In contrast to "residence," which is the place of physical abode, domicile is that place where a man has his true, fixed, and permanent home and principal establishment and to which whenever he is absent he has the intention of returning. For example, in matters governed by local custom, a man is bound to follow the practices of his place of domicile (lex loci domicilii) if they conflict with those of the locality in which he happens to be residing (Pes. 51a; Maim. Yad, Yom Tov, 8:20; see also *minhag). There is also a distinction between "resident" and "inhabitant," the latter term implying a more fixed and permanent abode than the former and imposing privileges and duties to which a mere resident would not be subject. Thus, one who uttered a vow not to derive any benefit from the "inhabitants" of a certain city (anshei hair, benei hair) is forbidden to do so from those who have resided there more than 12 months, but is permitted to derive benefit from anyone residing there less than that. If, however, his vow was not to derive any benefit from the "residents" of the city (yoshevei hair), he is forbidden to do so from anyone who has lived there for more than 30 days (bb 8a; Maim. Yad, Nedarim, 9:17).
Intention to Establish Domicile
Intention in the matter of establishing domicile may be avowed, implied, or construed. Occasionally, these types are in conflict with one another, and authorities have disagreed as to the relative strength of each type. A famous case is that of the observance of the second day of a festival. Inhabitants of the Land of Israel keep one day; those of the Diaspora keep two (see *Festivals). The settled law is that people traveling between the Land of Israel and the Diaspora follow the practice of the place to which they have arrived if their avowed intention is to establish domicile there (Sh. Ar., oḤ 496:3, and commentaries). But the following geonic responsum illustrates how implied intention or circumstantial factors can modify the settled law:
African Jews who have married in the Land of Israel and reside there: If 12 months have as yet not elapsed since they took up residence, they are obligated to keep two days following their place of origin; for this have the rabbis (bb 7b) taught, "How long must one reside in a city in order to be considered as one of its inhabitants? – 12 months." If, however, 12 months have elapsed, then thereafter – even if their avowed intention is to return – they follow the practice of the inhabitants of Jerusalem until they actually return to their homes.
The foregoing refers to people going to the Land of Israel from Africa. As for people, however, who go to the Land of Israel from Babylonia which has two talmudic academies:
If their avowed intention is to return – even though many years have elapsed – they keep the more stringent practices of both localities. If, however, they do not have the avowed intention of returning, they follow the practices of the Land of Israel whether this will make for more stringent or for more lenient observance (Oẓar ha-Ge'onim, ed. by B.M. Lewin, 3, pt. 2 (1930), 72, Pes. 51, no. 175).
Domicile as a Source of Obligations
The Talmud has a series of rules according to which the length of residence in a place determines the extent to which one becomes obligated to participate in local activities and to perform communal duties. Thirty days' residence carries with it the obligation to contribute to the communal soup kitchen maintained for the poor (tamḥui). It also renders one subject to the rules of the apostate city (*Ir ha-niddaḥat; Sanh. 112a). Three months' residence carries with it the additional obligation to contribute to the general charity fund of the community; six months' to the fund which provided clothing for the poor; nine months' to the fund which covered the funeral expenses of the poor. Twelve months' residence changes one's status to that of inhabitant and subjects one to all communal expenses, taxes, and imposts; in this respect, the purchase of a home has the equivalent effect of 12 months' residence (bb 7b–8a; Maim. Yad, Mattenot Aniyyim, 9:12, Shekhenim, 6:5).
Domicile of a Married Woman
According to the tannaitic sources, the domicile of a married woman is established by her husband. She could, with a few specified exceptions calculated to avoid undue hardship for her, be compelled to follow him on pain of divorce and loss of alimony rights (ketubbah). Thus, if they have been living in the country he may not compel her to move to the city, and if they have been living in the city he may not compel her to move to the country, "for in certain respects living in the country is preferable and in other respects living in the city is preferable." Another one of the exceptions to the general rule is taking up residence in the Holy Land. If a woman insists upon emigrating to the Land of Israel or, in Israel, to Jerusalem, and her husband is adamant in his refusal, a divorce must be granted, and she retains her rights to alimony (Ket. 110b; Maim. Yad, Ishut, 13:17–20).
