Domicile (law)

The habitual residence of a person is a legal term that describes a real relationship. The habitual residence is starting point for numerous legal consequences, such as tort, in law or conflict in family law.

The habitual residence at the European level

The habitual residence of a person is given after the Rule No. 9 of the Committee of Ministers of the Council of Europe ( 72) I of 18 January 1972 on the harmonization of the legal concepts of " domicile " and "residence " where the duration and stability of the stay and other circumstances of personal and professional nature show the long term relationship between a person and their stay. After the voluntary establishment of a stay, and the intention of the person concerned to maintain this stay, no prerequisites for the existence of a stay or an ordinary stay. The intentions of a person can, however, in determining whether they have a residence, and the nature of this residence is to be considered. This resolution can be used in the interpretation of the term " ordinary residence" as a decision aid.

The habitual residence in German law

In German law, the habitual residence in numerous regulations is required, such as in Article 5Vorlage. Kind / Maintenance / buzer paragraphs 2 and 3 BGB, § 20, § 606 ZPO, § 98 Section 1 No. 2 to 4 FamFG or § 3 para 1 the Administrative Procedures Act. He usually serves to establish a judicial or administrative jurisdiction or the domestic tax liability. The various functions which has to fulfill the concept of habitual residence, may cause that it is not uniformly understood.

Legal definitions of habitual residence are only included in § 30 paragraph 3 sentence 2 and § 9 SGB I Tax Code (AO). Together, it is said: " The habitual residence has someone there, where he is under circumstances that indicate that he not only temporarily lingers in this place or in that area. " This will be complemented in the tax code by: " The habitual residence in the scope of this Act, a time related stay of more than six months is always and from the beginning to see life; short-term interruptions are not considered. Sentence 2 shall not apply if the residence is used only to visit, recreation, spa or similar private purposes only and does not take more than a year. "

He is motivated by an actual longer and not just temporary stay and specifically where the focus of social contacts, which is to seek so-called life center, especially in familial and professional terms. Decisive criteria for the Federal Court this are the duration and stability of the stay, what is objectively be determined from the actual circumstances.

After socially judicial case-law of the habitual residence predominantly oriented to actual features. The assessment must be conducted in a perspective where a previous prolonged stay may be an indication of the habitual residence. A repatriates may constitute a habitual residence in a transitional residence after administrative jurisdiction, if it is " in the sense of a future stay open until further notice" remains there there.

Also in the tax law is to build on physical characteristics, it is only a natural will, capacity is not required. Anyway, in tax law also justified enforced stay a habitual residence, eg in prison or a hospital accident. Physical presence is required. The habitual residence is terminated when the person no longer remains at the said place and also has not the will to return.

Habitual residence is given hereafter in the place where the employee actually, not only temporarily (eg visit example ), but for a certain duration stays. The place has to be the center of life, the place, therefore, to the stronger professional, family and social ties exist as to any other place. This can also be a nursing home. Regulations Regulatory registration under Land Registration Act is irrelevant, at best an indication. Indifferent is temporary absences, eg, by leave, travel, hospitalization.

A specific time limit for the duration criterion alone does not exist. As a rule of thumb here is of six months. Sufficient especially for minors according to the case, a night spent six months in another state to accept integration into the new social environment within the meaning of the concept of center of existence.

The stay will of the person concerned, or - in the case of minors - even a contrary intention of the guardians is basically irrelevant to the justification of habitual residence. It is used but in certain cases, in addition to determination of habitual residence:

• If a person with a very short length of stay has the will to justify his habitual residence, that is, integration into the social conditions on site, this will be taken into account and leads to the re-establishment of habitual residence. Here, the subjective criterion of residence will helps to compensate for the objective in itself a criterion of duration and to affirm the existence of the exchange center yet. The determination of the stay will be a priority but is made ​​to actual circumstances in order to avoid arbitrary definitions of the person concerned and thus the possibility of a hasty change of habitual residence. In particular, the actual local circumstances may be considered if they are contrary to the will stay here especially if the intended longer-term stay by foreign legal provisions is apparent prohibited ( eg obviously unfounded asylum application ). The subsequent re-establishment of habitual residence by changing the center of existence on the basis of objective criteria of duration and stability ( eg by appropriate timing after years of stay of asylum seekers in Germany ) but is not affected.
• Even when you are temporarily away, no change of usual residence is completed, provided that a return will of the affected individuals. Again, this will return but will in turn determined objectively with the involvement of external circumstances.

By a priori only temporary if applied for a longer stay, no usual place of residence is justified regularly. Also, a longer hospital stay will not cause therefore generally that the clinic leads to the habitual residence of the person concerned instead of the previous flat. This is true but only if the hospital stay is not to be permanent and a return intention. The Karlsruhe Higher Regional Court noted in any case that hospital stays, even if the Supervised would be kept away from his previous life center one or even two years does not mean that the food is on point Klinikort.

Even with a forced by illness, extended stay in a rehab facility this does not lead in any case to a new habitual residence, if an intention to create a new life center, it is not apparent, but social bonds exist at the previous location and not yet are abandoned. This can be demonstrated, for example by intervening shorter stays in their own homes.

It is disputed whether a habitual residence is established by prolonged imprisonment. Boarding stays also lead in any case to no habitual residence when we sleep during school time there.

In contrast, established custodial permanent accommodation even against the will of the person concerned at the place of accommodation habitual residence. This is especially true when it is not evident whether and when the person can ever be dismissed, the dismissal possibility therefore purely abstract and of course especially if a return is entirely excluded. It must also apply this when no other existence midpoint is as the place of imprisonment or other confinement more and it is uncertain whether and where such can be justified in the future. Here also suffices only a short stay, if this is permanent.

Unlike in the tax law, it is possible that several ordinary stays are given simultaneously, even if that may be an exception.

The habitual residence in Austrian law

In Austrian law of habitual residence in § 66 para 2 JN is defined, and is solely depend on factual circumstances, without presupposing an element of will. It is questionable how much time must pass in order to speak of a habitual residence. The Supreme Court spoke in family law decisions of a minimum duration of six months, but is also related to the effects on the jurisdictional competence. A minimum period of stay is namely § 66 JN can not be inferred.

In tort decisions of the Supreme Court has established the existence of an ordinary stay differentiated. Thus, the " habitual residence " on the one hand by the actual length of stay and thereby actually incurred bonds are justified, on the other hand, an ordinary residence by the expected duration of the stay and the expected integration arise. It is clear from the circumstances that a stay is applied to a longer period of time and should be instead of the previous existence means point in the future, the new habitual residence is justified even without the expiration of a corresponding period of time.