Habitual Residence
EU Definition
A special definition of domicile applies under the Brussels Regulation. This is applicable to cases where that legislation applies. This covers a very broad range of civil and commercial matters where the defendant is domiciled in another EU state in accordance with the definition of domicile.
The Irish implementing regulations define “domicile” for the purpose of the Brussels regulation. This is radically different to the common law concept of domicile. For the purposes of the Brussels I Regulation (recast) and these Regulations-
- a person is domiciled in the State or another state (not being a Member State) if he or she is ordinarily resident in the State or that other state,
- a person is domiciled in a place in the State only if he or she is domiciled in the State and is ordinarily resident or carries on any profession, business or occupation in that place, and
- a trust is domiciled in the State only if the law of the State is the system of law with which the trust has its closest and most real connection.
Local Court Jurisdiction
The jurisdiction of the Circuit Court in proceedings that may be instituted in the State under the Regulation shall be exercised by the judge of the Court for the time being assigned to the circuit where the defendant, or one of the defendants, ordinarily resides or carries on any profession, business or occupation. This does not apply where, apart from that paragraph, the Circuit Court’s jurisdiction would be determined by reference to the place where the defendant resides or carries on business.
The jurisdiction of the Circuit Court or District Court in proceedings that may be instituted in the State under the Brussels Regulation by a plaintiff domiciled in the State shall be exercised by the judge for the time being assigned-
- in the case of the Circuit Court, to the circuit, and
- in the case of the District Court, to the district court district,
in which the plaintiff or one of the plaintiffs ordinarily resides or carries on any profession, business or occupation.
Companies
For the purpose of the Brussels Regulation, a company or other legal person or association of natural or legal persons is domiciled in the place where it has its
- statutory seat
- central administration or
- principal place of business
This may mean a corporation may be domiciled in more than one seat.
The regulation provides for the purposes of Ireland, Cyprus and the United Kingdom, “statutory seat” means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.
Ordinary Residence
Ordinary residence is commonly used in various statutory schemes to define a connection with a country. In the context of tax, there is a quite precise definition, dependent on the number of days of residence in the year concerned and the previous year. In the context of the judgements regulation, these definitions do not apply.
Ordinary residence must be adopted voluntarily. It may be for several purposes, including education, profession, business, employment, health, family or merely the love of the place. The words ordinary residence should be given a natural meaning and not an artificial meaning. It means physical presence with a degree of continuity beyond temporary absences.
Intention to reside by itself is not sufficient. It is a matter of interpretation whether the residence must be lawful.
Habitual Residence
Habitual residence generally has the same meaning regardless of context. Habitual residence under the Brussels regulation is to be given its EU meaning in accordance with the object and purpose of that regulation. Therefore, it may differ from its meaning in other domestic contexts.
Various statutes refer to the concept of habitual residence. It is a question of fact decided by reference to all the circumstances. It does not have the same artificial qualities as a common law domicile.
It seems that a settled intention to reside on a long-term basis will be sufficient to constitute habitual residence. It does not require physical presence at all times. Temporary absences for holidays or educational purposes would not end habitual residence. Absence may be for an appreciable period of time and may do so under some circumstances.
The courts have not defined an appreciable period of time. It will depend on the particular circumstances of the case and the legislation concerned. If a person goes to another state with the intention of settling there permanently, the habitual residence may change abruptly.
In other circumstances, the habitual residence may change only after a period when habitual residence is required elsewhere. As in the case of ordinary residence, it is possible to be habitually resident in more than one place.
Settled Intent
There must be a settled intention or purpose. This refers to the purpose of living in that place concerned. It does not have the same connection with the state or territory required for domicile.
Settled intention may be for a limited purpose, perhaps a period of employment. A person can be habitually resident although he intends to move at a future date to another country.
The settled intention is to reside on a long-term basis. Settled purpose refers to the regular order of life for the time being concerned. The longer the period of residence the easier it is to show settled intention and habitual residence. The person’s facts of life and personal circumstances are looked at in full. The person must assume residence voluntarily.
A person may cease to be habitually residence if he leaves a territory with a settled intention to return but with an intent to take up long-term residence in another country instead. The abandonment of habitual residence may occur without the acquisition of another habitual residence. Unlike domicile, it is possible for a person to have no habitual residence.
Children
The habitual residence of the child is not fixed as that of the parent in the same way as with domicile. It may change according to the circumstances of the parent or principal carer, depending on where the child lives and who is lawfully exercising the rights of custody. If parents are living together, and the child is living with them the child will generally have the parent’s habitual residence. Some cases suggest the newborn child has a habitual residence at birth, but this has been criticised as arbitrary.
If both parents have joint responsibility, neither can unilaterally change the child’s habitual residence by taking, moving and retaining the child in breach of the other’s rights. Generally, when children live together with their parents, habitual residence changes only with the consent or common intention of the parents.
A court order deciding the matter of residence may change habitual residence. If a child is living with one parent for a prolonged period, child is likely to take the habitual residence of the parent concerned.
If one parent has sole lawful custody this is likely to be the habitual residence of the child concerned. A child in the custody of grandparents may acquire their habitual residence.
There is no concept of habitual residence of the parent similar to domicile of dependency. In order for a child’s habitual residence to change, the child must leave the country in which he is resident and reside in another country.