Lex Domicilii - Explanation

Explanation

When a case comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case. But if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws system to consider:

• whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);
• it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and
• then apply the choice of law rules to decide the lex causae, i.e. which law is to be applied to each class.

The lex domicilii is a common law choice of law rule applied to cases testing the status and capacity of the parties to the case. For example, suppose that a person domiciled in Malaysia decides to take a "round-the-world" trip. It would be inconvenient if this person's legal status and capacities changed every time they changed jurisdiction, e.g. that they might be considered an infant or an adult, married or free to marry, bankrupt or creditworthy, etc., depending on the nature of the laws of the place where they happened to be. Assuming that there are no public policy issues raised under the relevant lex fori, the domiciliary law should apply to define all major issues and so produce an in rem outcome no matter where the case might be litigated. The civil law states use a test of either lex patriae (the law of nationality) or the law of habitual residence to determine status and capacity.