{"id":10202,"date":"2022-07-06T15:15:14","date_gmt":"2022-07-06T15:15:14","guid":{"rendered":"http:\/\/legalblog.ie\/general-issues-2\/"},"modified":"2024-02-26T20:04:17","modified_gmt":"2024-02-26T20:04:17","slug":"general-issues-2","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/general-issues-2\/","title":{"rendered":"Connecting Factors"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Conflict_of_Laws\" title=\"Conflict of Laws\">Conflict of Laws<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Federal_and_State\" title=\"Federal and State\">Federal and State<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Jurisdiction\" title=\"Jurisdiction\">Jurisdiction<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Domicile\" title=\"Domicile\">Domicile<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Change_of_Domicile\" title=\"Change of Domicile\">Change of Domicile<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Change_Domicile_Factors\" title=\"Change Domicile Factors\">Change Domicile Factors<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Nationality\" title=\"Nationality\">Nationality<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#EU_Rules_of_Jurisdiction\" title=\"EU Rules of Jurisdiction\">EU Rules of Jurisdiction<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#EU_Domicile_Concept\" title=\"EU Domicile Concept\">EU Domicile Concept<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Habitual_Residence\" title=\"Habitual Residence\">Habitual Residence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#EU_Non-Domicile_Jurisdiction\" title=\"EU Non-Domicile Jurisdiction\">EU Non-Domicile Jurisdiction<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Parallel_Proceedings\" title=\"Parallel Proceedings\">Parallel Proceedings<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-13\" href=\"https:\/\/legalblog.ie\/general-issues-2\/#Outside_EU_Scope\" title=\"Outside EU Scope\">Outside EU Scope<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Conflict_of_Laws\"><\/span>Conflict of Laws<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Conflicts of law, otherwise described as private international law, deals with legal issues that arise when more than two States\u2019 legal systems \/or jurisdictions are involved in a transaction or event.\u00a0 The rules decide which country\u2019s law applies.<\/p>\n<p>The rules also decide which country\u2019s courts have the sole or primary right to hear disputes.\u00a0 They also deal with the enforcement of judgments given in one state in another.<\/p>\n<p>Conflict of laws deals with legal systems. \u00a0Most legal systems correspond with a particular country or state.\u00a0 However, in a number of cases, the legal system is not that of the country or State but a part of the State.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Federal_and_State\"><\/span>Federal and State<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In many countries, there are distinct state and federal legal systems.\u00a0 The best-known example is the United States.<\/p>\n<p>Each US State has its own legal system and laws.\u00a0 Many US laws are very similar and based on uniform laws, which are adopted by each State legislature\/ parliament. Each state has its own parliament and Court.<\/p>\n<p>In addition, the federal US government is competent in certain important fields. There are distinct federal Courts in the United States dealing with federal matters and disputes between residents of different States.<\/p>\n<p>The United Kingdom does not have a single legal system. \u00a0England and Wales, Scotland and Northern Ireland are separate and distinct legal systems.\u00a0 Each has a wholly separate system of laws, although, in practice, there are significant similarities between them. \u00a0Each has its own distinct set of Courts, although the highest Court of each is the UK Supreme Court (formerly the House of Lords).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Jurisdiction\"><\/span>Jurisdiction<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Jurisdiction refers to the power of Courts to hear disputes.\u00a0 Sometimes it is the case that several different countries can hear the dispute in a particular matter, and the actual country which determines it may be decided by who initiates proceedings first and whether the matter is objected to.<\/p>\n<p>There is considerable freedom for parties to decide which country\u2019s laws and which country\u2019s Courts may hear disputes.\u00a0 This freedom is wider in commercial transactions than in consumer transactions. \u00a0Consumer protection rules make it obligatory that consumers be sued in their own jurisdiction in many cases.<\/p>\n<p>Sometimes, one country&#8217;s courts apply another country\u2019s law.\u00a0 In this case, the judge hears evidence of the foreign law from an expert and applies it to the facts.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Domicile\"><\/span>Domicile<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Domicile is an important concept in conflict of laws. Domicile has different meanings in different contexts.<\/p>\n<p>The traditional meaning which holds in property law, wills and issues regarding long-term personal status is that domicile is a person\\&#8217;s long-term home.\u00a0 It is where he or she intends to live and, ultimately, to die.\u00a0 In the context of European Union rules, domicile has a different meaning which does not imply the same notion of one\u2019s permanent home.\u00a0 It is closer to habitual residence.<\/p>\n<p>At common law, domicile means the permanent home or centre of gravity of one\\&#8217;s affairs and interests. A person can only have one domicile.