When navigating international family law matters, two key concepts often determine which country’s courts can handle your case: habitual residence and domicile. While the terms are sometimes used interchangeably, they have distinct legal meanings and implications. Understanding both is essential for anyone facing a cross-border divorce, child arrangements dispute, or jurisdiction question. The determination of habitual residence and domicile is crucial for identifying the appropriate forum (court) for resolving family law disputes.
Habitual residence and domicile are often at the heart of jurisdictional disputes in international family law, as they determine which country’s courts have the authority to hear a case.
What is Habitual Residence?
Habitual residence is the country where you live regularly and have the centre of your day-to-day life. Courts look beyond paperwork to consider where you are truly based, where you are settled, and where your main life activities occur.
Key factors in the habitual residence test:
- Where you live most of the time
- Where your children go to school
- Where you work or run your business
- Your social and family connections
- The stability and integration of your life there
- Duration of stay in the country
You do not gain habitual residence simply by owning a property or spending short periods in a particular country. It develops through an established presence and integration. To prove habitual residence, the court will consider both objective evidence of your presence and your intended purpose for living in the country.
What is Domicile?
Domicile is your permanent home, the place you ultimately intend to return to and stay indefinitely. Unlike domicile, habitual residence is more closely linked to a person’s habitual abode, the place where they regularly live and conduct their daily life. It is more fixed than habitual residence and can have significant implications for inheritance, tax, and family law.
Types of domicile:
- Domicile of origin – Usually the country of your birth or your parents’ domicile at the time of your birth.
- Domicile of choice – Acquired by moving to a new country and intending to remain there permanently.
- Domicile of dependency – For children under 16, their domicile generally follows that of their parent or guardian.
A person’s residence status, such as holding a visa or permanent residency, can impact their ability to acquire a domicile of choice. Changing your domicile requires strong evidence of a permanent intention to remain in the new country.
Why Habitual Residence and Domicile Matter in Family Law
The concepts of habitual residence and domicile can directly affect:
- Jurisdiction for divorce proceedings – Determining where you can start your case. Individuals who have returned to the UK after being previously habitually resident may need to show ongoing links with the UK and their intention to settle to re-establish habitual residence.
- Financial settlements – Which country’s laws will apply to dividing assets and deciding maintenance?
- Child arrangements and international child abduction cases – especially under conventions like the Hague Convention, which uses habitual residence to decide where a child should live.
Parties may sometimes engage in forum shopping, seeking to have their case heard in the jurisdiction most favourable to them, making the determination of habitual residence and domicile especially important.
Common Misunderstandings
- “Domicile is the same as citizenship.” While related, they are separate legal concepts
- “Owning a home here makes it my habitual residence.” Not necessarily, it is about where your life is centred, not just property ownership.
- “I can choose any country I prefer to divorce in.” Jurisdiction is decided by legal rules, not personal choice.
Strategic Considerations
If your case involves more than one country:
- Act quickly – Where proceedings are issued first can be crucial.
- Gather evidence – Keep records that show where you are settled.
- Seek early legal advice – Especially if you plan to move countries or have recently relocated- to ensure you understand the habitual residence rules that may affect your case.
VK Law – How We Can Help
At VK Law, we advise clients on complex jurisdiction issues involving both habitual residence and domicile. If your situation spans multiple countries, we can help you understand your position and protect your interests.