Concerning the domicile established by a rabbinic legal fiction, for the purpose of doubling the distance one might be permitted to walk outside the city limits on the Sabbath, see *eruv (eruv tehumin).
With regard to restrictions on the freedom to establish domicile in the medieval communities of Europe, see *ḥerem ha-yishuv.
The Establishment of Domicile as a Factor in the Determination of Subordination to Communal Enactments in Matters of Civil Law
This issue arose in a question put to R. Isaac B. Sheshet (Spain-Algiers fourteenth century) in the context of an enactment passed in a particular town requiring that marriage ceremony be conducted exclusively in the presence of communal trustees and in the presence of ten of them; otherwise the money transacted for kiddushin would be expropriated and the marriage annulled. This enactment was intended to prevent clandestine/secret marriages (see *Marriage, *Hefker, *Takkanot ha-Kahal, *Aguna). Ribash was asked whether the enactment could also apply to those who had taken up residence in the city after its enactment. Ribash responded that "even those who came from outside the town to reside there are subject to the same law as the people of the city and must abide by their enactments, and it is if they explicitly agreed to accept all of the communal enactments upon their arrival in the town, provided that they have no intention to leave. And they are even permitted with respect to matters that were forbidden in their own town because of the local custom, for as long as they do not intend to return, and if not forbidden in the town in which they came to live…" (see *Conflict of Laws).
On the other hand, in matters relating to the collection of taxes, a number of rulings in the responsa literature indicate that the community has no authority to subject a member of the community to a tax that was first levied prior to his becoming a member of the community. For example, if the community borrowed a certain sum of money, or if a tax was imposed by the ruler of the town, even if not by way of an enactment (Resp. Rashba, 111, no.412) According to Ribash, a new resident can only be required to pay previous debts of the town when the enactment had already been made prior to his arrival in the town and the new resident already had notice of the enactment.
The State of Israel
establishment of domicile for determination of rabbinical court's jurisdiction
The question of establishing a person's permanent place of residence is of crucial importance in the State of Israel, with respect to the jurisdiction of the rabbinical court in matters of personal status. The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law 5713 – 1953 provides that "matters of marriage and divorce of Jews in Israel, being citizens or residents of the State, shall be under the exclusive jurisdiction of the rabbinical courts" (sec. 1). On a number of occasions, the Israeli Supreme Court was required to determine whether a Jewish couple was domiciled in Israel, this being the precondition for the jurisdiction of the rabbinical court. The general criterion adopted in Israeli common law is the criterion of "the center of a person's life." Where a Jewish couple was married in Israel and their life centered in Israel, the Israeli rabbinical court has jurisdiction over them, even if the couple went to live abroad (see in detail in entry *Bet Din).
The Place of Residence for Determining a Minor's Domicile for Purposes of the Hague Convention
The determination of domicile is also of decisive importance in cases of child abduction (see entry: *Abduction). The Hague Convention, which regulates matters of jurisdiction in cases of child abduction (for the contracting states), was enacted as binding legislation in the State of Israel (The Hague Convention Law Return of Abducted Children, 1991). The Hague Convention compels the Court in whose jurisdiction the abducted child was found to order the return of the child to the state from which he was removed, so that the case can be adjudicated by the court of that State. Under section 3 (a) of the Convention, a condition for the Convention's applicability is that the child was habitually resident in the State (from which he was removed) immediately before the removal or the retention of the child. The Israeli Supreme Court determined that as a rule the habitual residence of the child is the place in which he lives his daily life. However, the view was also expressed that, when the parents have traveled abroad for a temporary period, the duration of which having been determined in advance, their temporary place of residence abroad will not be regarded as their domicile, and by extension, will not be regarded as the child's domicile.
