case of the remarriage of the surviving parent, still his/her domicile
constructive domicile.
(2) Insanes, idiots, imbeciles
Since insanes and other mentally incapacitated persons cannot select their own
allows the wife to have a separate domicile, for valid and compelling reasons.
If there is legal separation between the spouses, the wife can have her own domicile of
choice.
(b) If the marriage is voidable:
Apply the same rules as when the marriage is valid. However, after annulment, the wife
(c) Pubic officials or employees abroad like diplomats, consular officials, etc.
Since their stay abroad is in their official and not in their personal capacity', their
domicile is the one they had before they were assigned elsewhere, unless they
2. Married women
Take the domicile of her husband, based on the concept of unity and identity of spouses
and reinforced by a gender based presumption that his identity was determined by the husband.