Key Habitual Residence Family Law Cases 2021
Hello. Good afternoon everybody very pleased to welcome you to today's session through data law when I'm so after my mood and today I'm going to be speaking to you about habitual residents and domicile in family cases since our exit from the EU. Now this session any split up into two parts as sessions one and two, each one approximately 20 minutes in length. Just to give you that kind of by size information. And what I'm going to be doing then is going through this area of the course of the two sessions. So if you are a family law practitioner and you have got cases where there is that international perspective, whether it's a divorce, whether it's finances and where there's legal issues surrounding Children sometimes, then this is where we need to understand the significance and importance of both domicile and habitual residence species. Of course, crucial when it comes to dealing with matters relating to jurisdiction and also continuing with the proceedings thereafter. So I'm going to be going through these elements with you both domicile and habitual residence which sometimes are not that easy to quantify and understand and to be able to look at their differences, similarities between them. And also of course I'm going to be looking at some of the changes that we've had them as a result of our exit from the EU as from 31 December 2020 to see how that has impacted on understanding of domicile or habitual residence and particularly the jurisdiction issues when you are dealing with family cases. So I'm looking at the laws of November 2021. So what I want to start with them first and foremost is really to try and define these concepts because that will then help us to try and understand how these concepts then have changed in so far as our understanding and approach them since I accent from the Eu. So first of all, most habitual residence now is effectively then is where one is looking to see the place where the parties have become integrated but not necessarily with intention to reside there permanently. There still needs to be an element of settled purpose but not necessarily to intend to reside there permanently. So let me give you this exactly some examples. If you've got a couple who have say come to England for example, England and Wales whereby they were born and bred. Say in spain for example, they were born there, they've lived there, they've got married there and then they decided to come to England for a reasonable period of time but not necessarily permanently become integrated here. There may be renting accommodation, they perhaps studying here for example, but their intention is not to reside here permanently. Then this is where the concept of habitual residence can then be relevant in that regard. And when I go through divorce and financial matters shortly, you'll see that in practice it doesn't cause many major difficulties in major remain petitions or applications that your lodging for divorce and otherwise, because we'll be able to establish jurisdiction based on either domicile or habitual residence in particular. So habitual residents putting it simply is defined as regular, physical presence and during for some time. So if you've got a situation where somebody has entered the UK, for example, on say a visitor's visa for example. And of course that in itself wouldn't be enough to be able to satisfied the habitual residence tests because they are not here, it's officially integrated to become uh here uh on the on the basis of having get settled intention, they are visiting. Hence the term visitor's visa. As if somebody is here on a different type of visa, maybe a study visa work visa for a period of time, then that can enable them to become sufficiently integrated into that country, socioeconomic and economic climate in that regard. So therefore that may then give them habitual residence sort of needs to be this element of being there for an appreciable period of time with the intention of having a degree of settled purpose. And habitual residence is obviously very, very important to establish habitual residence because then it will then regulate certainly in the context of family law matters related to marriage, divorce, dissolution, matters relating to whether the courts of jurisdiction to deal with orders relation to both the marriage, civil partnership, Children or otherwise. How is this different to domicile domicile is attach is a person to a particular legal system. So for purposes of family law anyway, we would be saying that a person is not domiciled in the UK as such, but more so within there's certain countries in the UK. So for purposes of english and welsh. So for example, that would be seen as one legal system for the purposes of domiciles or one is trying to establish whether somebody's domiciled within England Wales. And this is where you're looking to see whether that is that person's permanent home and with the intention to reside there permanently. So it's not simply to be there for settled purpose, but it's in fact the intention to be there permanently in that regard. Now when you think of domicile, we have what's called a domicile of origin. So when you've got a child who is born, if their parents are married at the time of the birth and together, then child will take the domicile of origin of the father. If the parents at the time of the child's birth are unmarried and together, then the child will take the domicile of origin of the mother, then, you know Charles childhood up until the age of 16 day of what's called a domicile of dependency and that will then continue depending on with which child, which parent rather than child continues to reside