Recently, dealing with a divorce case, I was completing a fairly routine procedural document when it suddenly dawned upon me that the distinction between ‘habitual residence’ and ‘domicile’ must seem pretty silly to the non-lawyer.
For the avoidance of doubt (as we say in the trade!) habitual residence is the country where your life is mainly based; whereas domicile is the country where you have your closest ties and regard as your permanent home – often your country of birth.
Mostly, for practical purposes, the distinction between the two concepts doesn’t matter much. Often it amounts to the same thing. For a few of us, the distinction may be of psychological or emotional importance, for example there is a real (not imagined) difference between having your family life in England (habitual residence) and having your birthplace, permanent home and closest ties in one of the Caribbean islands (domicile). The two concepts are, therefore, not mutually exclusive. For others, not only lawyers, the distinction may be of crucial legal importance. For example, whether or not a child has been unlawfully or lawfully abducted could quite literally hang on the court’s ruling on these concepts.
For example, in one case of a mother escaping domestic violence from a European country, she was able to remain in England with the children based upon the court’s ruling of habitual residence, despite the fact that the family had only been here for less than a year. The court gave great weight to the fact that the family had ‘settled quickly’, and that they ‘loved’ the local environment and that the children were attending school here. The court also found that the family ‘had become integrated to a very substantial degree’ in the social and familial fabric. Remember, they had only been here for less than a year! These are the types of cases which give rise to the oft-quoted Court of Appeal maxim that ‘each case is decided on its own particular facts’.
Sometimes, people confuse domicile with nationality. The best way to understand the difference is that you can only ever have one domicile at a time, whereas nationality can be dual, even multiple.
Domicile can become an extremely complex concept to grapple with if there have been recent whole-family moves from and to other countries, or even in the more distant past.
Also, when you are born, you acquire what is known as a ‘domicile of origin’ which is usually:
- the country your father considered his permanent home if your parents were married, or
- the country your mother considered her permanent home if your parents were unmarried, or your father had died
It’s all very antiquated!
Furthermore, settling in another country as an adult may result in that country becoming your ‘domicile of choice’. Looking at the case law, the sorts of things that are relevant are a) location of assets, b) family ties, and c) whether migration was forced or voluntary.
All of this is really important as domicile and habitual residence are the go-to concepts for establishing the court’s legal jurisdiction in the first instance.
As the world shrinks and once far-flung paradises become ever-more accessible – not to mention Brexit – the concepts assume a heightened importance. Think, for example, about ending a cross-cultural marriage, challenging worldwide dispositions under a will, or making transnational arrangements for your children. If you cannot prove domicile or habitual residence, you may not be able to seek permanent relief in the courts of England and Wales.
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