General principles

There is no internationally agreed upon definition of habitual residence.^[3] Even within specific jurisdictions, many courts have yet to fully define the term. Numerous domestic statutes and conventions that use habitual residence, such as the Hague Conference on Private International Law, also do not define the term.^[4] This may be to avoid “the rigidity associated with the alternative concepts of domicile and nationality”.^[5] The lack of definition means that habitual residence is generally left to judicial interpretation by the courts in whichever jurisdiction uses it as a connecting factor.^[5]

Although there is no definition, habitual residence can generally be considered something less than domicile but something more than simple residence: a midpoint between the two.^[6] Previous definitions suggested that habitual residence required someone to be physically present in a place for a certain period of time to be considered habitual resident in that place.^[7] However, many scholars and courts have disagreed with this and believe that there are a number of factors that are to be considered in determining someone's habitual residence; while the amount of time spent in a given place is one of those factors, it is not determinative.^[7] Other factors that may be relevant depend on the jurisdiction; for example in the European Union, continuity and durability of the residence are considered in addition to the duration.^[3]

Application

Domestically, the use and application of habitual residence depends on which states are involved in the dispute. Each jurisdiction may use habitual residence in different instances. Therefore, habitual residence can have a significant impact on a person when it is the sole factor, or a factor, used to determine which law applies to a particular dispute or issue. A person's habitual residence could affect marital disputes, land-related disputes, succession, and other types of disputes or matters, depending on the rules of the states involved.^[3]

International Conventions

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. Since then it has become the basis of a number of other conventions either to complement or supplant the traditional connecting factor of domicile. One example of this is in the Convention on International Child Abduction, which uses habitual residence throughout to determine the applicable law in an actual or potential child abduction case.^[8]

Comparison with nationality

Habitual residence 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

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

Habitual residence is fact-dependent; it cannot be a purely legal concept and there are different views about the factual situations that it is supposed to denote. Much of the case law on habitual residence suggests it is purely objective, seeking evidence of physical presence over a considerable period of time.^[7] However, there is an argument to be made that habitual residence does have a subjective element like domicile since intention may, at times, be a factor in considering an individual's habitual residence.^[9] This is particularly true if habitual residence it is considered synonymous with ordinary residence which requires an analysis of a person's "ordinary mode of living".^[10] However, it is not universally accepted that habitual residence and ordinary residence are the same, making it debatable if habitual residence has subjective elements like ordinary residence.^[11]

In comparison, 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).^[12] 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. Therefore, the test for habitual residence is less demanding without this subjective element of intention. The court focuses on the past experience of the individual and not so much on future intention.^[12]

However, it may be more difficult to determine where a person has a habitual residence if they are constantly on the move with no real or continuing connection with any of the countries through which they have passed. This could be resolved by reference to the individual's intention, which is well-defined in the case law for the purposes of domicile, but not for the purposes habitual residence.

The subjective element required for domicile is the biggest difference when comparing the factor with habitual residence. This could be either positive or negative depending on the situation.

Canada

The use of the term "habitual residence" in Canadian law stems from the Hague Convention on Private International Law. At common law, a person's habitual residence is a question of fact determined on a case by case basis. Canadian courts have not provided a clear definition on the term; however, the word “habitual” qualifying the term “residence” suggests that more than just physical presence is required to find someone to be a habitual residence of a place.^[3] Also required is “a minimum connection with some form of dwelling” and “a stay of some duration”.^[3] Duration of time, while important as a factor to consider, is not determinative.^[13] Evidence of present intention to reside is also a factor to be considered.^[14]

In Canadian legislation, residence is becoming more common as the primary personal connecting factor instead of domicile, following the lead of international conventions like the Hague Convention.^[15] Habitual residence specifically is also becoming more common in legislation as drafters use the term as the primary connecting factor. One example is in the Federal Divorce Act which uses a one year period of habitual residence as the basis for which a court in a province has a jurisdiction to hear and determine a divorce proceeding.^[16]