The Gazette 1995

GAZETTE

DECEMBER

1995

as retaining her husband's English domicile unless or until she changed that domicile by the acquisition or revival of another domicile after the coming into force of Section 1(1). Nourse J. was of the view that she could only free herself from the shackles of dependency by choosing to leave her husband for permanent residence in another country". He rejected the notion that spending 1 0 - 1 2 weeks annually in Quebec amounted to permanent residence and that she did not abandon her domicile of choice in England and Wales imposed on her by the Act of 1973. The same tests apply to the facts in the Mrs. Y case but she did take up permanent residence in Ireland and acquired a domicile of choice here. With regard to the concept of domicile of dependency the Irish Domicile and Recognition of Foreign Divorces Act 1986 provides in Section 1 that: "The domicile of a married woman shall be an independent domicile and shall be determined by reference to the same factors as in the case of any other person capable of having an independent domicile and accordingly the rule of law whereby upon marriage a woman acquires the domicile of her husband and is during The Section states further that Section 1 above applies to the parties of every marriage irrespective of where and under what law the marriage has taken place and irrespective of the domicile of the parties at the time of the marriage. Furthermore the Supreme Court held forcefully that the concept of the domicile of a married woman being the same as that of her husband did not survive the enactment of the Constitution and was specifically contrary to Article 40 (1) per O'Hanlon J. in W.V.W. [1993] ILRM 294; [1993] 2 IR 476. Accordingly the two tests required to establish a domicile of choice namely Animus and Factum were satisfied by Mrs. Y on 15 September 1992. However, her husband Mr. Y retains his domicile of choice in England and Wales. the subsistence of the marriage incapable of having any other domicile is hereby abolished".

With regard to (1) it was pointed out that the Trustees were given the widest powers in relation to the residuary Estate in the Will of X. In relation to (2) the Revenue Commissioners opinion was that the 21 March 1991 (the date of issue of the Grant of Probate) was the earliest upon which the Trustees were entitled 1 to retain the lands for the benefit of the successor. However, the dictum of Lord Fleming in the Lord Advocate - v- Wotherspoons Trustees 1930 SLT 82 states clearly that "retainer is J something of an analogous character to actual delivery or payment" and as j the Estate of the deceased had not i been administered in March 1991 then I I it was not possible for the residue of ! the Estate to be in existence at that j date. Accordingly the valuation date j selected was not in the circumstances j of the administration inappropriate. i , In relation to (3) the spouse of Y, Mr. Y had a domicile of origin in New Í York, while Mrs. Y had a domicile of origin in a domicile area of England and Wales. After some time abroad j and subsequent to their marriage in 1968 they returned in 1970 to England j and set up home. Mr. Y accordingly ; acquired a domicile of choice in England and Wales. I Section (1) (2) of the Domicile and Matrimonial Proceedings Act 1973 provides that where immediately before the Section came into force (1 January 1974) a woman who was married and then had her husband's domicile by dependence was to be treated as retaining that domicile as a domicile of choice if it is not also her j domicile of origin, unless and until it is changed by acquisition or revival of I another domicile either on or after the j coming into force of the Section of the ! Act. As already mentioned Mrs. Y j took up permanent residence in I Ireland on 1 July 1992 with the I intention of establishing a permanent j i home here and accordingly acquired a domicile of choice in this country. i í ! The UK case of IRC -v- Duchess of ! Portland (1982) 1 All ER 784 \ \ considered the effect of Section 1(2) ! of the 1973 Act mentioned above. The i Section operated to deem the Duchess !

i Finally in Spring 1995 as a result of Mrs. Y having acquired at the valuation date:

A. A domicile of choice in Ireland and

B. having converted non-agricultural property to agricultural property,

Mrs. Y qualified for Section 19 relief as £ 150,000 (i.e. £300,000 - 50%) now dropped out of charge at 55%, thereby saving £82,500. *Eamonn O'Connor is a solicitor with S.S. & E. Reeves, Solicitors, Dublin, and is a member of the Law Society's Taxation Committee. •

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