This article continues our study of the concept of residence which last month focused on rules for personal taxation in Italy.
In this article we consider the concept of “habitual residence” in family law matters in the EU. The European Court of Justice (ECJ) recently issued an important judgement on the determination of the “habitual residence” of spouses (Judgement of 20th March 2025 – Case no. C-61/24).
The habitual residence rule is a cornerstone of private international law in the European Union. This rule serves as a key connecting factor to determine the jurisdiction and/or the applicable law in cross-border civil and family law cases.
This case concerned Regulation no. 1259/2010 (“Regulation Rome III”), which sets out the rules governing which country’s law should apply to a cross-border separation or divorce. When filing joint proceedings, these rules give spouses the option to choose the law which should apply. This must be either the law of the EU member state in which they are resident OR the nationality of at least one of the spouses. In the absence of any choice, the applicable law will be, by default, the law of the country of their “habitual residence” at the moment of filing. The country must have been the place of habitual residence of the spouses at some point in the year prior to filing, and one of the spouses must still be resident there.
This Regulation must always be interpretered coherently in relation to Regulation no. 2201/2003 (Brussels II-bis) which determines the place of filing of the proceedings in cross-border family matters. In caselaw concerning Regulation no. 2201/2003, the Court has in past judgements decided that the notion of “habitual residence” is two-fold and both these elements should be met:
- a subjective element consisting of the intention of the person to fix their centre of interests in that country, and
- an objective element in that the person must have a sufficiently stable presence there. (See ECJ Case no-. C-501/2020).
This particular case involved a couple of German nationality who lived during the marriage in Sweden and Russia, as the husband was a diplomat. A divorce was granted in the court of Berlin applying Russian law, as the law of the last place of habitual residence of the couple. The wife appealed to the German Supreme court asking for the divorce to be granted in accordance with German law. The case was referred to the ECJ for guidance on the determination of the habitual residence.
In its judgment the ECJ found that even though the length of the period of residence in Russia was fairly substantial, the family could not be found to have their “habitual residence” in Russia, being based there solely for reasons imposed by the husband’s employer relating to his work as a diplomat. The element of “intention” to fix the centre of the family’s interests in Russia was therefore not met. The Court held that the family had not severed their stronger economic, family and social ties with Germany, their country of origin.