Thursday, June 13, 2013

Abrams on the History of the Derivative Domicile Rule

Kerry Abrams, University of Virginia School of Law, has posted Citizen Spouse, which appears in California Law Review 101 (2013): 407.  Here is the abstract:
Marriage and citizenship have a complicated relationship to one another. Marriage is often the primary way in which a person can exercise and demonstrate his or her identity under law, by claiming legal benefits and by performing legal obligations. This Essay examines the history of one particularly salient example of marriage-as-citizenship — the derivative domicile rule — and uses this history to consider how the relationship between marriage and citizenship has changed and developed over time. The derivative domicile rule linked a woman’s domicile, and her state citizenship along with all the rights and obligations it carried, with her husband’s domicile by operation of law. This happened regardless of where she actually lived or what state she subjectively owed allegiance to. Derivative domicile remains pertinent today because many states still use it to determine state citizenship for married people, either as a presumption rebuttable by a married woman or as a rule that applies to both spouses and links their domicile by presuming they will each regard one single place as their home. The history and current application of the derivative domicile rule demonstrate that these presumptions fail to accurately reflect the preferences of many married people whose domiciles do not match their spouses’. This Essay argues that derivative domicile illustrates the dangers of uncritically eliding marriage and citizenship.

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