What Is The Difference Between Habitual Residence & Domicile?
Habitual Residence and Domicile are both important terms that are commonly used in divorce proceedings. Many people make the mistake of using them interchanagbly, but the two have important key differences in their definitions that can greatly affect the way in which proceedings are carried out, and determin whether or not you are eligible to issue a petition in the English and Welsh Courts.
Read on to see concise definitions of the terms, and what criteria you must meet in order to issue a petition.
Broadly speaking, the Habitual Residence of a person is the place in which their life in mainly based. In order for a place to qualify as your given habitual residence, you must be able to show that you intend to stay settled there for a foreseeable amount of time. For example, if you own property in a given country and your children are eligible to attend school there, you would usually qualify as a habitual resident of that place.
One real-life example that explains this term well is if your family was to move their lives to another country, even if temporarily, on account of one or both parents acquiring a job there. While not moving there permanently, you are planning to live as habitual residents of this country for a considerable period, even if this is only a few months.
Domicile as a term is generally quite hard to define. Your domicile is essentially the place in which a person has their more permanent life and family ties. For most, this will be the country in which you were born and grew up, but it is not always fixed in this way.
Domicile of origin- When a person is born, they acquire their parent’s domicile. If your parents were married, this will be your father’s. If they were not, or if your father died before you were born, then your domicile will be the same as your mother’s. This is classed as your domicile of origin, and will always be a part of who you are.
Domicile of choice- If, later in life, a person decided to uproot their life permanently to a new country, they have the opportunity to suspend their registered domicile of origin. In this case, they would have to officially make their new country of residence their domicile, known as a domicile of choice.
What must my Habitual Residence/Domicile be to issue a petition in the English and Welsh Courts?
To issue a petition in the English and Welsh Courts, you must satisfy at least one of the following criteria:-
Both parties are habitually resident in England and Wales.
Both parties were last habitually resident in England and Wales and one of the parties still resides there.
The Respondent is habitually resident in England and Wales.
The Petitioner is habitually resident in England and Wales and has resided there for more than one year immediately before presenting the petition.
The Petitioner is domiciled and habitually resident in England and Wales and has resided there for more than six months immediately before presenting the petition.
Both parties are domiciled in England and Wales (only if you are petitioning in relation to marriage).