with. So it depends who may married, living together, then the child will continue to have the domicile of dependency of that or the father, If the parents who may not married and living together and the child is living with them don't be that of the mother. But if the parents were two separate for example and say the child was to live with the mother who is now set a former spouse, then the child would then pick up a domicile dependency of the So it depends with whom the child continues to live. Once he turned 16, you're entitled to have what's called a domicile of choice. And that's governed them by, as I mentioned, your physical presence, your connection, your integration with that country, that legal system, but more significantly your intention to reside there permanently. So it's contra back to this idea of permanence again. All right. So if somebody is there even for a reasonable period of time then that doesn't necessarily mean that thomas are there. The intention must be to reside there permanent. Try not to get domicile mixed up with nationality, nationality is of course a different concept altogether which will often be determined by where the child is born and all sort of position with the parents and that then governs matters related to aspects as to citizens share purse to nationality in terms of all right entry and accept purposes habitual residents now as you say requires regular physical presence and the requirement to be integrated into that country was domicile is more than that. Where yes that require also requires regular physical presence. In most cases with the intention to reside there permanently, you can only be domiciled in any one country at any one time and it's not easy to lose or acquire a domicile necessarily. But with habitual residence you can be habitually resident in more than one country. So it could be that somebody, for example spends six months in any 12-month period in England and any other six months in Spain for example, it is possible subject to the integration, the physical presence and their purpose is to be habitually resident in both countries in that regard at the same time. But when it comes to domicile you can only be domiciled in any one country. So somebody was to leave say England permanently would never to return never to return to England for any purpose other than make visit. Even if even may have decided not to do that, then you could have lost your domicile in the whales. But if you have not decided where you're going to be living permanently, you're spreading yourself between say different countries. Then that's where you haven't acquired a domicile yet, but you have lost the english and welsh domiciled. But because you cannot be without domicile intending one time, what would then happen is if you have lost your english and welsh domicile never to return. For example, then you revert back to your domicile of origin until you acquire a new domicile of choice. All right, so that's how that tends to work. Now of course there have been changes and this is where we need to understand the impact of the fact that we have now left europe and therefore because of that this obviously does have an impact in so far as the position with these concepts and therefore we've got the european Union withdrawal agreement of 2020 years of January 2020. And then we had that transitional period, you'll remember whatever you today enabling us to formally exit from the EU at the end of december 2020 series withdrawal agreement and continued until the end of last year transition period that we had until the end of last year. So what has been the effect of that since our exit from the E. U. Well, this is where then we need to bear in mind as one the first of january this year for new cases than there have been large whether it's for divorce, whether it's finances, whether it's for Children, then there's a replacement of the brussels to revised the B. I. I. R. Which is the european Communities Regulations of 2003, 2003. Ah the muscles to revise as we refer to it. That is then replaced and for cases lodged. That's on the turn of this year With for example in particular various hey conventions and later I'll take you through a convention of 1996 in particular. So when it comes to divorce is for example, the Solutions, divorces, finance applications, we would rely heavily upon section five. Subsection two of the dome missile and metronome proceeds that nineties and three, as amended by the european communities, Matrimonio jurisdiction and judgments or eggs of 2001, which was the Brussels too, Which came into effect like so November 2003. That has now been amended to section five two of the 73 active still prevalent, but it's now in relation to the amendments not by brussels to revise for new cases, but instead body by the exit regulations. And in so far as Children case are concerned, we are relying Upon the Hague Convention 1970, for example, in 1996 convention as our take you through shortly. So just staying with divorces for mount them. So all divorces that were lodged, Those of you who've had divorce cases you have lodged Prior to 31 December 20 20. Those will then continue under the Previous law under the Section 52, as amended by the European Community Reggae of November 2003. So it will still continue under the brussels too, Which basically provides the Article three of these cancer regulation of 2003. Provided that the court would have jurisdiction to deal with the case. So whether it's a divorce nullity separation, judicial separation, the solution of a super partnership if establish any of these factors and either that the court's jurisdiction under cancer regulation or no court or contracting state