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SOME THOUGHTS ON HABITUAL RESIDENCE AS AN ALTERNATIVE TO THE CONCEPT OF 

DOMICILE UNDER THE NIGERIAN LAW* 

 

Abstract 

The doctrine of domicile is a foreign concept which has been received and adopted in Nigeria by reason of her 

political nexus with her colonizers, the British. Through the doctrine, an individual or a propositus was connected 

to some legal systems for particular legal purposes. Domicile is used in Nigeria as a connecting factor in a large 
number of questions that need to be determined by the personal law of the individual. The concept as received 

and adopted in Nigeria, is fraught with difficulty in its application due to unrealistic and artificial rules leading 

to uncertainty of outcome. Through the doctrinal research method, this article has found that domicile of origin 

has the potential of reasserting itself as the person’s actual domicile. It also found that, domicile of origin referred 

to as the revival doctrine has the characteristic of connecting a person to a legal system which may be far and 

remote from the circumstances of his life. A way forward is to share some thoughts on Habitual Residence as an 

alternative to the concept of Domicile since habitual residence is without the various legal artificialities of 

domicile such as the doctrine of revival. Also, habitual residence has been used as a connecting factor for 

jurisdiction with regard to divorce, separation, and nullity of marriage, the recognition of foreign divorces, the 

formal validity of wills, international adoptions and child abduction as a compromise between the common law 

concept of domicile and the civil law notion of nationality.  

 

Keywords: Habitual Residence, Domicile, Connection, Alternative, Nigerian Law  

 

1. Introduction 

It has been universally recognized that questions affecting the personal status of a human being should be governed 

constantly by one and the same law irrespective of where he may happen to be or where the facts giving rise to 

the question may have occurred.1 But unanimity goes no further. There is disagreement on two matters. What is 

the scope of this ‘personal’ as it is called, and should its criterion be domicile or nationality?  In England, just as 

in Nigeria however, it has long been settled that questions affecting status are determined by the law of the 

domicile of the propositus and that broadly speaking, such questions are those affecting family relations and family 

property. To be more precise, the following are some of the matters that are to a greater or lesser extent governed 
by the personal law: the essential validity of a marriage; the effect of marriage on the proprietary rights of husband 

and wife; jurisdiction in divorce and nullity of marriage; though only to a limited degree; legitimacy, legitimation 

and adoption; wills of movables, intestate succession to movables and inheritance by a dependent.2 

 

Domicile is an English concept which has been received and adopted in Nigeria by reason of her political 

connection with the British.3 The concept of domicile before the nineteenth century was universally recognized 

as the basis for the application of personal law.4 According to Cheshire and North,5 the principle of domicile had 

no rival for over five hundred years. The principle was first developed in the Middle Ages by the Italian School 

of Post-glossators. The post-glossators distinction between real and personal status led to the universal recognition 

that questions affecting the personal status of a human being should be governed constantly by one and the same 

law, irrespective of where the facts giving rise to the question may have occurred.6 Thus, in the 19th Century, 

English Courts struggled to determine whether the personal law indicating a connection between an individual 
and the place should be that of nationality or domicile. Many of the cases concerned English men or Scotsmen 

who had left their places of birth and gone abroad in the service of Empire.7 At a later date, questions would arise 

as to whether the individual retained sufficient connection with England or Scotland. Given that, in the 19th 

century, the English courts tended to regard their justice as superior to that in less happy lands,8 the English Judges 

                                                             
*By Caroline Mbafan EKPENDU, LLB (Hons) (Benin), BL (Nig. Law School), LLM (BSU), PhD (BSU), Lecturer, 
Department of Private Law, Benue State University, Makurdi. Tel. 08036285390; 08076404131; Email: 

carolineekpendu@yahoo.com  
1 JJ Fawcett and J M Carruthers, Cheshire, North and Fawcett Private International Law (14th edn, Oxford University Press 
2008) 154 
2 ibid 
3 Caroline Mbafan Ekpendu, ‘The Challenges of Domicile in Conflict of Laws in Nigeria’ (Degree of Doctor of Philosophy in 
Law thesis, Benue State University, Makurdi 2016) 
4 I O Agbede, Themes on Conflict of Laws (Shaneson Limited 1989) 49 
5 G C Cheshire and P M North, Private International Law (8th edn, Butterworths 1970) 180 
6 ibid 153; Can this statement still stand given the realities of the 21st Century. For instance, in Nigeria, there is the indigene 

settled paradigm as a result of which there is spontaneous crisis all over Nigeria? 
7 Colonel Udny in Udny v Udny (1869) LR1SC & Div441 had left Scotland to serve in the Guards and then travelled to France 
to escape creditors. 
8 To the British Colonisers, their home was the best. Even as they went out to colonise other people, they regarded justice in 
their countries as superior and in the colonies as inferior and less happy lands. Furthermore, principles of common sense, 
natural justice, equity and good conscience by British judges to give England justice the unique face it carries around the 
world.  



