RESIDENCE

INTRODUCTION
A residence is a place (normally a building) used as a home or
dwelling, where people reside.

Residence may more specifically refer to:

 Domicile (law), a legal term for residence

 Habitual residence, a civil law term dealing with the status of refugees, and child
abduction
 Residence in English family law, pertaining to where children should live in the case
of disputes
 Residence or residence hall (UK) accommodating college or university students,
known in the US as a dormitory
 Residence, the German term for residence which normally means the city palace of a
noble family
 Tax residence, to determine the location of someone's home for tax purposes

DOMICILE
Domicile is relevant to an individual's "personal law," which includes the law that governs a
person's status and their property. It is independent of a person's nationality. Although a
domicile may change from time to time, a person has only one domicile, or residence, at any
point in their life, no matter what their circumstances. Domicile is distinct from habitual
residence, where there is less focus on future intent.

As domicile is one of the connecting factors ordinarily used in common law legal systems, a
person can never be left without a domicile and a domicile is acquired by everyone at birth.
Generally domicile can be divided into domicile of origin, domicile of choice, and domicile
by operation of law (also known as domicile of dependency). When determining the domicile
of an individual, a court applies its own law and understanding of what domicile is.

In some common-law countries, such as Australia and New Zealand, the concept of domicile
has been subject to statutory reform. Further, under Canada’s Divorce Act, domicile has been
replaced as the basis for which a court in a province has jurisdiction to hear and determine a
divorce proceeding. Instead, "A court in a province has jurisdiction to hear and determine a
divorce proceeding if either spouse has been habitually resident in the province for at least
one year immediately preceding the commencement of the proceeding" . Although domicile
was traditionally known as the most appropriate connecting factor to establish an individual’s
personal law, its significance has declined over the years in common law systems.

In early societies, there was little mobility but, as travel from one state to another developed,
problems emerged: what should happen if different forms of marriage exist, if children
became adults at different ages, etc. One answer is that people must be given a connection to
a legal jurisdiction, like a passport, that they carry with them wherever they go.

Domicile is governed by lex domicilii, as opposed to lex patriae which depends upon
nationality, which is the relationship between an individual and a country. Where the state
and the country are co-extensive, the two may be the same. However:

 Where the country is federated into separate legal systems, citizenship and domicile
will be different. For example, one might have United States citizenship and a
domicile in Kentucky, Canadian citizenship and a domicile in Quebec, or Australian
citizenship and a domicile in Tasmania.
 One can have dual nationality but not more than one domicile at a time. A person may
have a domicile in one state while maintaining nationality in another country.
 Unlike nationality, no person can be without a domicile even if stateless.
 Domicile is distinct from habitual residence where there is much less focus on future
intent. Domicile is being supplanted by habitual residence in international
conventions dealing with conflict of laws and other private law matters.

HABITUAL RESIDENCE
In conflict of laws, habitual residence is the standard used to determine the law which should
be applied to determine a given legal dispute or legal entitlement. It can be contrasted with
the law on domicile, traditionally used in common law jurisdictions to do the same thing.

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.
General principles
There is no internationally agreed upon definition of habitual residence. Even within specific
jurisdictions, many courts have yet to fully define the term. Numerous domestic statutes and
conventions that use habitual residence, such as the Hague Conference on Private
International Law, also do not define the term. This may be to avoid “the rigidity associated
with the alternative concepts of domicile and nationality”. The lack of definition means that
habitual residence is generally left to judicial interpretation by the courts in whichever
jurisdiction uses it as a connecting factor.

Although there is no definition, habitual residence can generally be considered something

less than domicile but something more than simple residence: a midpoint between the two.
Previous definitions suggested that habitual residence required someone to be physically
present in a place for a certain period of time to be considered habitual resident in that place.
However, many scholars and courts have disagreed with this and believe that there are a
number of factors that are to be considered in determining someone's habitual residence;
while the amount of time spent in a given place is one of those factors, it is not determinative.
Other factors that may be relevant depend on the jurisdiction; for example in the European
Union, continuity and durability of the residence are considered in addition to the duration.

