HABITUAL RESIDENCE?
Habitual residence is defined as an individual’s strong connection with a specific region where their life activities are centered. For a place to be considered a habitual residence, the individual must physically reside in that location.
Concepts such as domicile, habitual residence, place of performance, and the location where a legal transaction is carried out may have different meanings and scopes in various legal systems. This discrepancy can lead to differences in the interpretation and legal nature of these concepts. In such cases, the relevant concept should be evaluated in accordance with the legal rules of the country to which it belongs or is connected.
According to Article 2 of the Turkish Code on Private International Law and Procedural Law (MÖHUK), “If the conflict of laws rules of the applicable foreign law designate another law as applicable, this shall only be taken into account in matters related to personal status and family law disputes, and the substantive provisions of that law shall be applied.”
1. ELEMENTS OF HABITUAL RESIDENCE
a. Continuity of Residence
For a place to be considered a habitual residence, an individual must reside there continuously and without interruption. This continuity, an objective element of the concept, typically requires actual residence.
However, merely being present in a location is not sufficient to establish habitual residence. The residence must be meaningful and persist for a certain period. Since a person must develop a strong connection with a place that has become the center of their life, the duration of stay is a significant factor. The fundamental element ensuring the formation of habitual residence is the establishment of a long-term living arrangement in that location.
aa. Actual Residence
For a place to be considered an individual’s habitual residence, the person must physically reside there. The existence of habitual residence is generally determined based on whether actual residence is present.
bb. Duration of Residence
For a place to be considered a person’s habitual residence, they must have lived in that country for a certain period. However, opposing views exist on this matter. There is no specific timeframe (e.g., one year, two years) defined in legal rules or agreements. Some opinions argue that the duration of residence alone is not sufficient to determine habitual residence. In addition to the duration of residence, factors such as the individual’s adaptation to their surroundings and the extent of their integration into the community should also be considered.
b.Intent to Reside
Although different views exist, courts generally hold that an individual must have the intention or declaration of will to live in a country for habitual residence to be established. The intent to reside can be inferred from a person’s actions.
aa. THE ROLE OF HABITUAL RESIDENCE IN PRIVATE INTERNATIONAL LAW
In cases related to family law where Turkish courts have jurisdiction, the question of which party’s or which country’s law will be applied arises. According to Turkish legislation, the applicable law in such cases is determined based on the individual’s nationality, domicile, or habitual residence. Article 3 of Law No. 5718 states that unless otherwise provided, the nationality, domicile, or habitual residence of the parties at the time of the lawsuit shall be considered. These jurisdictional rules generally apply in family law cases.
The applicable law in matters of inheritance is determined under Article 20 of MÖHUK. The first paragraph of this article sets forth the general rule on which law applies to inheritance matters. According to Article 20/1 of MÖHUK, “Inheritance shall be governed by the national law of the deceased. However, Turkish law shall apply to immovable property located in Turkey.”
Obligations arising from contracts are subject to the law explicitly chosen by the parties. If the chosen law can be clearly understood from the terms of the contract or the circumstances of the case, it shall be valid (MÖHUK Article 24).
If the parties have not selected the applicable law, the law applicable to the contractual relationship shall be determined as follows:
“If the parties have not chosen the applicable law, the contract shall be governed by the law with the closest connection to the contract. This law is deemed to be the law of the habitual residence of the characteristic performer at the time of contract formation, or in cases of contracts established for commercial or professional activities, the law of the place of business of the characteristic performer. If there is no place of business, the law of the place of domicile shall apply. If the characteristic performer has multiple places of business, the law of the business most closely related to the contract shall be applied. However, if, considering all circumstances, there is another law more closely connected to the contract, the contract shall be subject to that law.”
2. CHALLENGES IN DETERMINING HABITUAL RESIDENCE IN PRACTICE
The determination of habitual residence is a complex process that requires balancing subjective and objective criteria. Although habitual residence is defined as an individual’s center of life, its legal determination involves several challenges. One of the key difficulties in this regard is determining the duration and actual residence of the individual. While it is generally accepted that a person must reside in a place for a certain period for it to be considered their habitual residence, there is no clear standard on how long this period should be.