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came to regard domicile rather than nationality as the important link between the individual and the place.9 The 

19th century witnessed an important legal development in common law countries. The personal law tended to 

become that of domicile, while in continental/civil countries, the personal law tended to be that of nationality.  

 
The concept of domicile has been received and adopted in Nigeria,10 where it operates alongside other personal 

connecting factors giving rise to conflict of laws problems. The adoption of domicile in Nigeria is said to be 

justified on ground of practical necessity as ‘Nigerian Nationality’ covers a number of independent legal 

systems.11 Problems however arise in the automatic adoption of the concept of domicile. One problem is that 

domicile was received from a country where the social and geographical background of its people is different 

from Nigeria. Secondly, the complex rules of the concept make it difficult to work effectively in the face of 

indigenous personal systems of law. Thirdly, the concept is fraught with several short comings which made 

Fawcett and Carruthers state that; ‘The English concept of domicile is bedeviled by rules, these are complex, often 

impossible to justify in policy terms, and lead to uncertainty of outcome.’12 Therefore, an automatic adoption of 

the concept of domicile from a country where the social and geographical background of its people is different 

from Nigeria would further work injustice.  
 

It is the injustice caused by the strict adherence to the unreformed principles of domicile in the connection of an 

individual to a particular state or place where he has no ties on the guise of revival of domicile of origin that this 

Article shares some thoughts on Habitual residence as an alternative to the concept of domicile under Nigerian 

law.  

 

2. Conceptual Clarifications  

 

Domicile 

The concept of domicile is not uniform throughout the world. To a civil lawyer, it means habitual residence, but 

at common law, it is regarded as the equivalent of a person’s permanent home.13 Black’s Law Dictionary has 

defined domicile in two perspectives. The first definition is, ‘The place at which a person has been physically 
present and that the person regards as home, a person’s true, fixed, principal, and permanent home, to which that 

person intends to return and remain even though currently residing elsewhere.’ The second definition refers to 

domicile as, ‘The residence of a person or corporation for legal purposes.14  In Mitchell v US,15 the Supreme Court 

of America defined domicile as:  

A residence at a particular place accompanied with positive or presumptive proof of an intention 

to remain there for an unlimited time…  

By the term domicile, in its ordinary acceptation, is meant the place to be his domicile until facts 

advanced establish the contrary.  

 

Domicile is also in the Nigerian case of Omotunde v Omotunde,16 defined as; 

The place at which a person is physically present and that which the person regards as home, a 
person’s true, fixed, principal and permanent home to which that person intends to return and 

remain even though currently residing elsewhere- same is also termed permanent abode.  

 

The basic idea of domicile was that of permanent home. Lord Cranworth in Whicker v Hume,17 observed; ‘By 

domicile we mean home, the permanent home. And if you do not understand your permanent home, I’m afraid 

that no illustration drawn from foreign writers or foreign languages will very much help you to it.’ Though the 

idea of permanent home is the central practical feature of domicile, Lord Cranworth’s definition has a deceptive 

simplicity; for domicile is a conception of law which, though founded on circumstances of fact, gives to those 

circumstances an interpretation frequently different from that which a layman would give them.18 For instance, 

while it is acknowledged that a domicile must be imputed to everyone, yet there are some persons who lack a 

home in the conventional sense of the word and others who have more than one home.19  A consideration of both 

the dictionary and case law definitions of domicile would lead to the irresistible conclusion that, domicile is the 

                                                             
9 J O’Brien, Smith’s Conflict of Laws (2nd edn, Cavendish Publishing Limited 1999) 65 
10 Interpretation Act Cap 123 Laws of the Federation of Nigeria 2004, s 32 provides for the reception and adoption date.  
11 Agbede (n4) 49 
12 Fawcett and Carruthers (n1) 154 
13 Whicker v Hume (1858) 7HL Casl24 at 160 
14 B A Garner (11th edn, Thomson Reuters 2019) 614 
15 88 US 350, 352 (1874)  
16 (2001) 9 NWLR (pt. 718) 252 at 281 (per Adekeye, JCA) 
17 Whicker (n 13) 
18 R H Graveson, Conflict of Laws (7th edn, Sweet and Maxwell 1974) 185 
19 C O Ndifon, Issues in Conflict of Laws (Vision Connections Digital Publishers 2001) 319-320 



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connecting link between a person or cooperation to a particular legal system for the determination of his personal 

laws. 