or jurisdiction under the council regulation. And if it could be shown that the parties to marriage were domiciled in the world on a day when the proceedings were begun. Okay, so you have to show why the cancer regulation applying in terms of what habitual residence all you have to show up both of them. We're domiciled in England Wales on a date when you lodge the proceedings of for all divorces that you've lodged before that date, that will continue to be the case. So what that meant effectively was that when you are and were therefore petitioning for divorce, then you would have to determine and first and foremost to see whether either or both parties then came within the council regulation. And if not, then you're looking to see you can establish that they are both dummies out here in England and Wales and to determine whether it came within the council regulation on that. You would be looking to see them particularly for purposes of divorces lodged here in England World when it came to petitions in England world, habitual residents needed to be established for 12 months before needs to be established for that period of time. So, you we have to demonstrate habitual residence on the basis that the spouses were habitually resident order spouses were last habitually resident, as far as one of them still resides there or the respondent is habitually resident. So you could use any of those in those circumstances. In the case of a joint application. Either the parties or habitually residents, we could use that or the applicant was Habitually resident if he or she resided there for at least one year immediately before the application was made. We could use that Or the applicant was habitually resident if he or she was idea for at least six months immediately preceding the application. And that was either a national looked at member state in question or in the case of the UK and Ireland at their home. Yeah, okay. So if you came under any of those provisions, then that would be sufficient and enable you to then petition based upon habitual residence. That provision has been the case will still apply therefore for divorce is launched before turn of this year. So that will remain as it is. And if it doesn't come with any of these categories, that you would then go on to a second part. And that is if one could establish domicile in England Worlds ah on the day when the pursuing work commenced. But you would have to show that both of the parties were domiciled in England World. So that's the position before the turn of this year. But for new cases the night you from the turn of this year and going forward. How do we deal with this? Well, firstly, many of you will be familiar with the fact that there was a new paper divorce application which came to effect As from 31 December 2020. And I've also put this very useful link here for you about the guidance given by the DF in particularly so far as family law disputes involving EU guidance for legal professionals have a look at that also, which is really really useful. But as you'll be aware, the new divorce petition which came in enabled for change in so far as the position with the changes as a result of our exit from the EU and reference to the EU exit regulations. But also what the petition did is it allowed us to rely upon Seoul domicile cell Either party's domicile as a ground for divorce in terms of jurisdiction was previously if you were relying upon domicile yet to establish and confirm that both parties were domiciled in England and Wales. So brussels to revolve to has been revoked in this of how these new cases large influence the turn of this year's. That's the first thing. And secondly, for cases starting after the end of the transition period, the jurisdiction of the court which are based on brussels to them have been inserted into Section 5 2 of the domicile of Democracy, exact 73 by the jurisdiction and judgments, family amendment etcetera. EU regs as they are referred to. So what that basically means is that for cases that are now being dealt with as from eternal this year, you're still relying upon section 52. But the amendments as a result of EU regulations, which means we still are able to rely upon habitual residents. So that's not changed. You're still able to therefore rely upon the same provisions that we had earlier that either both or habitually resident England House or the respondent is still resident here, wonder party these residents here. So you can still use those provisions that have just referred to these ones. I just take you back to. So either the spouses are virtually resident or spouses last opportunity residents as far as one of them resides here, we'll respond to his opportunity resident here. An event of joint ties with them are Perhapsually resident where you've got a one year immediately before habitual residence sort of six months as long as they are domiciled here as well. So you can use any other dogs. But the other change is that so domicile has been added as a grand for divorce. So like I say, that's the other change that we've had And that was then reflected in the divorce application as from the very one December 2020. Now, as many of you will know, Looking at this course as of November 2021. You know that as from 13 September this Year 2021. It has been mandatory to lodge any application for divorce using the online portal if you're for the applicant for the respondents, there is still choice as to whether they wish to use the portal, whether they wish to do the paper version. And that won't be mandatory. A lot of thought until The divorce dissolution separation act of 2020 comes into effect as at all around six April 2022. But even though you're