\u00a0 Domicile of origin is where the person is born.<\/p>\n<p>In order to show a change of domicile, there must be the intention to take up a permanent home in another country.\u00a0 Children obtain the domicile of the parents on whom they are dependent.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Change_of_Domicile\"><\/span>Change of Domicile<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Generally, a person can have only one domicile. \u00a0It is presumed that a person&#8217;s domicile continues.\u00a0 Therefore it is difficult to show loss of domicile.\u00a0 A person who wishes to prove a change of domicile must prove it.<\/p>\n<p>The decision to change must be free and not result from imprisonment or significant pressure. In order to show a change in domicile, it is necessary to show a cessation of residence and intention.\u00a0 Important questions include; Does the person intend to return to their former country?\u00a0 Does he intend to permanently remain in the new country?<\/p>\n<p>Formerly, if a child was living with his or her parents who are living together, the child took the domicile of the father.\u00a0 If this is not the case, the father dies or is separated, and the child normally takes the domicile of the mother.\u00a0 If the parents are alive but living apart, the domicile of the person with whom the child lives determine the position.<\/p>\n<p>Formerly, a married woman took the domicile of her husband.\u00a0 This was found to be against the Constitution and was abolished by law separately in the mid-1980s.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Change_Domicile_Factors\"><\/span>Change Domicile Factors<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In order to obtain a different domicile, a person must go to another country with the intention of residing therein indefinitely. \u00a0Physical presence or residence and intention is required.\u00a0 The intention must be to remain there permanently.\u00a0 Therefore an intention to stay for a particular job or period would be inconsistent with this.<\/p>\n<p>The question may be decided by reference to how the person behaves.\u00a0 For example, the purchase of a grave or property and making long-term commitments to the country.\u00a0 If a person&#8217;s intentions contradicted immigration law, this would tend to negate domicile.<\/p>\n<p>The fact that a person has lived in a place and made it his permanent home does not necessarily mean that he is domiciled there.\u00a0 Naturalisation or citizenship is a factor but is not completely decisive.<\/p>\n<p>The purchase of property is a factor, though this is less so than before.\u00a0 Formerly buying as opposed to renting might be seen to be indicative of the necessary intention.\u00a0 The degree of integration into the community, exercising voting rights, newspapers, learning the language of the country and integrating are relevant factors.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Nationality\"><\/span>Nationality<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Nationality refers to the country. Nationality usually goes with citizenship.<\/p>\n<p>Nationality does not play a significant role in Irish or English law.\u00a0 It does have a greater role in continental Europe as a connecting factor.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"EU_Rules_of_Jurisdiction\"><\/span>EU Rules of Jurisdiction<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There are distinct sets of rules in governing jurisdiction (the court&#8217;s powers).<\/p>\n<p>Within the European Union, the matter is regulated by EU law. \u00a0European Union law is based on a European-wide regulation. This has the direct force of law in all European Union countries and EEA countries. Questions on the interpretation of the EU Regulations may be referred to the Court of Justice of the European Union.\u00a0 This allows for a common European Union-wide interpretation and meaning.<\/p>\n<p>European legislation applies to civil and commercial matters.\u00a0 It does not apply to revenue, customs or governmental and administration matters.\u00a0 It will therefore apply to the vast majority of private commercial disputes within the European Union.<\/p>\n<p>Certain types of matters are not governed by EU legislation.\u00a0 This includes the legal status of persons and companies, matrimonial relationships, wills and succession. \u00a0The Regulation does not apply to bankruptcy, winding up or other arrangements.\u00a0 There is a separate European Union legislation on cross-border recognition of insolvency.\u00a0 See our section on insolvency.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"EU_Domicile_Concept\"><\/span>EU Domicile Concept<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The general rule in European Union matters is that the defendant, i.e., the person being sued, should normally be sued in the Courts of his domicile.\u00a0 Domicile, in this context, has a special meaning different to the common law rules of domicile used in Ireland in other contexts such as revenue law, taxation, succession, matrimonial and other such areas relating to long-term status.<\/p>\n<p>European Union law applies its own rules in determining whether a person is domiciled.\u00a0 A person is domiciled in Ireland if he is a resident and the circumstances indicate that his residence has a substantial connection. It is possible for a person who is physically living in the EU not to be domiciled in any state for the purpose of the legislation.<\/p>\n<p>If a person is a resident in Ireland and the nature and circumstances of his residence indicate that he has a substantial connection with Ireland, then he will be presumed to have such connection if he has been a resident for at least three months or more.