Habitual Residence and Domicile: What Do They Mean?

In this blog, FLiP Director Charlotte Symes explains the meaning of habitual residence and domicile, two common terms that may arise within divorce proceedings. 

Habitual residence is a concept that is crucial in determining in which country’s court your divorce can be heard.  In England and Wales (the name of this jurisdiction; other parts of the British Isles and the UK operate separate legal systems) ‘domicile’ is also relevant.

Habitual residence

Currently, the courts of England and Wales apply the European test for ‘habitual residence’. The approach in relation to adults is known as the ‘centre of interests’ test and is determined by reference to the place where a person has established on a fixed basis, a permanent or habitual centre of interest, with all the relevant facts being taken into account for the purposes of determining such residence:

• You can only be habitually resident in one place at any time (although you can be resident in more than one country (e.g. by having a home there));
• The residence must be fixed (habitual) but does not need to be permanent;
• It is possible for habitual residence to be established immediately upon arrival in a country, as long as your presence is coupled with the intention to fix and make habitual your residence. On the other hand, mere presence alone will not amount to habitual residence; and
• The duration of a stay is not determinative, rather the quality of the stay is the relevant consideration.

The court is required to consider all the circumstances and this could include:

• Motivation behind your presence in the particular country;
• Residence of members of your nuclear family;
• Where your children are being educated;
• Where your employment is situated;
• Where you pay tax;
• Where you are registered to vote;
• Where your assets are situated (property, pensions, investments);
• Location of any bank accounts;
• Your postal address;
• Location of your doctor;
• Location of any club memberships and hobbies; and/or
• Where any pets are based.

A different approach is taken by the court in determining a child’s habitual residence (see below).

Domicile

The concept of domicile can also be relevant when a court of England and Wales is determining if it can hear a case.

Domicile is a UK concept (in other European countries they rely on nationality, which has a different meaning) and domicile is determined by the application of a set of legal principles and not merely a finding of fact.  Broadly, it is the place of an individual’s permanent home, but the application of the legal rules can give rise to surprising results e.g. an individual can be domiciled in a country in which they have never set foot.

Some general concepts apply:

• Everyone has a domicile, starting with domicile of origin at birth. A domicile of origin can never be extinguished, but it can be displaced by the acquisition of a domicile of dependency or choice.
• If a later domicile ends, then the domicile of origin will become relevant again.

The burden of proof lies with the person asserting a domicile of choice.  It is a high hurdle because it requires more than the usual civil standard of balance of probabilities.

Domicile of origin

Broadly, a child’s domicile will be determined by their parents.  It will be your father’s domicile (if your parents are married and your father was alive at the time of birth), or your mother’s domicile (if your parents are unmarried).

Domicile of dependency

A dependent person (e.g. a child under 16) will acquire the domicile of the person they are dependent on and this can displace their domicile of origin (e.g. where a father dies after birth and the child lives with their mother, they will acquire their mother’s domicile).

Domicile of choice

This requires actual residence in the new country and an intention to reside there permanently and indefinitely. Whilst residence is a matter of fact, the person’s intention will be determined by the court.  A person cannot acquire a domicile of choice without being habitually resident in that same country. The court will examine all the circumstances of an individual’s life and many of the same factors listed above in the context of habitual residence will also relevant, but will be analysed to consider the factual question of intention to fix domicile:

Factors the courts have considered to determine the question of intention to take a domicile of choice include:

• contents of wills;
• purchase of land or a grave;
• prospects of succeeding to a title or estate;
• change of nationality or religion;
• education, marriage or the settlement in the new domicile of the party’s children;
• adoption of a new name;
• employment; and/or
• paying income or inheritance tax.

A child’s habitual residence

Unlike domicile, there are no legal rules that mean a child’s habitual residence is determined by that of their parents.  Instead, it is a factual question based on the place that reflects some degree of integration by the child into a social and family environment.  This means that whilst the intentions of the parents are one of the relevant factors, they are not determinative. The English courts will be focussed on the situation of the child and will include consideration of the details of their life including attendance at school, the child’s linguistic knowledge and the family and social relationships of the child in that country.

The following general principles apply:

• The deeper the child’s integration in the old country the slower their achievement of the requisite degree of integration in the new country;
• The greater amount of adult pre-planning in relation to the move, the faster the child’s degree of integration will be: e.g. a new school, the establishment of hobbies and networks of friends, and registration with a doctor’s surgery; and
• Where all the central members of the child’s life in the old country have moved with them then the integration in the new country will be quicker.