Case study #5 - International divorce: determining habitual residence | Sylvie Mombellet - Lawyer in international family law in Rouen

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Agreeing on the habitual residence when getting divorced internationally.

In the context of international divorce, the question of habitual residence has significant impacts on many decisions. Free choice of the parties involved? Criteria to be taken into account? Discover in this article the rules that underlie its determination.

I am getting a divorce: why and how should I define the habitual residence of my couple?

You are getting a divorce. Your couple has the particularity of being binational or expatriate. Your family has always moved between several homes. Be vigilant! Before anything else, be clear on the habitual residence of your household, or in other words, its main domicile. This indication of attachment has important implications for the procedure: it establishes the competent jurisdiction to rule on the dissolution of the marriage. Moreover, it guides decisions on child custody, alimony, and distribution of property. But beware! Determining habitual residence in the context of an international divorce is not so simple and can become a source of dispute! Sylvie Mombellet, your lawyer-advisor, specialist in international family law, details the specificities and developments of this major legal concept.

My habitual residence is the place where I stay long-term!

Not so sure... Indeed, it is customary to define residence as the place where a person spends most of their time. In this regard, various activities may be considered to establish evidence of the constancy of attendance: work, children's schooling, social life, leisure activities, and the presence of real estate...

That being said, you should know that the term "habitual residence" is an autonomous concept of European legislation. This means that its meaning is specific to European Union laws, distinct from the national law of a member country. Regulation "Brussels II bis" of November 27, 2003 made it its central criterion, but without giving a clear legal definition. Regulation Brussels II ter of June 25, 2019, replacing Regulation Brussels II bis, also did not provide a definition of the concept of habitual residence. On June 25, 2019, Regulation "Brussels II ter" again addresses the notion of habitual residence but without defining it more precisely.

Its appreciation then depended on the free interpretation of experts, which posed a problem, precisely in the context of multicultural divorces. Lawyers and courts relied on previous deliberations of the Court of Justice of the European Union (CJEU) to identify it. Since then, other judgments have helped refine the notion.

But then? What do the case laws specify?

As a result of the instructions that have been held since, the CJEU has been able to refine and clarify constitutive criteria. New orders have finally developed relevant legal principles. The decision recorded by the judgment of 11/25/2021 brings a major evolution to this principle.

Two precepts are to be retained to characterize the main residence of the spouses:

The intention of the person concerned to establish the habitual center of their interests in a specific place.
A presence that is sufficiently stable in the territory of the member state involved.

Understand here that the individual's intentionality becomes the distinctive marker of the choice of location of attachment.

Are you getting an international divorce? If the question of habitual residence is crucial, the nature of your matrimonial regime can raise other legal issues. Check out our "case study" article on the automatic mutability of the regime, in case of moving abroad: "Case Study #1 - The Double-Effect Brexit"

Belgian story: demonstration by the Court of Cassation by example

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This case study illustrates the effects of European case law. Two Belgians, married in their home country, owned two residences: one in their homeland and the other in France. In 2020, the wife filed a divorce petition before a French family court judge. The husband, however, preferred a Belgian magistrate. To justify their establishment in Belgium, the husband argued that:

le couple y a toujours effectué de courts séjours ;
they also maintained administrative and financial interests there (bank accounts, unemployment benefits, income tax, social security...)

The Court of Cassation, in a ruling delivered on November 30, 2022, rejected the appeal. According to the criteria set by the CJEU, the elements put forward were insufficient to characterize the Belgian residence as habitual. Given that:

The couple made almost all their day-to-day expenses in a region located in France;
They developed their social and friendship networks in the same location;
The villa in which they had settled, and where they had carried out repair and maintenance work, was also located there;

The High Authority therefore accepted the French residence as usual. It was the combination of the previously listed elements that led to the determination that the defendants had "the intention of fixing [...] the usual center of their interests by leading a sufficiently stable social life there."

Consult the full ruling here.

The new interpretation of the CJEU represents a major breakthrough for divorce cases involving European citizens and impacts inherent decision-making. Its assessment is more flexible and takes into account the complexity of modern family contexts. In this constantly evolving field, seeking the assistance of a specialist in international family law is important to obtain professional advice. Your lawyer, Sylvie Mombellet, is able to provide you with tailored advice for your situation.