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Domicile - My Two Dads

Domicile of child of same sex couple

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I've got the feeling that this question is unanswerable, but would be grateful/interested to hear if anyone else has dealt with a similar situation.

Wealthy couple of men, one UK Dom, one non-Dom. Unmarried, not in a civil partnership etc. Have a child via a surrogate mother in the US.

UK Dom is the biological father. Non-Dom is listed first on birth certificate, i.e. in the position traditionally taken by the "father".

Is it possible to know what the domicile of origin of the child is? (Scottish law does not apply.)



Replies (12)

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By Wanderer
07th Feb 2018 16:49

"If your parents were not married when you were born, you will take your domicile from your mother. If you are adopted, you take your domicile from your adopted father – if there is no adopted father, you take the domicile from your adopted mother."

Doesn't seem right in this case though.

Thanks (2)
By Duggimon
07th Feb 2018 16:50

Tempted to say just pick whatever one you want and if anyone contests it challenge them to prove it.

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By Portia Nina Levin
07th Feb 2018 17:23

Has the domicile of origin not been displaced by a domicile of dependency in any event?

Incidentally, I think domicile of origin is obtained from the US mother.

Thanks (2)
Replying to Portia Nina Levin:
By Akrigg
08th Feb 2018 10:57

Thanks - I think that the mother falls out of the equation because of the parental order obtained by the two Dads. But you may well be right that there'd be an immediate US domicile of origin followed by a domicile of dependency based on one of the Dads once the parental order is out in place.

Thanks for the pointer - I should do more research into what the "extinguishing" of a surrogate's legal parentage following a parental order actually means.

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Replying to Akrigg:
By sailorryan
03rd Nov 2018 16:23

What state was the surrogacy in? Was there a pre or post birth order? I think this will be the key to answering your question.

Just a heads up as well - within the US system, there is a difference between resident/domicile in immigration law vs tax law and within tax law differences between federal and state. =)

Out of curiosity, what info did you find about "extinguishing" the rights? Our team has been in the process of researching all the in/outs of this and can discuss if you like.

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By bernard michael
08th Feb 2018 09:46

Does that mean he is an American citizen ??

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Replying to bernard michael:
By Akrigg
08th Feb 2018 10:46

Yes - from tax point of view the child being born in America isn't great as there's now US reporting to do. But I'm guessing that there must have been advantages from the surrogacy point of view.
I'm pretty sure, well sure-ish, that the child doesn't have a US domicile as the parental order by the two Dads removes the birth mother from the domicile equation.

Thanks (1)
By Montrose
08th Feb 2018 19:10

Can the problem be solved by either father adopting the child, so displacing the domicile of origin which seems to be in whichever state of the US the surrogate mother was domiciled at the date of the birth.

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By Matrix
08th Feb 2018 19:52

But if the child was born in the US won't they have to do US tax returns whether you change the domicile or not.

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Replying to Matrix:
By atleastisoundknowledgable...
09th Feb 2018 00:27

I think the child would need to surrender their citizenship. That’s what Boris Johnson did to stop paying US tax on his worldwide gains (after he was hit with a $50k tax bill on the sale of the family mansion in London).

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By rbw
12th Feb 2018 12:32

You might wish to enquire of Surrogacy UK - if only as they do not cover this point explicitly on their site, among many other points of law, and may wish to do so.

Thanks (1)
By Megan23
12th Feb 2018 13:21

I have clients in an identical position and I am struggling with lack of guidance on this issue. For now the clients are happy to wait and see what evolves over the next few years. They do not want to pay for specialist advice that will tell them that the position is unclear.

There are further complications as the non-dom is intending to be the biological father of the next surrogate child.

Ref the US point, the child does have US reporting obligations until they are no longer a US citizen. They can renounce citizenship from (I think) 16 if they can convince a consular official they are doing so of their own free will, otherwise it is age 18.

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