LAW

Law

Law

Introduction

The Law Reform Commission was established by the Law Reform Commission Act 1975 as a statutory body corporate to keep the law of the State under review and, in accordance with the provisions of the Act, to undertake examinations and conduct research with a view to reforming the law and to formulate proposals for law reform. The Act also provides that, at the request of the Attorney General, the Commission is to undertake an examination of, and conduct research in relation to, any particular branch or matter of law whether or not such branch or matter is included in any programme for examination of certain branches of the law with a view to their reform submitted by the Commission and approved of by the Government. If the Commission is so requested by the Attorney General, then it is to formulate and submit to him proposals for reform of the particular branches or matters of law submitted. (See section 4 of the 1975 Act and the First Programme of the Commission (December 1976) (Prl. 5984)).

Discussion

Habitual residence has a central role as a connecting factor in the new Brussels IIbis Regulation, which unifies the rules of jurisdiction and recognition and enforcement of judgments in relation to matrimonial causes and parental responsibility. It also creates a remedy for international child abduction across internal EU borders. Habitual residence is a concept already utilised in EC law in relation to the social security co-ordination regime. The interpretation given to habitual residence in this context has focussed on the individual's intentions. This article argues that this definition of habitual residence is inappropriate for use under Brussels IIbis, especially in relation to children. This is demonstrated by an examination of the terms of Brussels IIbis, itself. A period of actual residence should be required for habitual residence to ensure more than a tenuous connection between the individual and the State where the case is heard.

The habitual residence of a person is sometimes relevant to the question of whether a particular court has the jurisdiction to deal with a person's divorce.

That is certainly the case when considering divorce proceedings being brought in England and Wales or in other contracting states of the Brussels II Convention (see Brussels II).

Habitual residence (as with domicile) can also be relevant to a person's tax status in England and other countries and so it is often important to have an eye on the possible tax consequences of suggesting a person is habitually resident in a particular country.

In English law, habitual residence refers to a person's abode in a particular place or country which the person has adopted voluntarily and for settled purposes.

A person can be habitually resident in a particular country or state for short or longer periods of time. This could depend on, for example, the duration of a contract of employment. An important factor is for the person to have a sufficient degree of continuity in place in order to be described as ...