doing the online divorce petition application, you'll see that under online form. You can see it's obviously making reference to the the position surrounding section 52 of the act as amended by the EU exit. So it's still providing for habitual residence and domicile in so far as that is concerned. So that's still provided for just so you know, it's still possible to still lodge a Other applications through baby seven months has d divorce center, for example, going for dissolution of civil partnership. If you're pursue, engage separation of judicial separation or pursuing analogy. But for divorce is as you know, need to be bloody nose now through the portal. Okay. Thus the position they're in so far as forces are concerned. Now in so far as Children case are concerned, some of you then who will be dealing with Children matters, you'll see that we then need to determine again the issue of habitual residence to then determine whether or not english welsh courts have jurisdiction and that is then still based very much upon the issue of integration into that country's socioeconomic climate and often what you find is the child's habitual residence will often be very much governed by the habitual residence of the parent with whom they continue to are currently residing with. So this case, we are, for example, was one where the nine year old was habitually resident in the UK under under brussels too. And the court said that this was very much a question of fact and degree. So you have to look at during an assessment as to whether the country was a place which reflected some degree of integration by the child and the case of an infant or young child, even their parents in the social and family environment. So, as Children get older, of course, you're looking at their particular circumstances, see how they have or have not integrated into the country's social and family environment. The younger child is, the more you reliant upon d position of parents, given that of course, the child themselves will not be independently in most cases, be making those those decisions in that regard. And on the fax at the court did say that the judge had not reviewed what links remained with Italy on the faculty and the judge had not taken to account all the factual evidence and really what factors weighed against a child remaining habitually resident in Italy on the facts and all of that need to be weighed up to look at the arguments for and against him that because you consider the thinking behind that insofar as that's concerned. And in another case, which looks also at the issue of habitual residence is this used for case of marinus and marinus is 2007 case we're here. The question was, what degree or length of time is needed to show needs to be demonstrated Before one can show they are habitually resident in that particular country. So what length of time needs to be established before we can establish that in a court did refer to the previous case of me jay? Miner, The case of 1990, where the court did say in that case that even though habitual residents could be lost in a single day, it could not be gained in a day because an appreciable period of time had to pass. So you can see people as as I gave the example earlier, sometimes a person may take the view I'm leaving this country and I do not intend to leave return at all sort of sold their house. They've given up the event rental agreement and so forth, have got rid of all the assets, but not with the intention not returning. So that's where it can be lost in a day when they leave that country, but it cannot necessarily be gained in a day because an appreciable period of time to pass. But having said that you do need to look to see what kind of arrangements they made, how much they've planned in so far as the other countries concerned, whether moving to the court did say that where someone is undertaking a planned purposeful and permanent Relocation from one country to another. In fact, there's nothing in the large prevents them acquiring a new official residence almost contemporaneously or virtually contra perennially with the loss of the previous, be sure, residents. Okay, So here without a wife had only been back in England for 24 hours. This son of facts was sufficient for her to acquire a bit your residence. So, for example, if the person then comes to England, for example, and they've been here for a year, if they've already put a lot of the provisions in place have already arranged for where they're going to be living. The border has prevented the body registered with the state institution, their job situation, everything's settled and come here, then there is an argument and they can acquire habitual residence very quickly that in that regard. All right, that's the thinking behind that. So you can see a number of key issues that I've looked at so far surrounding the issue of domicile habitual residence to see how that ties together. Right. So that covers the end of this session and what I'm going to be doing in the second session is I'll be looking at some of the other elements surrounding jurisdiction, particularly at the situation surrounding when Children have got connections with other countries, which countries and his best place to deal with the child's case, whether it should be here, whether it should be elsewhere, particularly when he got local authorities involved in that case. And you're looking to see which country would be best place. And I'll take you through another case, which looked specifically at the issue of a picture residence. Thank you very much indeed for listening, and I speak to you soon. Thank you very much. Bye for now.
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