Living in a place for a long time does not necessarily mean that it qualifies as a habitual residence. The individual’s emotional and social ties to the place are also crucial assessment criteria. Therefore, the nature of a person’s ties to a location is just as important as the length of their stay.
a. Distinction Between Temporary and Permanent Residence in Family Law
The distinction between temporary and permanent residence is another significant challenge in determining habitual residence. A person’s temporary departure from a location does not necessarily mean that their habitual residence has ended. However, if the individual has no intention of returning, the change of residence may be recognized. At this stage, courts may interpret the situation differently, leading to legal uncertainties. Whether a person intends to return to their previous place of residence is often assessed based on the specific circumstances of each case.
In family law, determining habitual residence is particularly problematic when it comes to children’s residence. When parents live in different countries, the decision regarding the child’s habitual residence must be made in accordance with the child’s best interests. However, different legal systems apply different approaches, leading to conflicts. Some jurisdictions determine a child’s habitual residence solely based on the location of one parent, while others consider whether the child regularly resides in multiple places.
b.Multiple Habitual Residences and Legal Uncertainties
In some cases, a person may have multiple habitual residences, which can create legal complications. For example, migrants and multinational families may reside in different countries at different times, making it difficult to determine which country’s laws should apply. In such cases, both national legal frameworks and international agreements play a role in determining the primary habitual residence. However, due to the lack of clear and definitive regulations in many legal systems, resolving such disputes can take considerable time.
Another major issue is the lack of uniformity in the legal definitions and applications of habitual residence across different jurisdictions. While some countries provide explicit legal definitions, others allow for broader interpretations, which can lead to inconsistencies in case law. The varying criteria used by courts further contribute to the unpredictability of legal outcomes, particularly in private international law cases where different countries’ legal systems apply different interpretations. This can undermine legal certainty and create difficulties for individuals and businesses navigating cross-border legal matters.
c.The Importance of Habitual Residence for Legal Certainty
The determination of habitual residence plays a crucial role in ensuring legal certainty. Recognizing a specific location as an individual’s center of life has far-reaching legal consequences, particularly in areas such as family law, inheritance law, and contractual obligations. A clear determination of habitual residence eliminates ambiguity and provides parties with a secure legal framework.
Additionally, the determination of habitual residence is essential in tax regulations and double taxation issues, as it clarifies which country’s tax laws will apply to an individual or entity, ensuring predictability for businesses and individuals alike.
Moreover, in international disputes, a well-defined habitual residence standard strengthens judicial consistency and facilitates cooperation between foreign courts. As a result, habitual residence plays a fundamental role in both individual legal security and global legal order. Establishing standardized criteria for determining habitual residence, ensuring consistency in court decisions, and fostering international cooperation are essential steps in achieving legal clarity.
3.HABITUAL RESIDENCE UNDER THE HAUGE CONVENTIONS
a. The 1980 Hauge Convention on the Civil Aspects of International Child Abduction
The Convention recognizes the determination of a child’s habitual residence as a key criterion in cases of child abduction and wrongful retention. According to Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the removal or retention of a child in a country other than their habitual residence is considered a violation of custody rights.
In assessing this, factors such as the child’s social environment, place of education, and relationships with family members right before the removal/retention must be taken into account.
“In determining whether the child has adapted to the new environment, the court will examine the child’s social and school life as well as his or her circle of friends, and then assess whether remaining in the country from which the child was abducted or wrongfully retained is necessary for the child’s best interests. After this assessment, the court will decide whether to reject the return request.
Identifying the child’s social environment and determining where the child predominantly carries out day-to-day activities are also factors to be considered when establishing habitual residence. Indeed, the following statements from a 2010 ruling of the Supreme Court (General Assembly on Civil Chambers) address this issue: ‘For the purposes of Article 4 of the Convention, when determining habitual residence, only the child is taken into account, and it is examined where the child established his or her social environment and continued social life immediately before the alleged abduction or wrongful retention. If the child who is the subject of the return proceedings is very young and therefore dependent on the mother, then on the date immediately prior to the abduction or wrongful retention, the mother’s habitual residence and the child’s habitual residence are deemed to be the same place.’” (Fatma Betül ÖZDEMİR, International Child Abduction and The Return of the Abducted Children)
Additionally, Article 12 states that if a child has been wrongfully removed from their habitual residence, the competent court must order their return.
