Jurisdiction: domicile and habitual residence

One of the questions a solicitor will ask their potential new client in the first meeting is to describe their domicile status and where they are habitually resident.

This is an essential question at the start of divorce proceedings, as the English courts do not automatically have the right to deal with a person’s matrimonial affairs, just because that person is a British citizen or because they are in this country.

Below is a brief summary of what, in practice, these two terms mean.

Habitual residence

A person can only be habitually resident in one place at any given time.

Your habitual residence will be where the central interests of your life reside. Determination of habitual residence relies on the specific circumstances of a person’s life. A solicitor will look at various factors, such as where you work, live and return to after business trips or holidays, to establish where you are habitually resident.

There is no requirement that you must have permanent residence in this place – but your residence here must be stable and regular.

Domicile

’Domicile’ is a more complicated matter than habitual residence to determine.

Every individual has a domicile – and can have various domiciles – but can only have one operative domicile at any one time.

An individual’s domicile may change throughout their lives, and they may acquire and lose any one of the three different types of domicile as set out below:

• Domicile of dependence This domicile is relates to children. A child can only acquire independent domicile if the he or she is 16 years old or older, or is married under the age of 16. If younger or unmarried, the child’s domicile will, if the child’s parents are married, follow the domicile of the father, or the child’s mother’s domicile if the parents are unmarried. In the event that the parents separate, the child will acquire the domicile of the parent that they live with.

• Domicile of choice Every individual aged 16 or over may acquire their domicile of choice through residence in a country which is not their domicile of origin (set out below), as long as they have an intention to permanently or indefinitely remain in this country. An individual can prove this intention through their behaviour, and factors such as buying a house in this country, or spending all or the majority of their time in this country. A host of factors will be taken into account when determining the domicile of choice.

• Domicile of origin. This domicile will never be lost. An individual’s domicile will revert to the domicile of origin if the domicile of choice is lost, until a new domicile of choice is acquired. An individual acquires their domicile of origin at birth. When a child is born to married parents it is the father’s domicile. When the parents are unmarried it is the mother’s domicile. Where a child is born is not relevant for domicile purposes.