Habitual residence
Encyclopedia
In conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...

, 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
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...

, traditionally used in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 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.

Discussion

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
Convention Relating to the Status of Refugees
The United Nations Convention Relating to the Status of Refugees is an international convention that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not...

, the Convention on International Child Abduction, etc. Habitual residence is something less than domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...

 but more than simple residence. It may also be more discriminating that the test of nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....

 or lex patriae
Lex patriae
The term lex patriae is Latin for the law of nationality in the conflict of laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which law is...

in that the connection is to a specific location within a state rather than to the country
Country
A country is a region legally identified as a distinct entity in political geography. A country may be an independent sovereign state or one that is occupied by another state, as a non-sovereign or formerly sovereign political division, or a geographic region associated with a previously...

 of nationality which may contain several states. 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 which of the laws of the U.S. states is to be applied). A suparanational example of this selection process is contained in Article 19 of the Rome Convention
Rome Convention (contract)
The Convention on the Law Applicable to Contractual Obligations 1980 is a measure in private international law or conflict of laws which aims to create at least a harmonised, if not a unified, choice of law system in contracts within the European Union...

:
States with more than one legal system
  1. 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.
  2. 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, an intention to reside there 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
Hague Conference on Private International Law
The Hague Conference on Private International Law is the preeminent organisation in the area of 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 psseed. 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.

In some countries, the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 has produced a test. In Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

, the Domicile and Habitual Residence Act for Manitoba
Manitoba
Manitoba is a Canadian prairie province with an area of . The province has over 110,000 lakes and has a largely continental climate because of its flat topography. Agriculture, mostly concentrated in the fertile southern and western parts of the province, is vital to the province's economy; other...

 abolished the common law test of domicile and substituted in s8: 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.
Presumption of intent to reside 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.

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