Morgan & Anor v Cilento & Ors

A domicile of choice requires voluntary residence in a territory as an inhabitant and an intention to remain there indefinitely. The intention need not be irrevocable. Where a person has homes in more than one territory, the chief residence is relevant.

Abandonment requires cessation of residence and an unequivocal absence of intention to return. The burden lies on the party asserting the change, and abandonment is not lightly inferred.

The claimant, acting as attorney for Sir Peter Shaffer, sought a determination of the domicile at death of Anthony Shaffer. Anthony had a domicile of origin in England and Wales and had lived for many years between Queensland and England.

Some defendants contended that he died domiciled in Queensland. Another contended that he retained, or had reacquired, an English domicile. The issues were whether he had acquired a domicile of choice in Queensland and, if so, whether he had abandoned it before death.

1. The court held that Anthony acquired a domicile of choice in Queensland. He had voluntarily settled there and intended to remain indefinitely. Relevant evidence included his marriage and matrimonial home there, transfer of possessions, construction of Karnak and its Playhouse, Australian financial and tax connections, voting, and repeated statements treating Karnak as home.
2. He did not abandon that domicile. Although he maintained a London residence and had formed a relationship with Jo, he remained resident at Karnak and had not unequivocally lost the intention to return. His wish to preserve the Karnak Playhouse, his description of his London stay as business, and his statement that he lived in England for only half the year were significant.
3. The court applied the balance of probabilities, while recognising that abandonment is not lightly inferred. Anthony’s intention to return to Queensland might have been withering, but it had not died before his death.
4. Anthony died domiciled in Queensland.

First-instance determination in the High Court (Chancery Division). No prior or appellate decision is stated in the judgment.