 

Habitual Residence 

According to Black’s Law Dictionary,20 habitual residence is ‘A person’s customary place of residence, especially, 

a child’s customary place of residence before being removed to some other place.’ Black’s Law Dictionary further 

explained that, ‘the term, which appears as an undefined term in the Hague Convention, is used in determining 
the country having a presumed paramount interest in the child.’21 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 and a number of International Conventions dealing with conflict to complement or supplant the traditional 

connecting factor of domicile, example in the Rome Convention 1980.22 The concept has been widely employed 

in English Statues, even those not implementing international conventions. It has been used as a connecting factor 

for jurisdiction with regard to divorce,23 separation,24 and nullity of marriage,25 the recognition of foreign 

divorces,26 the formal validity of wills,27 international adoptions,28 and child abduction.29 It has also been used in 

commercial areas of law such as in relation to contractual obligations as a result of the Contracts (Applicable Law) 

Act 1990.  The term is a pivotal part of the Hague Convention on International Child Abduction, which Article 4, 

uses the term but does not define it, as follows: ‘The Convention shall apply to any child who was habitually 

resident in a contracting state immediately before any breach of custody or access rights. The Convention shall 
cease to apply where the child attains the age of sixteen years’.  

 

3. General Principles of Domicile 

 

Every person must have a domicile.  
The evolving 19th century case law made it clear that every child is accorded a domicile by English law.30 It is a 

settled principle that nobody shall be without a domicile and in order to make this rule effective, the law assigns 

what is called a domicile of origin to every person at his birth, namely, to a legitimate child the domicile of the 

father, to an illegitimate child the domicile of the mother and to a foundling the place where he is found.31 This 

domicile of origin prevails until a new domicile has been acquired. For instance, if a Nigerian leaves Nigeria, his 

country of origin with an undoubted intention of never returning to Nigeria again, his domicile of origin adheres 
to him until he actually settles in another country, for instance, in Australia, with the requisite intention. The 

reason advanced for the above rule is stated to be the practical necessity of connecting every person with some 

legal system by which a number of his legal relationships may be regulated.32 

 

Possibility of dual Domiciliaty for Singular Purpose?  
This rule also arises from the necessity of connecting every person with a legal system by which a number of his 

legal relationships may be regulated.33 The facts and events of a person’s life frequently impinge upon several 

countries. It is necessary on practical grounds to hold that a person cannot possess more than one domicile at the 

same time at least for the same purpose.34  The application of this rule in Nigeria according to Agbede,35 provoked 

a good deal of controversy which found expression in a number of irreconcilable decisions. It has produced two 

schools of thought (whose proponents are the Federal school of thought and the State school of thought) one in 

favour of state domicile,36 the other in favour of a federal domicile.37 The arguments advanced for both the Federal 
and States Schools of thought were that matters which depend on the application of domicile are shared between 

the Federal and the State governments. Since domicile in the federation as such will not be adequate to connect a 

person with the law of a particular state and since the rule of English law, as claimed prescribes that a person 

                                                             
20 Garner (n 14) 1565 
21 ibid 
22 https://en.wikipedi.org/wiki/habitual_residence accessed 8 September 2011.  
23 Domicile and Matrimonial Proceedings Act 1973, s.s 2 (British) 
24 ibid 
25 ibid s (3) (b) 
26 Family Law Act, 1986. S 46 (1) (b) (British) 
27 Wills Act 1963 s1 (British) 
28 Adoption and Children Act 2002 S.47 (3) (British). 
29 Child Abduction and Custody Act. 1985, Schedule 1, Article 4 
30 Bell v Kennedy (1808) LR1SC and DIV. 307 at 320; Udny v Udny (1869) LR1SC and DIV 141 at 448-457, Mark v Mark 
(2006) 1HC 98 
31 Fawcett and Carruthers (n 1) 155 
32 D McClean and K Beevers, The Conflict of Laws (6th edn, Sweet and Maxwell 2005) 28 
33 ibid 
34 Fawcett and Carruthers (n 1)156 Also Udny (n 7) 
35 Agbede (n4) 66 
36 Machi v Machi (1960) LLR 103; Adeyemi v Adeyemi (1962) LLR; See Udom v Udom (1962) LLR 112 
37 See Nwokedi v Nwokedi (1958) LLR 94, Odunjo v Odunjo (1964) LLR 43; Odiase v Odiase (1965) NMLR 196 



