Domicile is a legal concept that has many civil consequences.
For example, in the absence of a choice of law, the domicile is used to determine the law applicable to a succession, a matrimonial regime, the rights and duties of spouses or the law applicable to a contract. Domicile is also the main criterion to determine the applicable jurisdiction for Monegasque courts.
From a civil law point of view (tax law may have a different approach to the concept of domicile), a person's domicile is the place where they have their main establishment.
This principle is not exhaustive since there are several exceptions. This is the case for the domicile of an adult under guardianship. Under the terms of Article 78(3) of the Civil Code, the domicile of an adult under guardianship is the one of their guardian.
In the light of these provisions, a person domiciled in Monaco will be presumed to have moved their civil domicile when the guardianship measure is pronounced if their guardian is domiciled outside of Monaco.
Fortunately, case law has clarified this presumption of domicile. There was a risk that the presumption would be described as irrebuttable, i.e. that it could not be proven otherwise. It is now clear that the presumption of domicile of an adult under guardianship is a simple presumption. This qualification allows the person who challenges the presumption of domicile of an adult under guardianship to challenge it by providing evidence of the contrary.
This proof can be provided by showing that the adult, when they were able to do so, had established their domicile in Monaco before the guardianship measure was opened, and that their actual residence in Monaco was maintained after the measure was opened.
It should also be noted that case law equates the guardian with the judicial administrator appointed in the context of an unorganised guardianship measure (also known as a judicial administration measure). The presumption of domicile of the adult under guardianship therefore applies to the adult under a judicial administration measure.
To sum up, although the presumption that an adult under guardianship is domiciled at their guardian's domicile is not exhaustive, it is still necessary to provide evidence to the contrary in order to challenge it. In other words, the domicile of an adult under guardianship will be the one of their guardian or legal administrator until it is proven otherwise.
It is therefore recommended that the relatives of a vulnerable adult who has not yet been placed under judicial protection should seek advice from a lawyer in order to assess the consequences of such measure, in particular with regards to the law applicable to the future succession of the protected adult.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
