‘Habitual Residence’ in European Family Law: The Diversity, Coherence and Transparency of a Challenging Notion

Summary

INTRODUCTION

Habitual residence has long been a well-established criterion in private international and international procedural law. But recently, its use in legislative acts in the field of European family law has strongly multiplied and diversified, thus creating new challenges when applying the concept of habitual residence. The following observations provide a little guidance in handling the habitual residence concept in its new leading role.

UBIQUITY OF THE HABITUAL RESIDENCE CONCEPT IN MODERN EUROPEAN FAMILY LAW ACTS

Habitual residence is the predominant or at least a very important criterion in a large number of European family law acts – the Brussels II bis Regulation, the Rome III Regulation, the Maintenance Regulation, the Hague Protocol on Maintenance 2007 and the Draft Marital Property Regulations. It is thus the guiding principle both in jurisdiction and in applicable law in divorce, maintenance and (will probably in the future be in) matrimonial property: for jurisdiction in divorce matters see Art. 3 para. 1(a) nos. 1–6 Brussels II bis Reg., for the applicable law in divorce matters see Art. 5 para. 1(a) and (b) as well as Art. 8(a) and (b) Rome III Reg. For jurisdiction in maintenance matters see Art. 3(a) and (b) as well as Art. 4 para. 1(a) and (c) no. ii Maintenance Reg., for the applicable law see Arts. 3, 4 para. 3, Arts. 5 and 8(b) Hague Protocol 2007. For jurisdiction in matrimonial property see Art. 3 Draft Marital Property Reg. in conjunction with Art. 4 Succession Reg., Art. 4 Draft Marital Property Reg. in conjunction with Art. 3(a) Brussels II bis Reg., Art. 5 para. 1(a) to (c) Draft Property Reg. and for the applicable law Art. 16(a) and (b), Art. 17 para. 1(a) as well as Art. 18(a) Draft Property Reg.

This tendency is very strong in, but is not restricted to, family law. The situation is similar in the Succession Regulation – see especially Art. 4, Art. 13 for jurisdiction and Art. 21 para. 1, Art. 24 para. 1, Art. 25 paras.