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cannot have more than one domicile, the state school argued that only a ‘State’ domicile was feasible. The ‘Federal 

School’ on the other hand, argued that at least for purposes of those matters within the jurisdiction of the federal 

legislature, ‘domicile’ should be based on residence anywhere in Nigeria with an intention to remain in Nigeria 

permanently.38 Perhaps the argument of the ‘State School’ was an over simplification for the reason that a person 
is said to be domiciled in a law district and not the composite state as operated in unitary states such as the United 

Kingdom. Such reasoning is contradicted by social circumstances in Nigeria, a federal state where for the purpose 

of Matrimonial Causes Act,39 for the entire federation for which domicile is the only connecting factor. With the 

above controversy laid to rest by the Matrimonial Causes Act, it is safe to agree with Fawcett and Carruthers,40 

that ‘a person cannot possess more than one domicile at the same time, at least for the same purpose.’  

 

Domicile signifies connection with a Law District, that is, a territory subject to a single system of law 
Domicile signifies a connection with a single system of territorial law but does not necessarily connote a system 

that prescribes identical rules for all classes of people.41 It may well be that in a unit such as Nigeria, different 

legal rules apply to different classes of the population according to their religion, race or tribe, but nonetheless it 

is the territorial law of Nigeria that governs each person domiciled here, notwithstanding that Customary law may 
apply to one case, Islamic law to another. Also, in the case of a federation, where the legislative authority is 

distributed between the state and federal legislatures, this law district is generally represented by the particular 

state in which the propositus has established his home. In Nigeria for instance, the legislative authority is 

distributed between the federal and the state legislatures and a person can be domiciled in any one of the states in 

Nigeria. But for purposes of matrimonial causes, a propositus need not be domiciled in any of its states per se for 

the Matrimonial Causes Act,42 which is a direct consequence of the division of legislative powers in Nigeria for 

the Act to apply to such a person. Also, Australia which is a federal state has introduced rules that for the purpose 

of matrimonial proceedings a person can be domiciled in the Federal State.43 Thus, for the purposes of divorce, a 

person could be domiciled in Australia while being domiciled in say, Queensland for other purposes.44 

 

Presumption of the Continuance of an Existing Domicile until Proved that another is Acquired 

There is a presumption in favour of the continuance of an existing domicile. The burden of proving a change of 
domicile lies on the person alleging the change.45 Conflicting views have been expressed as to the standard of 

proof required to rebut the presumption. According to Scarman J. In The Estate of Fuld (No.3),46 the standard is 

that adopted in civil proceedings, that is, proof on a balance of probabilities and not proof beyond reasonable 

doubt as is the case in criminal proceedings. But Sir Jocelyn Simon P. has observed that the standard of proof 

goes beyond a mere balance of probabilities.47 Sir Jocelyn Simon’s observation might have stemmed from the 

conclusions reached in the cases of Winans v AG,48 and Ramsey v Liverpool Royal Infirmary.49 According to 

Scarman J, in Re Fuld’s Estate after observing the words used in Winans and Ramsey cases emphasised that 

preference should instead be given to the nature and quality of the intention to be proved. He summarised his 

position as follows, ‘Two things are clear; first, that unless the judicial conscience is satisfied by evidence of 

change, the domicile of origin persists and secondly, that the acquisition of a domicile of choice is a serious matter 

not to be lightly inferred by slight indications or casual words.50 It is obvious from the cases that the standard 
adopted in proving a change of domicile is greatly influenced by the type of domicile that is under consideration. 

For an allegation that a domicile of origin is lost, a higher standard is required unlike where it is one of choice 

where the standard is on the balance of probabilities. The presumption of continuance of domicile therefore varies 

in strength according to the kind of domicile which is alleged to continue. It is weakest when the domicile is one 

of dependency and strongest when it is that of origin.51  

 

Domicile of a person is determined according to the Received English Law and not according to any Foreign 

Concept of Domicile. 

This principle suggests that the domicile of a person is to be determined according to English law or the received 

English law as the case may be and not according to any foreign concept of domicile. There is however one 

                                                             
38 Agbede (n 4) 66 
39 CAP M7 Laws of the Federation of Nigeria 2004 
40 Cheshire, North and Fawcett, Private International Law (n 1) 156 
41 ibid 
42 Cap M7 (n39). See also Odiase v Odiase (n 37)  
43 Australian Family Law Act 1975, s 39 (3) (b)  
44 CMV Clarkson & J Hill, The Conflict of Laws (Oxford University Press 2006) 21 
45 Bhojwani v Bhojwani (1995) 7 NWLR (pt. 407) 349 at 353 
46 (1968) 675 at 685-686 
47 Henderson v Henderson (1967) 77 at 80; Steadman (1976) AC 538 at 538  
48 (1904) AC 287 
49 (1930) AC 588 
50 McClean and Beevers (n 32) 28 
51 ibid  



