Domicile, nationality and residence : the struggle for survival of the fittest connecting factor

Abstract

Being both accepted as prominent connecting factors in Private International Law, the concept of Domicile, and equally, that of Nationality have acquired solid ground in serving as a means for linking an individual with his or her personal law. While being both linked with the search for one's personal law however, the two concepts differ starkly from one another and certainly each carries its qualities and defects in tum. Through time the International plane has also welcomed the arrival of a third and newer connecting factor, sometimes referred to as the fresher of the three - Residence. Seen as some as merely a third connecting factor which can only complicate matters, the notion of residence has also attracted substantial positive attention as the medium through which the discontent with domicile and nationality as connecting factors can be resolved. Both domicile and Nationality are applied invariably by common law jurisdictions on the one hand and continental jurisdictions on the other. Residence is applied evenly in specific areas of law, by those same jurisdictions that adopt domicile and nationality to determine an individual's personal law. This study will delve into the struggle between domicile, nationality and residence and will eventually attempt to determine which of the three is the fittest connecting factor in a Private International Law arena. Inevitably, significant attention will be attributed to the three connecting factors individually, the study of which will render the struggle clearer and possibly more obvious and potentially evidence which of the three is the fittest.