The determination of habitual residence is not solely based on official address records; instead, the child’s social life, school, family relationships, and daily routine must also be considered.
If we look at the latest decisions by Supreme Court and the Regional Court of Appeals, the determination of the habitual residence can be clearly seen in these precedents:
“In the marriage established on March 25, 2016, between S, a Turkish citizen, and M, a citizen of the Federal Republic of Germany, their shared child T was born on June 8, 2017, in the United States. Since her birth, she has been living in the United States with her mother and father. As also confirmed by witness testimony, there is no dispute that the child’s habitual residence is in the United States.” (The decision file numbered 2024/947, decision numbered 2024/1248 and dated 19.09.2024 of the 56th Civil Chamber of the Regional Court of Istanbul)
“… With the decision of the First Instance Court dated and numbered as indicated above, based on the collected evidence including the social inquiry report within the file, it was established that the child had resided in Germany from birth until the defendant unjustly changed the child’s place of residence, and thus the child’s habitual residence was Germany. Moreover, according to the social inquiry
report used as a basis for the ruling, the child had not yet fully adapted to living in Turkey. Therefore, on the grounds that returning the child to his/her habitual residence in Germany would be in the child’s best interest, the claim was accepted and it was decided to return the child to his/her habitual residence in Germany. … The appealed decision of the Regional Court of Justice was UPHELD pursuant to the first paragraph of Article 370 of Law no. 6100.” (The decision file numbered 2023/6565, decision numbered 2023/4772 and dated 17.10.2023 of the 2nd Civil Chamber of the Supreme Court)
Therefore, in determining habitual residence, not only legal documents but also the actual center of the individual’s life should be examined.
b.The 1996 Hague Convention on the Protection of Children
This convention emphasizes the significance of habitual residence in matters related to custody and child protection measures. According to Article 5 of the 1996 Hague Convention on the Protection of Children, the competent authorities of the country where the child has their habitual residence have the power to take necessary measures for the child’s protection.
Additionally, under Article 7, if the child’s habitual residence has changed, the new country assumes legal jurisdiction over the matter.
In determining habitual residence, factors such as the child’s living conditions, social environment, and daily habits play a key role. For instance, if a child lives in a different country for an extended period, their habitual residence may change. A child who has moved from Turkey to Germany and has lived there for a long time could have their habitual residence recognized as Germany.
In these cases, courts and authorities evaluate the country that serves as the individual’s true center of life when making legal assessments regarding habitual residence.
4.HABITUAL RESIDENCE IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS (ECHR)
The European Court of Human Rights (ECHR) examines the concept of habitual residence in relation to the right to private life, family life, and property rights. In determining habitual residence, the Court considers factors such as actual duration of residence, social and economic ties, family relationships, and the stability of the individual’s living arrangements.
For instance, in Üner v. Netherlands (2006), the ECHR ruled that a country where an individual has lived for many years should be considered their habitual residence. The Court emphasized that a person’s social, economic, and family ties should also be taken into account. Accordingly, the Court ruled that habitual residence should not be determined solely based on official address records, but rather on the individual’s actual daily life and established living arrangements.
Similarly, in Neulinger and Shuruk v. Switzerland (2010), the ECHR held that in determining a child’s habitual residence, the child’s daily life, place of education, and social environment must be considered. The ruling emphasized that habitual residence should not be determined based solely on legal or administrative documents, but rather on actual living conditions.
Another important case, Nunez v. Norway (2011), addressed habitual residence in the context of migrants. The ECHR ruled that individuals with migrant status should have their habitual residence recognized in the country where they have lived for a significant period and where they have developed strong economic and social ties. The Court reaffirmed that people should be allowed to continue living in the country where they have established meaningful connections.
These cases demonstrate that the ECHR interprets habitual residence broadly and bases its decisions not only on legal documents but also on an individual’s actual living conditions.
Within the framework of the Hague Conventions, particularly in cases of child abduction and custody disputes, the protection of habitual residence is crucial. The ECHR’s approach reinforces that habitual residence should be determined based on personal ties, economic and social relationships, and an assessment of real-life circumstances.
For this reason, the legal consequences of habitual residence are significant in both national and international law. An incorrect determination of habitual residence could result in legal uncertainties, rights violations, and significant legal disadvantages for individuals.