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Habitual Residence: The New Domicile?

Published online by Cambridge University Press:  17 January 2008

Pippa Rogerson
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Extract

There have been several cases reported over the last few years on the meaning of “habitual residence”. This comparatively new phrase is much in use not only in domestic legislation but also in various Hague Conventions on the reform of private international law and it is in widespread use by the European Commission. Habitual residence is the basis for allocating jurisdiction to that State's court, especially in relation to matrimonial causes and child custody. For example, it has been proposed by the European Commission as a replacement for domicile in the new Convention on the Jurisdiction and Enforcement of Judgments in Civil Matters. Habitual residence is also extremely important in connection with tax matters and social security. It is additionally used in the Immigration Act 1971. Other than its purpose in allocating jurisdiction, habitual residence is beginning to be adopted as a connecting factor for choice of law, for instance the Rome Convention on Choice of Law in Contract.

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Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 1 , January 2000 , pp. 86 - 107
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. Re A. (Abduction: Habitual Residence) [1996] 1 F.L.R. 1; Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887; D. v. D. (Custody: Jurisdiction) [1996] 1 F.L.R. 574; Re M. (Care Orders: Jurisdiction) [1997] 1 F.L.R. 456; M. v. M. [1997] 2 F.L.R. 263; Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937; Re A. (Abduction: Habitual Residence) [1998] 1 F.L.R. 497; Re S. (Custody: Habitual Residence) [1998] 1 F.L.R. 122.

2. For example, Family Law Act 1996, s.19(2)(b). Domicile and Matrimonial Proceedings Act 1973, s.5(3)(b), Family Law Act 1986, s.46(l)(b), Adoption Act 1976, s.17, Child Abduction and Custody Act 1985, Schedule 1.

3. Council Act 22 Dec 1997 (O.J. 1998 C33/20 31.1.98).

4. See for example Swaddling v. Adjudication Officer C–9Q/97 The Times, 4 March 1999, Fifth Chamber 25 Feb. 1999); Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937; R. v. Secretary of State for Social Security, ex p. Sarwar (1995) 7 Admin. L.R. 781. This use of habitual residence has a developing European and domestic jurisprudence.

5. According to Rayden & Jackson on Divorce #2.26 n. 1.

6. Enacted in the Contracts (Applicable Law) Act 1990. If the applicable law has not been chosen by the parties then the presumption arises that the applicable law is that of the habitual residence of the party who is to make the “characteristic performance” of the contract (Art.4(2)). The use of that presumption and therefore of the necessity to determine the habitual residence of that party is likely to be rare partly because many contracts will have an express choice of law clause and partly because most of the likely litigation will arise out of commercial contracts in which habitual residence is replaced by the principal place of business. There are no cases reported on this use of habitual residence to date.

7. Art.5.

8. Art.8.

9. Dicey & Morris: The Conflict of Laws (12th ed. 1993) p.162Google Scholar. However, something rather close to a definition was laid down by the Committee of Ministers of the Council of Europe. It has declared that “in determining whether a residence is habitual, account is to be taken of the duration and the continuity of the residence as well as of other facts of a personal or professional nature which point to durable ties between a person and his residence” (cited toe cit.). For other material attempting to define habitual residence see Beaumont, and McEleavey, , The Hague Convention on International Child Abduction (Oxford, 1999) p.89, n.10.Google Scholar

10. This point was made explicitly in relation to ordinary residence in R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309 at p.34O, and taken into habitual residence in Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C 562 at p.578. See too, Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937.

11. The Court of Appeal [1998] 2 All E.R. 728 Sir Christopher Staughton at p.733 and Morritt L.J at p.743. After Swaddling v. Adjudication Officer the decision might now need to be treated with caution in a European context as the requirement for an appreciable time is contrary to a communitaire interpretation of habitual residence.

12. [1980] Fam.Div. 198.

13. This fear was expressed by Thorpe L.J in his dissenting judgment in the Court of Appeal in Nessa v. Adjudication Officer [1998] 2 All E.R. 728 at p.737.

14. As was the result in Nessa v. Adjudication Officer, ibid. See too the House of Lords [1999] 1 W.L.R. 1937.

15. [1990] 2 A.C. 562, also known sub nom. C. v. S. (A Minor: Abduction).

16. Ibid, at pp.578–9. See too, Levene v. Commissioners for Inland Revenue [1928] A.C. 217; I.R.C. v. Lysaght [1928] A.C. 234.

17. See too Lord Scarman's view in the earlier case of R. v. Barnet London Borough Council, ex p. Shah that this is “ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind” ([1983] 2 A.C. 309 at p.344).

