Domicile and Habitual Residence
3.1 Definition of Domicile and Conflict of Domiciles
Domicile is an important term in law,especially in private international law,which is not only a basis of jurisdiction but also the basis of the choice of law rule operating in the characterization framework to define a person’s status,capacity and rights.Sometimes,domicile may serve as a test to determine whether a case involves foreign elements or not.The international term for this as a connecting factor is the lex domicilii,i.e.,the law of the domicile.
Domicile refers to a person’s true,fixed,principal,and permanent home,to which that person intends to return and remain even though currently residing elsewhere.From the perspective of comparative law,there are normally three kinds of domiciles: domicile of origin,domicile of choice,and domicile by operation of law.
Domicile of origin refers to the domicile assigned by law to a child when he was born.The domicile of origin can be replaced either by a domicile of choice or by a domicile by operation of law.
Domicile of choice is the domicile which any independent person can acquire for himself by a combination of residence and intention.Thus,its acquisition requires three factors: capacity,residence and intention.That is to say,in the first place,persons under disability,such as infants and lunatics are not able to acquire a domicile of their own.Second,residence constitutes a basis of a domicile of choice.Residence may be defined as habitual physical presence in a place.It is more than sojourn (physical presence) and less than domicile.It is a purely factual conception and requires no legal capacity.A minor can acquire a residence different from his parents’.Furthermore,residence requires presence merely,while domicile presupposes the intention of indefinite residence.The intention of permanent residence presupposes and includes that of permanent abandonment of the old domicile.Therefore,the notion of domicile of choice can be explained in two principal respects: in the first place,in order to acquire a domicile of choice in a country a person must intend to reside in it permanently or indefinitely; secondly,there is evidence of permanent or indefinite residence.
Domicile by operation of law is also called domicile of dependency,which means that the domicile of dependent persons (minor and mentally disordered persons) is dependent on,and usually changes with,the domicile of someone else,e.g.,the parents of a child.
Though the notion of domicile is common to almost all legal systems; different systems have different ways of determining domicile.For instance,under English law there are four general principles applicable to domicile: first,no person can be without a domicile; second,no person can at the same time have more than one domicile,at any rate for the same purpose; third,an existing domicile is presumed to continue until it is proved that a new domicile has been acquired; last but not least,for the purpose of a rule of the conflict of laws,domicile means domicile in the English sense.The question where a person is domiciled is determined solely in accordance with English law.However,the dogmas that every person must have a domicile,and that no person can have more than one domicile at a time have been discarded in the German Code as contrary to the realities of life.
It should be noted that Chinese law is quite different from the laws of other countries in the provisions of domicile.Under Article 25 of the Civil Code,the domicile of a natural person shall be his or her residence recorded in the household registration (“huji”) or in any other valid identity registration.“Huji” or “hukou” is a unique term used in China,which is usually translated as “household registration.”[6]A household registration record officially identifies a person as a resident of an area and includes identifying information such as the name of the person,date of birth,the names of parents,and name of spouse,if married.[7]Since “huji”,a purely Chinese definition,serves as a test to determine domicile in China,it is inevitable that Chinese law is different from the laws of foreign countries in determining domicile.
In this light,it is conceivable that the conflict of domiciles occurs necessarily.As domicile is an important contact to determine the applicable law of a person’s status,capacity and rights,it is of particular relevance to provide proper solutions to the conflict of domiciles.
3.2 Solutions to Conflict of Domiciles
Similar to conflict of nationalities,conflict of domiciles can also be classified into two categories: positive conflict and negative conflict.Positive conflict connotes that a person has more than one domicile simultaneously whose solutions depend on the specific situations as follows: first,a person who has simultaneously a domicile in the state of the forum and one or more in some other state(s) is usually considered to be a domiciliary of the state of forum exclusively,his additional foreign domicile being disregarded; second,where a person has acquired two or more domiciles at the same time which are located in foreign countries,the domicile with which he is most closely connected shall be determinative for purposes of the applicable law; third,where a person has acquired two or more domiciles successively which are located in foreign countries,the last acquired domicile usually prevails.
Negative conflict of domiciles,on the other hand,refers to the situation where a person has no legally recognized domicile.This may arise out of the different requirements imposed by the laws of different countries on the acquisition of a domicile,or the abandonment of an old domicile before the acquisition of a new one.Generally speaking,two approaches are resorted to solving this kind of conflict.First,residence or habitual residence is presumed to take the place of the domicile.In case of the absence of residence or habitual residence,the place where the person in question is located at present is determinative for purposes of the applicable law.Second,the last domicile which the person in question once had is decisive.
3.3 Habitual Residence
The Hague Conference on Private International Law chooses the phrase “habitual residence” to define the connection between an individual and a jurisdiction,in place of the common law concept of “domicile.” Habitual residence has the advantage of apparent objectivity in that it does not focus on intent,a concept easily manipulated by all concerned.In other words,habitual residence is less demanding than domicile and the focus is more on past experience rather than future intention.There is normally only one habitual residence where the individual usually resides and routinely returns to after visiting other places.It is the geographical place considered “home” for a reasonably significant period of time.