Application
Domestically, the use and application of habitual residence depends on which states are
involved in the dispute. Each jurisdiction may use habitual residence in different instances.
Therefore, habitual residence can have a significant impact on a person when it is the sole
factor, or a factor, used to determine which law applies to a particular dispute or issue. A
person's habitual residence could affect marital disputes, land-related disputes, succession,
and other types of disputes or matters, depending on the rules of the states involved.

International Conventions
The concept of habitual residence is used in a number of international conventions, beginning
with the Hague Convention on Civil Procedure of 14 November 1896. Since then it has
become the basis of a number of other conventions either to complement or supplant the
traditional connecting factor of domicile. One example of this is in the Convention on
International Child Abduction, which uses habitual residence throughout to determine the
applicable law in an actual or potential child abduction case.
Comparison with nationality
Habitual residence may also be more discriminating that the test of nationality or lex patriae
in that the connection is to a specific location within a state rather than to the country of
nationality which may contain several subnational jurisdictions (such as states or provinces).
Hence, where a country contains more than one legal system, the residence must determine
which of the several possible laws might apply (e.g. in the United States which of the laws of
the U.S. states is to be applied). A supranational example of this selection process is
contained in Article 19 of the Rome Convention:

States with more than one legal system

Where a State comprises several territorial units each of which has its own rules of law in
respect of contractual obligations, each territorial unit shall be considered as a country for the
purposes of identifying the law applicable under this Convention.

A State within which different territorial units have their own rules of law in respect of
contractual obligations shall not be bound to apply this Convention to conflicts solely
between the laws of such units.

Comparison with domicile

Habitual residence is fact-dependent; it cannot be a purely legal concept and there are
different views about the factual situations that it is supposed to denote. Much of the case law
on habitual residence suggests it is purely objective, seeking evidence of physical presence
over a considerable period of time. However, there is an argument to be made that habitual
residence does have a subjective element like domicile since intention may, at times, be a
factor in considering an individual's habitual residence. This is particularly true if habitual
residence it is considered synonymous with ordinary residence which requires an analysis of
a person's "ordinary mode of living". However, it is not universally accepted that habitual
residence and ordinary residence are the same, making it debatable if habitual residence has
subjective elements like ordinary residence.

In comparison, to establish a domicile of choice, it is necessary to have a clear factual base in

one state and that must be accompanied by an animus semper manendi (Latin: intention to
reside indefinitely) .Although it is not so difficult to produce evidence that an individual has
established a home in a state, it is very difficult to prove that someone has no intention of
ever establishing a home in another state. Therefore, the test for habitual residence is less
demanding without this subjective element of intention. The court focuses on the past
experience of the individual and not so much on future intention.

However, it may be more difficult to determine where a person has a habitual residence if
they are constantly on the move with no real or continuing connection with any of the
countries through which they have passed. This could be resolved by reference to the
individual's intention, which is well-defined in the case law for the purposes of domicile, but
not for the purposes habitual residence.

The subjective element required for domicile is the biggest difference when comparing the
factor with habitual residence. This could be either positive or negative depending on the
situation.

RESIDENCE IN ENGLISH FAMILY LAW

Residence may refer to various parts of English law including taxation, immigration, and
family law. This article deals exclusively with English family law. See residence in English
law for disambiguation.

In family law, the Court can order a Residence Order of the Family Court under section 8 of
The Children Act 1989 following the breakdown of a marriage and determining where the
children are to live and with whom. The order can be sole or joint, and if joint, it can be made
to a couple regardless whether they are married. If a residence order is granted, this
automatically gives him, her, or them parental responsibility for the child(ren) which will
continue until the order terminates (usually this will be until the child(ren) reach their
sixteenth birthday unless there are exceptional circumstances justifying a longer period).

Eligibility
The following can make an application for a Residence Order under section 8 of The
Children Act 1989 as of right:

 the parent or guardian of the child(ren);

  a married stepparent of the child(ren) where the child(ren) lived with the stepparent as
child(ren) of the family;
 anyone with whom the child has lived for at least three years (this period need not
have been continuous but must have been recent).

anyone who:

a) where there is already a Residence Order in place has the consent of every one who holds
that Order, or

b) who has the consent of the local authority where the child is in their care, or

c) has the consent of every one who has parental responsibility for the child.