<\/p>\n<p>The nature and circumstances must indicate a substantial connection. \u00a0A substantial connection is presumed until the contrary is shown if a person has been resident for at least three months. \u00a0A person will be presumed domiciled if Ireland is his settled or usual place of abode. In deciding whether a person is domiciled in another European Union state, the Court must apply the law of the other state.<\/p>\n<p>A company is domiciled in the place where it has its statutory seat, its central administration or its principal place of business.<\/p>\n<p>An individual may be domiciled in more than one EU state.\u00a0 A company may be domiciled in more than one state by having its central administration in one place and its central business in another place.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Habitual_Residence\"><\/span>Habitual Residence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In modern EU-derived legislation, habitual residence is a connecting factor. It is beginning to substitute domicile in some contexts, such as wills, matrimonial matters and family contexts.<\/p>\n<p>Habitual residence is a question of fact, depending on the circumstances. \u00a0The person alleging a change must prove it. \u00a0It is possible to have more than one habitual residence.<\/p>\n<p>In the case of adults, habitual residence requires physical residence and an intention or a settled purpose to remain there.\u00a0 Where there is residence for more than a year, this would be enough for habitual residence. \u00a0Less than a year is more problematic.<\/p>\n<p>The settled intention must be part of the person&#8217;s settled order of life for the time being.\u00a0 The person need not necessarily have put down roots, but there must be a settled purpose.\u00a0 It may be enough that the intention is there to remain for a limited period of time (in contrast with common law domicile).<\/p>\n<p>A person can become a habitual resident by going to a country to take up employment for a period. \u00a0Residence must be voluntarily adopted. \u00a0The habitual residence of children does not follow that of parents and their carers in the same way that domicile does.\u00a0 A newborn child would take the habitual residence of the parent with parental responsibility.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"EU_Non-Domicile_Jurisdiction\"><\/span>EU Non-Domicile Jurisdiction<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Although the presumption is that a person must be sued in his own state, the EU legislation allows a person to be sued in another state under the circumstances set out. \u00a0For example, if a person domiciled in Ireland commits a wrong in Germany, the person wronged may sue in Germany or Ireland.<\/p>\n<p>Businesses may agree to confer jurisdictions on another state\u2019s courts.<\/p>\n<p>The European Union rules determine jurisdiction in cases within their scope. If there is no basis for jurisdiction under the regulation, the Court must decline to make an order.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Parallel_Proceedings\"><\/span>Parallel Proceedings<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The EU regulation attempts to reduce cases where there may be a possibility of conflicting judgments or orders. \u00a0Where there are parallel proceedings about the same matter legitimately bought before the courts in one state, and second proceedings are commenced in another state, the court in the second commenced proceedings must stay proceedings in favour of the first court in which was commenced.\u00a0 This applies where two or more states may legitimately assume jurisdiction in relation to the same matter.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Outside_EU_Scope\"><\/span>Outside EU Scope<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Outside of cases where the European Union regulation applies, it is possible to sue a person when he is physically situated in the State.\u00a0 An alternative is that the Court may give permission to issue the proceedings and serve them outside the State.<\/p>\n<p>This latter power may be exercised where the defendant is resident, but the events and subject matter are connected with Ireland.\u00a0 Under the non-EU rules, the Court has a good deal of discretion.<\/p>\n<p>Even where a person is physically sued because he happens to be in Ireland at the time, the Court may refuse jurisdiction on convenience or discretionary grounds.\u00a0In contrast, the European Union rules are mandatory.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-10202\" data-postid=\"10202\" class=\"themify_builder_content themify_builder_content-10202 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Conflict of Laws Conflicts of law, otherwise described as private international law, deals with legal issues that arise when more than two States\u2019 legal systems \/or jurisdictions are involved in a transaction or event.\u00a0 The rules decide which country\u2019s law applies. The rules also decide which country\u2019s courts have the sole or primary right to [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[153,154],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10202"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=10202"}],"version-history":[{"count":10,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10202\/revisions"}],"predecessor-version":[{"id":32361,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10202\/revisions\/32361"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=10202"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=10202"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=10202"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}