18. 12th ed. 1993, pp.162–3. See too Clive [1997] Jur.Rev. 307.

19. Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887 at p.896; D. v. D. [1996] 1 F.L.R. 574 at p.579.

20. M. v. M. [1997] 2 F.L.R. 263; H. v. H. [1996] 2 F.L.R. 570; Nessa v. Chief Adjudication Officer [1998] 2 All E.R. 728; Re F. (A Minor) (Child Abduction) [1992] 1 F.L.R. 548; Re K. (Abduction: Consent Forum Conveniens) [1995] 2 F.L.R, 211; Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887; Re M. (Minors: Residence Order: Jurisdiction) [1993] 1 F.L.R. 495; Re N. (Child Abduction: Habitual Resilience) [1993] 2 F.L.R. 124; Re R. (Wardship: Child Abduction) [1992] 2 F.L.R. 481; Re S. (A Minor) (Abduction) [1991] 2 F.L.R. 1; Re S. (Minors) (Child Abduction: Wrongful Retention) [1994] 1 F.L.R. 82.

21. Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C 562; Re S. (Custody: Habitual Residence) [1998] 1 F.L.R. 122; Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937.

22. Lord Scarman in R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309.

23. Fentiman [1991] C.L.J. 445.

24. On the other hand, there are legal rules to deem presence within the jurisdiction where there is no presence in fact.

25. Maharanee of Baroda v. Wildenstein [1972] 2 Q.B. 283.

26. Adams v. Cape Industries plc [1990] Ch.433.

27. For example, it is explicitly excluded as a ground for jurisdiction to be used against those domiciled in the Contracting States to the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil Matters (Art.3).

28. The Spiliada, Spiliada Maritime v. Cansulex Ltd [1987] A.C. 460 and cases following it A similar constraint has not so far been developed in relation to the recognition of foreign judgments but there are some signs of such a movement (Rogerson [1998] C.J.Q. 91).

29. Lord Brandon said that this “appreciable time” was necessary before a settled intention to reside could be described as habitual (Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562 at pp.578–9).

30. [1998] 2 All E.R. 728.

31. Case C–90/97, The rimes, 4 March 1999.

32. [1998] 1 F.L.R. 122.

33. She seems only to have been in England for about six weeks.

34. [1994] 2 F.L.R. 915.

35. Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937 at 1943.

36. This has echoes of the rule of revival of a domicile of origin. In contrast to the revival rules however there is a lacuna in habitual residence as someone can lose a habitual residence easily but take some time to gain a new one (Re K. (Abduction: Consent Forum Conveniens) [1995] 2 F.L.R. 211 at p.215).

37. [1994] 2 F.L.R. 915.

38. This would be an example of a “detailed rule” exhorted against by both the courts and academic writers, see text to nn.17–19 above.

39. See too, Re F. [1992] 1 F.L.R. 548 (one month sufficient to acquire habitual residence in Australia); V. v. B. [1991] 1 F.L.R. 266 (two months necessary); A. v. A. [1993] 2 F.L.R. 225 (eight months insufficient).

40. Habitual residence can be lost immediately upon leaving a country with a sufficiently fixed intention never to return (Re K. (Abduction: Consent: Forum Convenient) [1995] 2 F.L.R. 211 at p.215).

41. [1993] 1 F.L.R. 993.

42. See too Re B. (Child Abduction: Habitual Residence) [1994] 2 F.L.R. 915.

43. The Times, 8 Jan. 1986, Court of Appeal.

44. [1997] Jur.Rev. 307.

45. M. v. M. [1997] 2 F.L.R. 263. It was found that the family only went to and remained in Scotland after leaving Spain in order to earn enough money to live in England. Having lived in Scotland for two years, the propositus was found to have been habitually resident in Scotland notwithstanding that she only went to Scotland reluctantly and never wanted to stay there.

46. [1996] 1 F.L.R. 1.

47. Such a rule has the obvious benefit of clarity and certainty but it is inflexible and there is always the possibility of inappropriate conclusions resulting from it. In Re A by deciding that the children were habitually resident in Iceland all that happened was that the Icelandic courts would have been given jurisdiction. However, on the facts those courts were not. It must be arguable, however, as a connecting factor in a choice of law rule whether habitual residence would have been satisfactory. Would Icelandic law have been appropriate given the lack of real connection between the children and Iceland and their strong connections with other countries?

48. R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309 at p.344.

49. Kapur v. Kapur [1984] F.L.R. 920.

50. [1994] 1 F.L.R. 82.

