Habitual Residence - Discussion

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, the Convention on International Child Abduction, etc.

Habitual residence is something less than domicile but more than simple residence. It 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.