Domicile and habitual residence
Produced in partnership with David Salter of Mills & Reeve
Domicile and habitual residence

The following Family guidance note Produced in partnership with David Salter of Mills & Reeve provides comprehensive and up to date legal information covering:

  • Domicile and habitual residence
  • Procedure
  • Domicile
  • Habitual residence—general approach
  • Habitual residence—divorce, separation and annulment
  • Habitual residence of a child

This Practice Note is impacted by the exit of the UK from the EU on 31 January 2020. This has implications for practitioners considering which courts have jurisdiction to determine a dispute. For guidance, see Practice Note: Brexit and family law. This Practice Note sets out the current position on domicile and habitual residence.

There are significant differences between domicile and habitual residence—habitual residence is generally a question of fact, whereas domicile is a legal concept. There are also differences in the courts' approach to the domicile and habitual residence of adults and that of children, see Practice Note: Jurisdictional issues in children proceedings.

Where, unusually, an individual has no domicile, or their domicile is unknown, the Court of Justice of the European Union has found that jurisdiction should be extended to the individual’s last known domicile.

Procedure

The issue of the court's jurisdiction should be addressed at the outset of the proceedings and dealt with in a procedurally appropriate manner. In Re F (A Child): (Care proceedings: Habitual residence), the Court of Appeal gave the following guidance as to the appropriate procedural steps to be taken:

  1. the form of the order is important—while it is possible to make an interim declaration, a declaration made on a without notice application is valueless, potentially misleading and should accordingly never be granted

  2. if it is