51. Kapur v. Kapur ibid.

52. R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309 at p.343. However, the propositus may still be liable to tax as being ordinarily resident here notwithstanding the unlawfulness of his residence (R. v. Secretary of Slate for the Home Department, ex p. Margueritte [1992] 3 All E.R. 909). The different result in the tax cases being an example of the different policy issues. That proves the argument that notwithstanding what the courts may say there are indeed different meanings of residence and also that the different purposes of the statutes using habitual residence lead to those different meanings.

53. Lord Slynn did not decide this point in Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937 at 1941 although he did not think that the two were synonymous.

54. Lane J. in Cruse v. Chittum drew a parallel between the acquisition of a habitual residence and domicile of choice to show that ordinary and habitual residence are not the same ([1974] 2 All E.R. 240 at p.243).

55. [1951] P. 116 at pp.121–122.

56. Contrast the dissenting judgment of Thorpe L.J. in the Court of Appeal [1998] 2 All E.R. 728. at p.737.

57. [1997] 2 F.L.R. 263 at p.273. See too Butler-Sloss L.J's judgment

58. Reid v. I.R.C. (1926) 10 T.C. 673 at p.681. The courts can only therefore upset the decision of the Commissioners in very limited circumstances.

59. R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309.

60. Brokelmann v. Barr [1971] 2 Q.B. 602, 611–2. In other cases this “permanence” has been described as for “settled purposes”, see R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309.

61. R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309.

62. [1928] A.C. 234.

63. [1928] A.C. 217.

64. [1998] S.T.C. 475.

65. Kapur v. Kapur [1984] F.L.R. 920 (resided in England over a year and wished to remain here longer).

66. [1990] 2 A.C. 562 at p.578. See too, Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887 at p.896.

67. Whicker v. Hume (1858) 7 H.L.C. 124.

68. [1983] 2 A.C. 309 at p.345.

69. Law Commission Report No.168 on the Law of Domicile (1987).

70. Nessa v. Chief Adjudication Officer [1998] 2 All E.R. 728 at p.737.

71. Dicey & Morris: The Conflict of Laws at pp.126 et seq.

72. Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887.

73. Bell v. Kennedy (1868) L.R. 1 Sc. & Div. 307 at p.319.

74. Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887.

75. Re J. (A Minor) (Abduction) [1990] 2 A.C. 562

76. Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937 at 1943.

77. Winans v. A.-G. [1904] A.C. 287 at p.290.

78. Udny v. Udny (1869) L.R. 1 Sc. & Div. 441.

79. See text to nn. 48–50 above.

80. [1928] A.C. 234 at p.245.

81. [1928] A.C. 217.

82. [1928] A.C. 234 at p.245.

83. Davies, , Booth's Residence, Domicile and UK Taxation (Butterworths Special Edition 1997) para.2.05.Google Scholar

84. For example, see the method of assessment of the time Mr Levene spent in this country in the years 1920–24 [1928] A.C. 217 at p.220.

85. See for example D. v. D. (Custody: Jurisdiction) [1996] 1 F.L.R. 574; Re A. (Wardship: Jurisdiction) [1995] 1 F.L.R. 767.

86. Re N. (Child Abduction: Habitual Residence) [1993] 2 F.L.R. 124

87. Re B. (Minors) (Abduction) (No.2) [1993] 1 F.L.R. 993.

88. Re F. (A Minor) (Child Abduction) [1992] 1 F.L.R. 548.

89. Beaumont and McEleavey, Hague Convention on International Child Abduction, pp.90–1.

90. Although in some cases the intention may be sufficiently clear, see Macrae v. Macrae where Somervell LJ said “Ordinary residence is a thing which can be changed in a day. A man is ordinarily resident in one place up till a particular day. He then cuts the connection he has with that place-in this case he left his wife; in another case he might have disposed of his house-and makes arrangements to make his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for at any rate an indefinite period, then, as from that date he is ordinarily resident at the place to which he has gone.” ([1949] 2 All E.R. 34 at pp.36–7).

91. [1988] 1 W.L.R. 292.

92. For a case holding explicitly that being sent abroad to school was not of itself sufficient to acquire a new habitual residence in the country of the school see Re A. (Wardship: Jurisdiction) [1995] 1 F.L.R. 767.

93. Miesegaes v. I.R.C. (1957) 37 T.C. 493 at p.500.

94. For example, the propositus spent more days in each year in England.

95. Civil Jurisdiction and Judgments Act 1982, ss.42(7), 43(7).