Tell me, where did you sleep last night?

Saturday, 01 February 2014
Richard Frimston explains why residence can be habit-forming

Traditionally, differing private international laws generally used either the connecting factors of nationality or domicile as the test of which jurisdiction or law should apply.

However, in the EU area of freedom, security and justice, reference to nationality is inappropriate and domicile has become increasingly divorced from reality or capable of being ascertained. Habitual residence has therefore established itself as the EU connector of choice, but it is not without its own confusions.

The UK uses the concept internally for social security purposes and has its own particular habitual residence test.

The various Hague Conventions use the concept but it is always a matter for individual national courts to provide interpretation.

In the case of Ikimi v Ikimi [2001] EWCA Civ 873 the ‘South British’ Court of Appeal recognised that the same meaning was to be given to ‘habitual residence’ wherever it appears in family law statutes, but that the same extension may not apply to Hague Convention cases. Thorpe LJ said: ‘I would not however necessarily make the same extension to the Hague Convention, which is an international instrument, the construction of which is settled and developed within the wider field of international jurisprudence.’

There does not seem to be authority that the term must have the same meaning under differing Hague Conventions or that it must have the same meaning in Scotland or other parts of the UK for the purposes of the same convention.

In contrast, for the purposes of the various EU regulations, the term has one meaning throughout the EU and is subject to the defining jurisdiction of the Court of Justice of the European Union (CJEU). It is used as a connecting factor in many EU Regulations, such as Brussels II bis, the Maintenance Obligations Regulation and Romes I, II and III. There is, however, generally no specific definition of habitual residence in the regulations. In the context of the Brussels II bis regulation, in the case of Marinos v Marinos [2007] EWHC 2047 (Fam), Munby J held that habitual residence in relation to EU legislation and the CJEU has its own particular meaning, separate from that which might be given by individual member states.

Munby J set out a number of guidelines to be used in difficult circumstances: EU habitual residence is defined more by the centre of a person’s interests than by a particular duration of residence; although a person may be ordinarily resident in more than one state at any particular time, there can only be one EU habitual residence at any time; and, in the same manner as a change in domicile, EU habitual residence can be lost and gained within one day.

The fifth indent of article 3.1(a) of Brussels II bis has specific definitions limiting a change of habitual residence until after six or 12 months of residence. The case of V v V [2011] EWHC 1190 (Fam) has followed the interpretation given by Marinos rather than Munro v Munro [2008] 1 FLR 1613. It will be interesting to see whether higher courts follow these views.

The European Court of Justice in the case of Mercredi v Chaffe C-497/10 of 22 December 2010 has subsequently considered that ‘the concept of “habitual residence”, for the purposes of articles 8 and 10 of [Brussels II bis] must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment.’

In the case of the Succession Regulation, it is clear the term ‘habitual residence’ requires an even closer nexus than in other EU regulations. Recital 23 explains: ‘In order to determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation.’

There will be many difficult cases and, if faced with one, a choice of the national law may be helpful. Sleep peacefully.

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Richard Frimston

Richard Frimston TEP is a Partner at Russell Cooke LLP and Chairman of the STEP EU Committee.

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