If an applicant cannot apply for the Order as of right, (e.g. they are wider family members
such as grandparents etc. who wish to seek orders for their grandchildren), they can make an
application to the court seeking leave to issue the application. In deciding whether to grant
leave, the court will consider, amongst other things:

 the nature of the application,

 the applicant's connection with the child, and
 the risk that the proposed application might disrupt the child(ren)'s life to such an
extent that they should be harmed by it.

The welfare principle

As a matter of public policy, the courts have always operated under the doctrine of parens
patriae to make the best interests of any children their first and paramount concern. From
time to time, this doctrine has been included in statutes, the most recent relevant version
being section 1 of The Children Act 1989 which requires the court to consider the "welfare
checklist". Before making a section 8 order (i.e. a residence order) the court must consider:

1. The ascertainable wishes and feelings of each child concerned (considered in light of
his or her age and understanding);
2. His or her physical, emotional and/or educational needs;
3. The likely effect on him or her of any change in the circumstances;
4. His or her age, sex, background and any other characteristics which the court
considers relevant;
 5. Any harm which he or she has suffered or is at risk of suffering;
6. How capable each of his parents and any other person in relation to whom the court
considers the question to be relevant, is of meeting his or her needs;
7. The range of powers available to the court under the Children Act 1989 in the
proceedings in question.

A child is not automatically a party to the proceedings and will be represented by a Guardian
ad litem unless the court considers it necessary. If a Guardian is appointed but the children
and the Guardian do not agree on what recommendations to make to the court and the
children are of sufficient age and understanding, they will be able to instruct a solicitor
directly to represent their views and the Guardian will present an independent view to the
court. Whether or not a Guardian is appointed, the court can request a Welfare Report under
section 7 of The Children Act 1989, either from the local authority where the child currently
resides or from a Children and Family Reporter who is an officer appointed by CAFCASS.
The report will usually inform the court of the child's wishes and feelings, but the officer will
recommend what he or she thinks is in the child's best interests in the circumstances of the
case rather than just advocate the child's wishes.

DORMITORY
A dormitory (originated from the Latin word dormitorium, often abbreviated to dorm) is a
building primarily providing sleeping and residential quarters for large numbers of people
such as boarding school, high school, college or university students. In some countries, it can
also refer to a room containing several beds accommodating people.

Terminology
Broward Hall, at the University of Florida

Dorm and residence hall

The terms "dorm" is often used in the US. However, within the residence life community, the
official term "residence hall" is preferred. According to the University of Oregon, their
facilities "provide not just a place to sleep, but also opportunities for personal and educational
growth. Highly trained Residence Life staff and Hall Government officers support this
objective by creating engaging activities and programs in each hall or complex."

In the UK, the preferred term in the context of student housing is "halls," short for "halls of
residence." In English-speaking Canada, the common term is "residence" or "res" for short.
In Australia the terms "halls of residence" and "halls" are common, but "college" (or, more
formally, "residential college") is also used in the cases of halls of residence that are named
as such (e.g. Robert Menzies College, Trinity College, and Mannix College); residential
colleges commonly have a Christian ethos.

Dormitory, hall of residence, house, hostel and barracks

In United Kingdom usage, the word dormitory means a room containing several beds
accommodating unrelated people.[3] In the United Kingdom, this arrangement exists
typically for pupils at a boarding school, travellers or military personnel, but is almost
entirely unknown for university students.

In United Kingdom usage, a building providing sleeping and residential quarters for large
numbers of people is called a hall of residence (university students), house (members of a
religious community or pupils at a boarding school[4]), hostel (students, workers or
travellers) or barracks (military personnel). In the United Kingdom, halls of residence almost
entirely have single occupancy rooms, are almost always mixed sex, with residents being
allocated to adjacent rooms regardless of sex.

