A place of settled dwelling which constitutes a person's ordinary residence.
In C v S, the British Court said:
"If he or she leaves ... with a settled intention not to return ... but to take up residence in country B instead, such a person cannot, however, become habitually resident in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so."
In other words, it may take time to establish a habitual residence, but terminating only takes a departure with intent to relocate permanently. In some cases, a new habitual residence could be established in as little as one month.
The term is a pivotal part of the Hague Convention on International Child Abduction which, at Article 4, uses the term but does not define it, as follows:
"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply where the child attains the age of sixteen years."
Legal theorists have opined that the omission on a definition of the term in international law is intentional with the design being to leave the judiciary unhindered by rigidity and free to adapt or adjust their findings to disparate judicial systems, such as a Hague convention matter would be bound to produce.
The habitual residence of a child for example, where their parents live together, would be the residence of the parents.
On this issue, American Courts (eg Feder, see below) have cited and followed a 1989 British case (Re Bates) which stated:
"(T)here must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the (person) intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."
References and resources:
- C v S (1990) 3 WLR 492
- Re F 1992 1 FLR 548 (England)
- Re Bates CA 122-89, High Court of Justice, Family Division, Royal Courts of Justice, United Kingdom, 1989
- Zuker v Andrews 2 F. Supp. 2d 134 United States District Court, Massachusetts 1998.
- Feder v. Evans-Feder 63 F3d 217, United States Court of Appeals, Third Circuit,1995.
- Davis, S. and others, International Child Abduction (London: Sweet & Maxwell, 1993)