Domicile and habitual residence
Produced in partnership with David Salter, deputy High Court judge and Recorder
Domicile and habitual residence

The following Family practice note produced in partnership with David Salter, deputy High Court judge and Recorder provides comprehensive and up to date legal information covering:

  • Domicile and habitual residence
  • Procedure
  • Domicile
  • Domicile of origin
  • Domicile of choice
  • Domicile of dependence
  • Additional guidance
  • Habitual residence—general approach
  • Habitual residence—divorce, separation and annulment
  • Habitual residence of a child

11pm (GMT) on 31 December 2020 marked the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements came to an end and significant changes took effect across the UK’s legal regime. This has implications for practitioners considering which courts have jurisdiction to determine a dispute. For guidance, see Practice Notes: Brexit and family law, What does IP completion day mean for family law? and Brexit—jurisdiction and family proceedings.

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.

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

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