RESIDENZ
Residenz is a German word for "place of living", now obsolete except in the formal sense of
an official residence. A related term, Residenzstadt, denotes a city where a sovereign ruler
resided, therefore carrying a similar meaning as the modern expressions seat of government
or capital. As there were many sovereign (imperially immediate) rulers in the Holy Roman
Empire, ranking from Lord (Herr) to prince elector and king, there are many cities, palaces,
and castles in this territory which used to be a residenz and are partially still so referred to
today. The former residenz status of a city is frequently reflected by the architecture of its
center. During the baroque period especially, many prestigious buildings were erected,
sometimes even new towns were founded. Today, former Residenzstädte mostly still serve as
cultural and administrative centers.

TAX RESIDENCE
The criteria for residence for tax purposes vary considerably from jurisdiction to jurisdiction,
and "residence" can be different for other, non-tax purposes. For individuals, physical
presence in a jurisdiction is the main test. Some jurisdictions also determine residency of an
individual by reference to a variety of other factors, such as the ownership of a home or
availability of accommodation, family, and financial interests. For companies, some
jurisdictions determine the residence of a corporation based on its place of incorporation.
Other jurisdictions determine the residence of a corporation by reference to its place of
management. Some jurisdictions use both a place-of-incorporation test and a place-of-
management test.

Domicile is, in common law jurisdictions, a different legal concept to residence, though the
place of residence and the place of domicile would typically be the same.

In international tax law

Double taxation treaties generally follow the OECD Model Convention.[1] Other relevant
models are the UN Model Convention,[2] in the case of treaties with developing countries
and the US Model Convention,[3] in the case of treaties negotiated by the United States.

OECD and UN Model Convention

The OECD Model Convention and the UN Model Convention are identical. They first
provide for a definition of "resident of a Contracting State":

1. For the purposes of this Convention, the term "resident of a Contracting State" means any
person who, under the laws of that State, is liable to tax therein by reason of his domicile,
residence, place of management or any other criterion of a similar nature, and also includes
that State and any political subdivision or local authority thereof. This term, however, does
not include any person who is liable to tax in that State in respect only of income from
sources in that State or capital situated therein.

The definition is followed by "tie-breaker" rules for individuals and non-individuals, which
result in the person being considered resident in only one of the countries:

2. Where by reason of the provisions of paragraph 1 an individual is a resident of both

Contracting States, then his status shall be determined as follows:
a) he shall be deemed to be a resident only of the State in which he has a permanent home
available to him; if he has a permanent home available to him in both States, he shall be
deemed to be a resident only of the State with which his personal and economic relations are
closer (centre of vital interests);

b) if the State in which he has his centre of vital interests cannot be determined, or if he has
not a permanent home available to him in either State, he shall be deemed to be a resident
only of the State in which he has an habitual abode;

c) if he has a habitual abode in both States or in neither of them, he shall be deemed to be a

resident only of the State of which he is a national;

d) if he is a national of both States or of neither of them, the competent authorities of the

Contracting States shall settle the question by mutual agreement.

Until 2017 the OECD Model Convention provided that

3. "Where by reason of the provisions of paragraph 1 a person other than an individual is a

resident of both Contracting States, then it shall be deemed to be a resident only of the State
in which its place of effective management is situated.[4][4]

The text now provides that

"Where by reason of the provisions of paragraph 1 a person other than an individual is

resident in both Contracting States, the competent authorities of the Contracting States shall
endeavour to determine by mutual agreement the Contracting State of which such person
shall be deemed to be a resident for the purposes of the Convention, having regard to its place
of effective management, the place where it is incorporated or otherwise constituted and any
other relevant factors. In the absence of such agreement, such person shall not be entitled to
any relief or exemption from tax provided by this Convention except to the extent and in such
manner as may be agreed upon by the competent authorities of the Contracting States."

The criteria for residence in double taxation treaties may be different from those of domestic
law. Residency in domestic law allows a country to create a tax claim based on the residence
over a person, whereas in a double taxation treaty it has the effect of restricting such tax
claim in order to avoid double taxation. Residency or citizenship taxation systems are
typically linked with worldwide taxation, as opposed to territorial taxation. Therefore, it is
particularly relevant when two countries simultaneously claim a person to be a resident
within their jurisdiction.