For the non-lawyer the distinction between ‘habitual residence’ and ‘domicile’ must seem pretty silly. For the avoidance of doubt (as we say in the trade!) ‘habitual residence’ is the country where your life is mainly based; whereas ‘domicile’ is the country where you have your closest ties and regard as your permanent home – often your country of birth.
Mostly, for practical purposes, the distinction between the 2 concepts doesn’t matter much. Often it amounts to the same thing. For a few of us the distinction may be of psychological or emotional importance, for example there is a real (not imagined) difference between having your family life in England (habitual residence) and having your birth place, permanent home and closest ties in one of the Caribbean islands (domicile). For others, not only lawyers, the distinction may be of crucial legal importance. For example, whether or not a child has been unlawfully or ‘lawfully’ abducted could quite literally hang on the Court’s ruling on these concepts.
For example, in one case of a mother escaping domestic violence from a European country, she was able to remain in England with the children based upon the court’s ruling of ‘habitual residence’, despite the fact that the family had only been here for less than a year. The court gave great weight to the facts that the family had ‘settled quickly’, and that they ‘loved’ the local environment and that the children were attending school here. The court also found that the family ‘had become integrated to a very substantial degree’ in the social and familial fabric. Remember, they had only been here for less than a year! These are the type of cases which give rise to the oft-quoted Court of Appeal maxim that ‘each case is decided on its own particular facts’.
Bastian Lloyd Morris LLP is a Limited Liability Partnership and is authorised and regulated by the Solicitors Regulation Authority. Registered in England under company no: OC329737.