Residence, habitual – Comprehensive legal overview
Significance and distinction of habitual residence
The term “habitual residence” is of central importance in various areas of law. It regularly denotes a person’s center of life and serves to determine personal points of connection in national and international law. In contrast to mere “residence,” which also includes short-term or tourist stays, habitual residence requires the existence of a stable and permanent center of life.
History of the term and definitions
Statutory basis in Germany
In German law, habitual residence is not defined uniformly. Relevant definitions of the term can be found in various statutes, for example in the German Civil Code (BGB) (§ 7 section 1 BGB), the Fiscal Code (§ 8 AO), as well as in the Residence Act (§ 30 section 3 AufenthG). According to settled case law, habitual residence is the place where a person stays under circumstances indicating that they are not merely temporarily present there.
Distinction from other types of residence
Habitual residence is distinct from “domicile” (§ 7 BGB), which depends on registration with the authorities and an actual place of residence, as well as from certain case-specific interpretations of habitual residence, which are assessed independently of formal criteria. Mere presence is generally insufficient; the criterion of permanence is central.
Requirements for habitual residence
Objective element: Actual stay
It is essential that the person concerned is physically present at the relevant location. For habitual residence, the spatial and temporal circumstances must suggest that the center of life is located at this place. The duration alone is not decisive; even shorter periods may constitute habitual residence if the circumstances warrant it.
Subjective element: Intention
In addition to the objective criterion, the case law considers the intention to live at this place for a certain period. Short-term, purely tourist, or temporary stays are not sufficient; nor is a stay enforced by coercion (e.g., in a hospital or prison). What matters is the demonstrable lasting connection of the person with the place, for example through family, work, or further social ties.
Temporal aspect and minimum duration
The period after which a stay is considered habitual is not uniformly regulated by law. A commonly used rule of thumb is a period of six months; however, special circumstances can lead to different assessments. An interrupted absence of up to six months does not usually exclude the continuation of an already established habitual residence.
Legal significance of habitual residence
International jurisdiction and conflict of laws
In private international law (PIL), in particular pursuant to Art. 3 Brussels IIa Regulation (and subsequently Brussels IIb Regulation) as well as the Hague Child Protection Convention (HCCH 1996), habitual residence is the central connecting factor for determining competent courts and the applicable law. Especially in family law – for example, in matters of custody, maintenance, marriage, and divorce – habitual residence determines the applicable law.
Relevance in family law
In family law, habitual residence is often used to determine the competent courts and the law to be applied, for example in international divorce law, custody and visitation rights, or adoption law. Claims under social and child benefit laws are also regularly linked to habitual residence.
Social law and immigration law
In social law, habitual residence is a prerequisite for entitlement to many benefits, e.g. under the Social Code (SGB). In immigration law, habitual residence is a requirement or precondition for the granting of certain residence permits and settlement permits. According to § 8 AO, habitual residence is also relevant for tax classification (unlimited tax liability).
Proof and evidentiary requirements
Determination by authorities and courts
Habitual residence must be determined on a case-by-case basis. Registration certificates, rental agreements, employment contracts, school enrollment certificates, or family ties may be used as evidence. In case of dispute, it is up to the person concerned to present the relevant facts.
European and international aspects
European Union
Under EU law, the concept of habitual residence is also central. The European Commission has issued various guidelines on this, e.g., for the coordination of social security systems and the free movement of persons within the EU. Interpretation is based on the recitals and objectives of the respective regulations and directives.
International agreements
International treaties, such as the Hague Child Protection Convention, are also linked to habitual residence. Differences may arise in details and in the interpretation by the respective contracting states.
Special considerations in minors’ law
Residence determination for children
For minor children, habitual residence is primarily determined by the child’s actual center of life with a person having parental responsibility. In the case of separated or divorced parents as well as international moves, it must be examined whether there has in fact been a change in habitual residence. The concrete living circumstances of the child are decisive.
Loss, change, and continuation of habitual residence
Habitual residence may be relinquished through a conscious relocation of the center of life. However, habitual residence at the previous place generally only ends with the establishment of a new habitual residence elsewhere; mere absence without establishing a new habitual residence is not sufficient for loss.
Distinction from other forms of residence
In addition to habitual residence and domicile, the law recognizes various other forms of stay, including:
- Temporary stay: Presence for a limited time without the intention to establish a center of life.
- Center of vital interests: Particularly relevant in tax law, where an even stronger connection is required than for habitual residence.