Since habitual residence is a test of fact,it cannot be a purely legal concept and there are different views about the factual situations which it is supposed to denote.Some authors believe that the sole criterion of the test of habitual residence should be purely objective,seeking evidence of physical presence over a considerable period of time.Others assert that the test should be of both objective and subjective elements: the factum or physical presence in a given place and the animus to continue to stay there.(https://www.daowen.com)
The Hague Conference on Private International Law has deliberately refrained from offering a definition so that the concept may be flexible and adaptable to practical requirements.Thus,habitual residence may be interpreted differently in different conflict situations.However,the core of the test will tend to be based on evidence of a long-term stay accompanied by other evidence of the individual’s personal and professional life to demonstrate the continuity of the connection between that person and the place of residence.To that extent,the intention of the individual may have some weight.
But it may be difficult to determine where a person has a habitual residence if he is constantly on the move and has no real or continuing connection with any of the countries through which he passed.This could be resolved by reference to the individual’s intention,but although the test of intention is well-defined in the case law for the purposes of domicile,there is no consensus of the strength of intention that would have to be shown to establish “habit.” Similarly,there is no consensus on the length of time a person should have a home for it to become habitual.
In some countries,the legislature has produced a test.In Canada,the Domicile and Habitual Residence Act for Manitoba abolished the common law test of domicile and substituted in s8:
(1) The domicile and habitual residence of each person is in the state and a subdivision thereof in which that person’s principal home is situated and in which that person intends to reside.
(2) For the purposes of subsection (1),unless a contrary intention is shown,a person is presumed to intend to reside indefinitely in the state and subdivision thereof in which that person’s principal home is situated.
3.4 Chinese Law
As introduced above,the definition of domicile under Chinese law is quite unique,which uses “huji” as the test to determine domicile.Furthermore,if a person’s habitual residence is different from his domicile,the former shall be regarded as his domicile.This is presumed in Article 25 of the Civil Code,which gives priority to the place of habitual residence.18
It merits particularly strong emphasis that habitual residence,rather than nationality,is established by the Conflicts Act of 2010 as the principal connecting factor to determine personal status,family law and succession law.In the author’s opinion,there are three reasons for China to deviate from the orthodox position of civil law.
First,in a globalised world where human affairs freely cross national boundaries,the connection between a person and his nationality is not as close as it used to be.
Second,and more importantly,lawsuits are usually brought where parties live,the nexus of habitual residence favors application of the lex fori,whereas reliance on the lex patriae tends to increase foreign law problems; that is to say,as in most foreign-related civil cases that Chinese People’s Courts hear,the parties have habitual residences in China; switching to establishing habitual residence as the principal connecting factor can,therefore,increase application of the lex fori,which is in conformity with the interests of the forum.
Third,China comprises more than one jurisdiction,under the model of “One Country,Two Systems”; Hong Kong and Macao possess the status of “Special Administrative Regions”,which exercise a “high degree of autonomy” and enjoy independent executive,legislative and judicial power.As a result,there are actually three legal systems that now exist concurrently in China.Hong Kong still retains the common law system inherited as a former British colony,and Macao employs a legal system based on that of Portuguese civil law.Within such a setting,nationality cannot determine the internal law to which a Chinese national is subject.
Notwithstanding the vital importance of habitual residence,the Conflicts Act fails to provide a definition of this term which will inevitably pose difficulties for judges when they apply the articles containing this connecting factor.Therefore,Supreme People’s Court defines habitual residence in the Judicial Interpretation (I) of the Act,which provides in Article 15 that the habitual residence of a natural person requires the following factors: (i) he/she has resided there continuously for more than one year at the time of the creation,variation or termination of the relevant foreign-related civil relationship,(ii) he/she has regarded this place as the center of his/her life,and (iii) the place where he/she has resided because of hospitalization,under a labour dispatch arrangement,on business,or for other reasons,shall not be deemed as his/her habitual residence.
The above article is devoted to providing judges with a relatively objective test to determine the habitual residence of a natural person; given the key role of habitual residence within the Chinese private international law system,the author submits that the importance of Article 15 cannot be overestimated.
Nonetheless,there is one particular issue worthy of discussion.Under Article 15,continuous residence for one year is needed for acquisition of a habitual residence in China.Though this requirement per se is not problematic,how to interpret “continuous” residence is by no means an easy task.In the 21st century,there are a large number of “global citizens” who reside in more than one jurisdiction and have more than one center of life,especially common in Guangdong Province of China bordering Hong Kong and Macao.As a result of the economic integration and spatial adjacency,thousands of Hong Kong and Macao residents choose to settle in Guangdong Province.While residing permanently and establishing center of life there,these people return to Hong Kong or Macao regularly either for family union or for other reasons.In such a circumstance,whether the requirement for “continuous” residence for one year is satisfied under Article 15 is open to doubt.In this light,future decisions rendered by relevant local People’s Courts in are particularly noteworthy.19