Habitual Residence - Comparison With Domicile

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 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 passed. 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 has produced a test. In Canada, the Domicile and Habitual Residence Act for Manitoba abolished the common law test of domicile and substituted in s8:

(1) 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

(2) 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.