Within divorce proceedings, you may need to prove habitual residence or domicile in England or Wales on the part of you and/or your spouse. Therefore, you will need to understand the definitions of habitual residence and domicile.
Difference between habitual residence and domicile
Habitual residence
Habitual residence means that you live somewhere regularly. Here are some examples of habitual residence:
- If you have lived in England all your life, or for some years, then you are a habitually resident in this country. If you visit another country for a holiday, you would not become habitually resident in that country, even if the holiday lasted for several months – you would remain habitually resident in England.
- If a family moves abroad in connection with a family member’s temporary employment, then this may be enough to establish habitual residence in that other country, even if it is only for a period of a few months.
- A person can cease to be habitually resident in a country in a single day if he/she leaves with a settled intention not to return, and to take up long term residence in another country. However, that person would not become habitually resident in the other country on the same day. He/she would need to stay in country B for an appreciable period of time, with a settled intention to remain there, before becoming habitually resident.
- Habitual residence is not lost by temporary absences in a different country, provided that those absences are not inconsistent with habitual residence in England, e.g. working abroad for short periods of time.
Domicile
Domicile is even more difficult to define and explain. In short, a country of domicile is the country where a person has his/her closest ties.
Domicile is fixed in the country where a person has decided voluntarily to live, with the intention of making that country his/her permanent home. An adult can only have one domicile at a time – either a domicile of origin or choice.
- A domicile of origin is the domicile which everyone acquires automatically at birth. It is usually the country in which their father is domiciled at the date of birth. For most people, the domicile of origin will be the country in which they were born. A domicile of origin is never lost completely. It is, however, suspended if someone acquires a domicile of choice in a different country. It revives to fill any gap created if a domicile of choice ends, so long as it is not replaced by another domicile of choice.
- A domicile of choice arises when a person resides in a different country from their domicile of origin and intends to make that new country his/her home permanently, unless or until something happens to make him/her change their mind. Therefore, a person’s domicile of origin is replaced by a domicile of choice when he/she goes to live permanently in another country, with the intention of staying there unless something unforeseen occurs.
Factors taken into consideration
Important factors that are taken into consideration in deciding whether habitual residence or domicile has been established include the following:
- Where does a party usually/always live, work, study, and/or enjoy leisure time?
- If a party moves out of England or Wales, is this move only temporary?
- Does a party intend to move his/her affairs to another country?
- Where has a party retained his/her properties and furniture, even if rented out?
- Where is a party’s car registered?
- Where is a party’s mailing address?
- Where is a party registered with doctors etc.?
- Does a party have English or foreign mobile phones?
- Where is a party’s financial arrangements based – such as bank accounts, financial advice, tax status, national insurance contributions, etc.?
- What is a party’s nationality?
How Nelsons can help
If you need advice on any international divorce related matter or have any other family law-related queries, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
For more information or advice, please call a member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.