Literature and case law
The interpretation and application of the concept of habitual residence is regularly a subject of highest court decisions, for example by the Federal Court of Justice (BGH), the Federal Constitutional Court (BVerfG), and the European Court of Justice (ECJ). Detailed commentaries can be found in standard works on civil law, private international law, as well as immigration and social law.
Summary: Habitual residence is a key legal connecting factor with far-reaching consequences for jurisdiction, the application of law, and preconditions for claims across numerous areas of law. Its determination requires a comprehensive individual assessment, taking into account objective and subjective criteria of a person’s connection to a place. The diverse statutory and international regulations emphasize the high practical and theoretical significance of the concept in the legal system.
Frequently Asked Questions
Is official registration at the domicile a mandatory requirement for habitual residence?
From a legal perspective, official registration at the domicile is not strictly necessary to establish habitual residence. Although under German registration law there is an obligation to register one’s domicile with the relevant authority, for the assessment of habitual residence in many areas of law (e.g. tax law, social law) the actual circumstances are decisive. What matters are in particular the intention to stay permanently or for a certain, not merely temporary, period at one place, and the actual implementation of that stay. Registration may serve as an indicator for establishing habitual residence but is not a constitutive requirement. If registration is missing despite actual habitual residence, this may result in administrative fines, but generally does not affect the legal assessment of the residence status.
How is habitual residence determined in international tax law?
In international tax law, habitual residence is of central importance for determining unlimited tax liability. According to § 9 of the Fiscal Code (AO), a natural person is deemed habitually resident in Germany if they are present in Germany not merely temporarily, but under circumstances indicating that this is the center of their life. The period for a stay that is not merely temporary is generally set at more than six months, whereby short interruptions, such as for holidays or business trips, are disregarded. What matters is not only the intention for permanent settlement, but the objective living circumstances, such as rental of an apartment, family reunification, or taking up employment. Simultaneous habitual residence in several countries is generally excluded; there is only one habitual residence at any given time.
What significance does habitual residence have for parental custody and family law?
In family law, habitual residence plays an essential role, particularly regarding the international jurisdiction of German courts and the application of German law, e.g. in divorce, custody, or visitation proceedings. According to the Brussels IIb Regulation (EU 2019/1111), the court of the country in which the child has habitual residence is generally competent for proceedings on parental responsibility. The decisive factor is where the child’s center of life is, such as actual ties, caretakers, school, or kindergarten. The determination is made by considering all circumstances of the individual case. A change of domicile or obtaining a new habitual residence can directly affect court jurisdiction and the law to be applied.
How does habitual residence change in case of long stays abroad?
A prolonged stay abroad can lead to giving up a previous habitual residence and establishing a new one, provided that the stay is not merely temporary, but intended for a certain period and with the corresponding intention. In legal terms, this is referred to as a change of residence. This applies regardless of formal procedures such as deregistration from the German residence register. Decisive are objective circumstances such as obtaining a place of residence, taking up employment or integration into the social environment of the new country. If the stay abroad is time-limited and there is an intention to return, or if significant family, professional, or economic ties to the previous place are maintained, habitual residence will often remain in the home country.
Can a person have habitual residence in several places at once?
Legally, it is not possible to establish habitual residence in several places at the same time. Habitual residence is always determined with reference to a person’s center of life. Especially in tax, social, and immigration law, a clear attribution must be made. If a person has several residences, for example in Germany and abroad, what matters is where the center of life is – i.e., where personal relationships, professional activities, and social involvement are primarily concentrated. In case of doubt, the overall circumstances must be evaluated; objective criteria are always decisive.
What role does the intention to stay play in establishing habitual residence?
The intention to stay is a central element in determining habitual residence, but is not sufficient on its own. There must be an actual stay that goes beyond a temporary period and exists under circumstances indicating a certain duration. Subjectively, there must be a will for more permanent settlement; objectively, the living circumstances must support this, for example by a long-term apartment, employment, or family reunification. Short stays, such as holidays or temporary business trips, even if repeated, typically do not establish habitual residence.
What are the legal consequences of determining habitual residence?
The determination of habitual residence has wide-reaching consequences in many areas of law. In tax law, it determines unlimited tax liability; in social and family law, it affects jurisdiction and preconditions for entitlement to social benefits or child benefit; and in immigration law, it partly determines the legal status of foreign nationals. Habitual residence is also a key connecting factor for international legal assistance, name law, social insurance, and certain government benefits. Attribution can lead to different legal obligations and rights, and is therefore often the subject of court proceedings.
