Domicile and Surrogacy: The 5 W’s

by | Apr 29, 2019 | Surrogacy

“Where is your home?” seems like a simple question. But in our multi-cultural society, that is not always so. For intended parents in a surrogacy arrangement, it is one of the most important questions to ask.
Source: https://surrogacyuk.org/2019/04/29/its-a-small-world-after-all-domicile-and-surrogacy-the-5-ws/

The why and the where?

The reason why domicile is so important is set out in statute. Section 54 of the Human Fertilisation and Embryology Act 2008 sets out the criteria of the conditions that must be met in order for the Court to grant a parental order transferring legal parenthood from the surrogate (and potentially her husband, wife or civil partner) to the intended parent(s). It is one of these key conditions that the IP (if a single applicant), or at least one of the IPs (if a couple) be domiciled in the United Kingdom, Channel Islands or the Isle of Man.

The what?

Domicile is a technical legal concept with wide reaching implications; not only in the context of surrogacy law but also affecting inheritance, divorce and tax laws, for example. It is also inherently difficult to define as a result of there being no statutory definition. The understanding of the concept has developed over time in various Court cases. It can be briefly summarised as follows:

  1. Domicile is, put in simplest terms, the location of a person’s permanent home and where they have their most enduring links or roots.
  1. Domicile and nationality may be the same, but are not necessarily so.
  1. A person’s domicile will remain the same unless their plans change, to the extent that they have made a permanent home in another jurisdiction.
  1. A person cannot have more than one domicile at a time. Domicile status in one country will remain until it is replaced with another. A person can have various domiciles at different points in their life, although it would always be one after another.
  1. Domicile cannot simply be declared or signed for on a document – it is a status that depends on a person’s personal circumstances, the way they live their life and their future intentions. It is very fact specific and no two cases will be the same.
  1. Domicile is not the same as living somewhere. You can move abroad but your domicile may remain where you have come from. It is distinct from residence, or habitual residence, both of which can be deemed to have changed more much easily, and more frequently, than domicile.

A person is born with a domicile of origin: the domicile of their father (if their parents are married) or their mother (if their parents are not).

One’s domicile of origin can be replaced in one of two ways.

  • As a child, by a ‘domicile of dependence’: i.e., when one’s parents’ domicile changes, so too will the domicile of that child;
  • As an adult, by ‘domicile of choice’.

Domicile of choice can be acquired by making a settled decision to make one’s home in a new country, indefinitely. This is essentially a two-stage process – the links with the original country of domicile much be much reduced, and new roots put down in the new country; it is not enough to show just some links in the new home, if there hasn’t also been a removal of some of the ties with domicile of origin. Given the enduring nature of domicile, as against the more temporary concept of residence, it is not usual for a person’s domicile to change much, if at all, over the course of their life, even if they spend some time living abroad or have ties in different places.

The who?

We are very often instructed by intended parents who were born overseas but live and work in this country. We are similarly frequently instructed by intended parents who hail from this country but currently live and/or work abroad.

I this modern world, simply living and working somewhere, even with no firm plans to return, does not make it one’s permanent home. There is very often no clearly defined point at which a country becomes a permanent home: it involves a complex, and thorough, investigation of one’s circumstances to be established.

If you are an intended parent and you have such international ties, it is always essential to take careful advice on domicile. If domicile cannot be established in this country, there can sadly be no parental order unless and until the law is changed.

The when?

It is immeasurably better to take advice, tackle and address any difficulties with domicile head on before embarking upon a surrogacy arrangement, or as early as possible within it.

That way, you do not risk an uneasy situation in which there are risks of uncertainty as to the legal parenthood of a child.

The what now?

There is often no reason for surrogacy arrangements or parental order applications to be complicated or difficult. In domestic arrangements where one of the intended parents only has connections to this country, domicile is very rarely an issue.

For those with real connections across jurisdictions, it would be sensible to start considering the following factors, to determine where one’s domicile may be. Whilst there is no set checklist of factors, these are the sorts of issues a Court may take into account:

  1. Where is your main home?
  2. Where do you work?
  3. Where are you entitled to vote, and do you do so actively?
  4. In what country or countries do you own property and on what basis?
  5. Where are your bank accounts located and for what reason?
  6. Where do you spend your time?
  7. How often do you visit each country, and why?
  8. Where do you pay personal taxes?
  9. If you have moved away from your country of birth, what are your long-term plans?
  10. Where are your pensions located and where do you plan to retire?
  11. Where do you intend to be buried?
  12. Where do you feel is “home”?
  13. Where are your emotional ties?

If an IP has personal circumstances which lead the court to believe s/he may be domiciled elsewhere, the witness statement prepared as part of the usual parental order application process will need to cover the issue of domicile in detail. This will include giving a detailed explanation of the practical and emotional links with each of the relevant countries, and providing specific information and documentary evidence on the kinds of issues listed above.

Joe Ailion is an Assistant Solicitor in the Family and Fertility Law team at JMW Solicitors. Joe undertakes all aspects of family law work, but has a particular passion for children work and assisting those building their families through surrogacy and donation. The team is led by Cara Nuttall, a recognised “Leader in the field” and has extensive experience in domestic and international surrogacy arrangements, regularly advising clients all over the country, and beyond. JMW is a full-service law firm, covering both personal and commercial legal services and has offices in London, Manchester and Liverpool.

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