Habitual residence in cross-border family relationships

Habitual residence finds its origins in the 19th Century as a quasi-standardised cross-border notion, an inter-country concept applicable to civil matters. It determines a qualified proximity between the beneficiary of international family law, which is this research focus area of law, and the competent forum and jus. Issues of (non-)recognition and (non-)enforcement of judgments and measures, as well as international cooperation, are also linked to habitual residence. In matters of international cooperation, reference is made to the collaborative approach among judicial, administrative (i.e. Central Authorities) and other authorities (i.e. NGOs) involved in the transnational family relationship, including to assess the above-mentioned qualified proximity.

Qualified proximity refers to a realistic and actual nexus that is, in principle, the most appropriate to ensure effective access to justice and to protect the beneficiary’s interests. Such a nexus shall refer to a particular point in time, which is sometimes indicated in the relevant treaty (i.e. seisin, marriage celebration, death). Depending on the family law context, derogations from habitual residence may occur when the better placed forum of another State is more appropriate to deal with the case. This is typically the transfer of jurisdiction provided in the field of parental responsibility, which may also affect the applicable law determination, and whose extended operation within the whole international family law area is advocated in this research.

In the family law Hague Conventions and European Union Regulations, habitual residence has been principally endorsed, superseding domicile and nationality. These are, on many occasions, alternative or subsidiary connecting factors. The endorsement of habitual residence is also contained, alternatively or subsidiarily, in some domestic legislations (i.e. China, Dominican Republic, Georgia, Jamaica, Russian Federation, South Korea, Taiwan, United Kingdom) not bound by some or all of the relevant family law treaty objectives. This research examines the national and international operation of habitual residence, with the primary objective of the study being to support its treaty-based implementation. In this regard, the research findings show that in some national legal orders, habitual residence operates in a similar way as in the international setting (i.e. Canada, Germany, Spain, United Kingdom), as opposed to others where its domestic interpretation may differ from the international practice (i.e. Argentina, Russian Federation, South Africa, Switzerland).

The interplay of habitual residence with modern connecting factors, such as mere presence and closest connection, reflects the important need to face increasing migration issues, in particular concerning asylum seekers and refugees whose habitual residence can hardly be established. In its absence, recourse should in principle be made to closest connection and, subsidiarily, mere presence.

With respect to closest connection, whose lack of harmonised guidance is also noticed, this study suggests a uniform interpretation indicated by prospective acclimatization. The latter should apply only in the absence of habitual residence, in order to avoid overlaps between the two factual notions, each of which determining a ‘closest connection’.

To acquire habitual nature, each individual’s residence should be characterised by specific decisive elements. Such elements should be assessed at an appreciable period, which is often missing in the relevant family law treaties. These elements should be found in the comparative case law analysis applicable to analogous family contexts. Complementary, non-decisive, elements may circumstantially support the habitual residence assessment. These two factual steps represent the two-fold test approach implemented in this research.

Ultimately, when dealing with interconnected family contexts involving both children and adults, recourse should be made to an intradisciplinary uniform family law approach – a family habitual residence. In practice, specific decisive or non-decisive elements would commonly apply for both the child’s and the adult’s habitual residence determination.

When the habitual residence determination proves complex, tie-breaker rules should operate in order to solve potential conflicts of jurisdiction and laws. These are: (i) the principal habitual residence of the individual(s) founded on personal interests; and (ii) the continuing physical presence of the individual(s) as an essential prerequisite of habitual residence.

A complex determination of habitual residence may require the intervention of super partes entities based on the beneficiaries’ agreement or an established international power. This approach should be tailored considering the family context at stake. Reference is especially made to the potential role of family arbitration and the CJEU mandate, particularly in the fields of divorce, property regimes and successions. With regard to the protection of children and incapacitated adults, the activities of the UN Committee on the Rights of the Child and the UN Committee on the Rights of Persons with Disabilities are duly examined.

Overall, this thesis supports the recourse to habitual residence in international family law as an inter-country concept, which is old in its origins and modern in its objectives. Habitual residence is adaptable and flexible when considering each family context. It is actual and close when determining the realistic nexus with justice. It should be uniform when applicable to analogous family relationships. This thesis generally advocates for a harmonised beneficiary-centred approach, ensuring predictability, certainty and continuity in international family law, as well as “assisting the prompt and efficient progress of cases” (cit. Sir James Munby).

The possible transnational conflicting operation of habitual residence, affecting people’s interests and rights in similar family contexts, does not rely on the absence or presence of an international legal definition, but on the lack of uniform factual guidance. A uniform fact-based determination, life adapted, is therefore required for the most effective and efficient use of habitual residence. This would be more compatible with the founding objectives and characteristics of habitual residence, unlike a legalistic approach. In this sense, an international handbook should be conceived at the Hague Conference on Private International Law, with the support of other entities such as the UN Committee on the Rights of the Child, the UN Committee on the Rights of Persons with Disabilities, the European Commission (DG Justice) and the Council of Europe (Committee on Legal Co-operation), in order to establish a guide applicable to the various family law instruments adopting habitual residence.