Report No. 65
VIII. Habitual Residence
2.30. Habitual residence.-
"Habitual residence" is a more precise ground than residence, and requires to be considered at some length.
The expression "habitual residence" was first employed internationally1 as long ago as 1902.2 The concept has also been employed in Convention sponsored by the League of Nations, the United Nations and the Council of Europe. In the Nottebohm case, (Second Phase) 1955 ICI Rep 4 (22) the International Court of Justice stressed the importance of habitual residence, where the question was whether the State of Liechtenstein could confer nationality on a person habitually resident in Guatemala.
1. Hague Convention on Guardianship, (June 12, 1902), Article 2.
2. See K. Lipstein The Tenth Session of the Hague Conference on private International Law, (1965), Camb 1_,J 224, 225, n. 3.
2.32. English provision.-
"Habitual residence" has been employed in English statutes relating to succession,1 adoption,2 contrast3 and divorce and legal separation.4-5-6
The limits of the concept have been explored academically.7
1. Section 1, Wills Act, 1963, section 1.
2. Section 11(1) Adoption Act, 1968, [following Hague Convention on Adoption, 1964, Articles 1, 2(b)].
3. Section 7(1), Supply of Goods (Implied Terms) Act, 1973.
4. (a) Section 3(1)(a), Recognition of Divorces and Legal Separation Act, 1971 (following Hague Convention on Recognition, 1969, Article 2); (b) Domicile and Matrimonial Proceedings Act, 1973, section 5(2).
5. Para. 2.33, infra.
6. See also Administration of Justice Act, 1956, sections 3(8) and 4(1)(a).
7. (a) R.H. Graveson The Conflict of Laws, (6th Edn., 1909), pp. 195, 512;
(b) K. Lipstein in (1965) Camb LJ 224 (225-227);
(c) J. Porn The Adoption Act, 1968 and the Conflict of lazes, (1973), 22 I.C.L.Q. 109, 134-136;
(d) J.D. McClean and K.W. Patchett English Jurisdiction in Adoption, (1970), 19 I.C.L.Q. 1, 14-16.
2.33. Recent case.-
With reference to this expression (habitual residence) as used in the Recognition of Divorces etc. Act, 1971, section 3(1)(a), the judgment of Lane J. in Kruse v. Chittum, (1974) 2 All ER 940 (942, 943) is of interest. We shall discuss it later.1
The judgment in lndyka v. Indyka, (1969) 1 AC 33 (HL) may also be seen as establishing a possible test of habitual residence. There, "Each of their Lordships expresses much the same broad view of what should be the new recognition rule, although stating it in quite different terms," as was observed by Ormrod J. in Angelo v. Angelo, (1968) 1 WLR 401 (403).
1. Pam. 2.34, infra.
2.34. In Kruse v. Chittum, (1974) 2 All ER 940 (942, 943) Lane, J. accepted the formulation by counsel of certain features of habitual residence with reference to the Act of 1971. They were as follows:
(i) Habitual residence indicates "a quality of residence rather than period of residence".
(ii) "Habitual residence" is similar to the residence normally required as part of "domicile", although in habitual residence there is no need for the element of animus which is necessary in domicile.
(iii) The phrase in the Mississippi decree in the case, (which was in issue) that residence was "actual and bona fide," really defines habitual in this context, and denotes "a regular physical presence which must endure for some time."
(iv) Some characteristics of residence negate the possibility of its being habitual-for example, if it is of "a temporary or a secondary nature".
(v) "Habitual residence requires an element of intention, an intention to reside."
(vi) Ordinary residence is different from habitual residence, "in that the latter is something more than the former".
With respect, it may be stated that some of these propositions may require further consideration-particularly, the last one.
2.35. Habitual residence may coincide with other criterion.-
The criterion of habitual residence may sometimes coincide with other criteria. An example, though not from the field of matrimonial law, may be cited. In Attaullah v. Attaullah, AIR 1953 Cal 530 (533) (per R.P. Mookerjee, J.) in the context of the position of inhabitants of coded territories, it was observed by the Calcutta High Court:-
"In some cases, therefore, an option is stipulated in favour of the inhabitants of the ceded territory and thus avert the charge that inhabitants are handed over to a now sovereign against their will.
"The terms of option may vary from case to case, but the general principle applied has been that a person habitually resident1 in a ceded territory acquires 'ipso facto' the nationality of the State to which the territory has been transferred, and loses the nationality of the ceding State" (page 506-Oppenheim).
"From the principle referred to above, it will be significant that a person habitually resident2 within a particular ceded territory acquires 'ipso facto' as a result of the cession, the nationality of the State to which the territory is transferred."
1. Emphasis supplied.
2. Emphasis supplied.