|Conflict of laws and |
private international law
|Substantive legal areas|
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing.
Habitual residence is less demanding than domicile and the focus is more on past experience rather than future intention. There is normally only one habitual residence where the individual usually resides and routinely returns to after visiting other places. It is the geographical place considered "home" for a reasonably significant period of time.
The concept of habitual residence is used in a number of international conventions, beginning with the Hague Convention on Civil Procedure of 14 November 1896 and a number of international conventions dealing with conflict to complement or supplant the traditional connecting factor of domicile, e.g. in the Rome Convention 1980, but it was replaced, with respect to legal entities by the new connecting factor of principal office. It is the basis of the Convention Relating to the Status of Refugees, the Convention on International Child Abduction, etc.
Habitual residence is something less than domicile but more than simple residence. It may also be more discriminating that the test of nationality or lex patriae in that the connection is to a specific location within a state rather than to the country of nationality which may contain several subnational jurisdictions (such as states or provinces). Hence, where a country contains more than one legal system, the residence must determine which of the several possible laws might apply (e.g. in the United States which of the laws of the U.S. states is to be applied). A supranational example of this selection process is contained in Article 19 of the Rome Convention:
- States with more than one legal system
- Where a State comprises several territorial units each of which has its own rules of law in respect of contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Convention.
- A State within which different territorial units have their own rules of law in respect of contractual obligations shall not be bound to apply this Convention to conflicts solely between the laws of such units.
Comparison with domicile
To establish a domicile of choice, it is necessary to have a clear factual base in one state and that must be accompanied by an animus semper manendi (Latin: intention to reside indefinitely). Although it is not so difficult to produce evidence that an individual has established a home in a state, it is very difficult to prove that someone has no intention of ever establishing a home in another state. The test for habitual residence is less demanding. The court focuses on the past experience of the individual and not so much on future intention.
A person can have only one habitual residence. It is the place where the individual ordinarily resides and routinely returns to after visiting other places. It is the place he or she would consider to be "home" and it is established as a matter of geography over a reasonably significant period of time.
Since habitual residence is a test of fact, it cannot be a purely legal concept and there are different views about the factual situations which it is supposed to denote. Some authors believe that the sole criterion that the test of habitual residence should be purely objective, seeking evidence of physical presence over a considerable period of time. Others assert that the test should be both objective and subjective elements: the factum or physical presence in a given place and the animus to continue to stay there.
The Hague Conference on Private International Law has deliberately refrained from offering a definition so that the concept may be flexible and adaptable to practical requirements. Thus, habitual residence may be interpreted differently in different Conflict situations. However, the core of the test will tend to be based on evidence of a long-term stay accompanied by other evidence of the individual's personal and professional life to demonstrate the continuity of the connection between that person and the place of residence. To that extent, the intention of the individual may have some weight.
But it may be difficult to determine where a person has a habitual residence if constantly on the move and has no real or continuing connection with any of the countries through which passed. This could be resolved by reference to the individual's intention, but although the test of intention is well-defined in the case law for the purposes of domicile, there is no consensus of the strength of intention that would have to be shown to establish "habit". Similarly, there is no consensus on the length of time a person should have a home for it to become habitual.
8(1) The domicile and habitual residence of each person is in the state and a subdivision thereof in which that person's principal home is situated and in which that person intends to reside.
(2) For the purposes of subsection (1), unless a contrary intention is shown, a person is presumed to intend to reside indefinitely in the state and subdivision thereof in which that person's principal home is situated.
Agne Limante (2018) Establishing habitual residence of adults under the Brussels IIa regulation: best practices from national case-law, Journal of Private International Law, 14:1, 160–181, DOI: 10.1080/17441048.2018.1442128