In fa 575/04 (Jerusalem District Court) the Court was required to determine a child's habitual place of residence in order to determine whether the case was one of abduction, and as such was governed by the provisions of the Hague Convention. The Court addressed a number of parameters indicating that the parents' permanent place of residence was Israel. Their stay abroad was temporary, its duration having been determined in advance, and the return to Israel was one of the preconditions for the trip abroad. The couple had not purchased an apartment abroad, and on the other hand, they owned an apartment in Israel. They visited Israel on a regularbasis, and the husband was attempting to find work in anticipation of their return. However, in the Court's view (Judge M. Drori), the central and clinching argument for viewing Israel as the parent's permanent place of residence was the fact that the husband, who was religiously observant, did not observe the Second Day of Festivals ordinarily observed by Jews living outside Israel.
The Court adduced extensive halakhic material from the posekim who dealt with the prohibition on residents of the Land of Israel who traveled abroad from performing work on the second day of the Festival, as distinct from actions performed in private, which are permitted to them (Maim., Yad, Hilkhot Yom Tov, 8.2; Sh. Ar. oḤ, 496.3, Magen Avraham, ad loc. 4). The Court also cited at length a responsum of R. David b. Zimra (Resp Ridbaz, 4: 73), who distinguishes between three categories of people traveling from the Land of Israel abroad: One who goes abroad exclusively for business purposes belongs to the category of "intending to return immediately" and is therefore required to conduct himself in accordance with the strict law of the place to which he came, but only in public; one who travels for business purposes in order to make a profit, or to engage in his livelihood or to learn Torah, belongs to the category of "intending to return at a later stage" and therefore is required to behave in accordance with the strict law of his place of origin and the strict law of his current location, so as not to trigger dispute; and one who changed his place of residence together with his wife and children, even though he intends (in the future) to return to settle in Israel, and who is not referred to as one who "intends to return," and is therefore required to conduct himself in all matters as one of the local residents. With respect to the final category, R. Yisrael Meir Radin (Mishna Berura, 496.13) explains that "one who leaves his place of residence with his wife and children for the purpose of trading and profiting, even though at the time of his departure he intended to return, is considered as one who does not have the intention of returning, for presumably, having moved his entire family to a new residence, he will not move again for as long as he is engaged in a profitable livelihood in his new place of residence."
Based on these comments and the fact that the husband concerned was both observant and knowledgeable, the Court presumed that in these kinds of matters he had conducted himself in accordance with, and in awareness of, the halakhah. When abroad, the husband had treated the Second Day of the Festival for exiles as though it was a regular weekday. The Court ruled that this indicated that he did not intend to settle in England, and had every intention of returning to Israel. In the Court's view this was conclusive evidence that the habitual residence of the husband – the appellant – was in Israel, and it was as though on each festival the husband had made a public declaration that his habitual residence was in Israel.
[Menachem Elon (2nd ed.)]
M. Elon, Ha-Mishpat ha-Ivri, vol. 1 (1988), 577, 593, 607, 614, 620f., 625, 627f; idem, Jewish Law, vol. 2 (1994), 711, 733, 751, 760, 767, 776.
dom·i·cile / ˈdäməˌsīl; ˈdō-; ˈdäməsəl/ (also dom·i·cil / ˈdäməsəl/ ) • n. formal or Law the country that a person treats as their permanent home, or lives in and has a substantial connection with: his wife has a domicile of origin in Germany. ∎ a person's residence or home: the builder I've hired to renovate my new domicile. ∎ the place at which a company or other body is registered, esp. for tax purposes. • v. (be domiciled) formal or Law treat a specified country as a permanent home: the tenant is domiciled in the U.S. ∎ reside; be based: he was domiciled in a frame house on the outskirts of town.