Establishing Domicile and Habitual Residence Status
Domicile and habitual residence are legal concepts that are undefined and subject to case law. Whether someone is domiciled or habitually resident in the United Kingdom (UK) will depend upon all the circumstances and facts of an indi
vidualcase. Wherever there is an issue about the domicile and habitual residence status of an individual, they should seek their own independent legal advice. The adoption agency may also wish to seek legal advice.
A person is domiciled in the country in which they either have or are deemed to have their permanent home. In law, everyone must have a domicile, and can only have one domicile at any time. A person receives at birth a domicile of origin which remains their domicile, wherever they go, unless and until they acquire a new domicile (a domicile of choice). A person may acquire a domicile of choice by residing in a country other than their domicile of origin with the intention of continuing to reside there indefinitely. The intention that must be shown is the quality of residence. It is not sufficient for there to be an intention to reside in a country for a fixed period of time or until some clearly foreseen and reasonably anticipated event happens.
Whether or not a person is habitually resident in the UK will depend on the circumstances of their particular case and all facts must be considered. Habitual residence will not solely be determined by the place where a person is living at the time. The term indicates the quality of residence rather than mere duration and requires an element of intention. The term suggests that personal presence must continue for some time. Many factors must be taken into account, including
bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, and “durable ties” with the country.
There is no requisite period of residence. Someone who leaves the UK in order to take up employment elsewhere may acquire habitual residence in another country and retain habitual residence in the British Islands because of the type of links they have maintained. It is also possible to be habitually resident in two countries at the same time. Factors such as possession of a property, type of employment contract, financial arrangements and location of bank accounts, and local connections are just some of the many factors that may be relevant to any question relating to habitual residence.
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