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statutory exception to this rule in the United Kingdom, under section 46 (3),52 a foreign divorce (or other 

matrimonial decree) is entitled to recognition on the basis that one of the parties is domiciled in the country where 

the judgment is obtained. Thus, for the purpose of this rule, domicile may mean either domicile according to 

English law or domicile according to the law of the country in which the divorce was obtained.53 In Nigeria, the 

domicile of a person is determined according to the characterization of the lex fori and not according to any foreign 

concept of domicile.54 This, it is submitted, agrees with the practice under English law where the English courts 

normally apply their own rules of domicile to determine where a person is domiciled.55 The connecting factor, 
domicile, must be classified according to English law, the lex fori (the law of the forum). If this results in a 

reference to a country where the law is not territorially based, it is necessary to adopt that country’s criterion of 

personal law to lead to the applicable law.56 

 

4. The Effects of Domicile on the Nigerian Legal System 

The concept of domicile though desirable, the revival doctrine of domicile of origin runs counter to the 

fundamental principle of domicile, as it may locate a person’s domicile in a country which cannot be his home by 

any stretch of the imagination. A close perusal of the doctrine reveals its serious adoption under the Nigerian legal 

system. Domicile of Origin has the potential of reasserting itself as the person’s actual domicile. If a domicile of 

choice is abandoned without being replaced by a new domicile of choice, then the domicile of origin revives.57 

This rule was settled by the House of Lords in 1869 in Udny v Udny,58 Lord Westbury stated as follows;  
The domicile of origin is the creature of law and independent of the will of the party, it would be 

inconsistent with the principle on which it is by law created and ascribed to suppose that it is 

capable of being by the act of the party entirely obliterated and extinguished. It revives and exists 

wherever there is no other domicile and it does not require to be reaquired or reconstituted, animo 

et facto in a manner which is necessary for the acquisition of a domicile of choice.59  

 

The revival of origin rule, conceived and developed in Victorian England, assumes that if ever a person ceases to 

have a permanent home, the most appropriate personal law to allocate to him is the law of the original native 

home.60 These rules were designed for the class of persons who might have an ancestral home to which they would 

long feel a commitment. However, in the more migratory modern world, it would normally be more sensible to 

attribute to a person the law of the country which was most recently the home, rather than that of a country which 
has been abandoned, perhaps very many years previously. A person may have few or no connections with the 

domicile of origin, and even may never have been there.61 Nigeria having been tutored along the lines of the 

common law, acquired the revival doctrine as part of her colonial heritage.62 However, the social-political 

structure of Nigeria greatly differs from that of England and thus, the concept of domicile as received from English 

Law cannot adequately meet the needs of the Nigerian legal system. However, the rules of domicile as adopted in 

Nigeria operates in the same manner as in the country of adoption, the British without any modifications. For 

instance, the concept of domicile relates to countries or territories or states and not to localities within countries 

or territories. Given the hardship caused by the revival doctrine in domicile of origin in technically connecting a 

person to a country or constituent state which he has abandoned or may never have set foot on, the article shares 

some thoughts on habitual residence as an alternative to the concept of domicile in Nigeria. 

  

5. Habitual Residence as an Alternative to Domicile in Nigeria  
Habitual residence is a new connecting factor which has emerged over the last forty years.63 Initially, this was a 

concept developed by the Hague Conference on Private International Law as a compromise between the common 

law concept of domicile and the civil law notion of nationality when uniform jurisdictional rules for divorce, 

separation, and annulment were introduced throughout the European Union, habitual residence was adopted as 

the main connecting factor.64  Habitual residence is therefore a concept without the various legal artificialities of 

domicile, such as the doctrine of revival and analogies with that concept are not appropriate.65 Although, 

determination of a person’s habitual residence particularly that of a child, has perhaps inevitably also become 

                                                             
52 (The English) Family Law Act 1986 which has no application in Nigeria. 
53 Clarkson and Hill (n 44) 22 
54 Agbede (n 4) 53 
55 See Re Annesley (1926) Ch 692 
56 Clarkson and Hill (n 44) 22 
57 ibid at 25 
58 (1869) LR1SC & DIV 141 
59 ibid at 458 
60 Clarkson & Hill (n 44) 26 
61 ibid 
62 Interpretation Act Cap 123 Laws of the Federation of Nigeria 2004 s.32 (1) 
63 Clarkson & Hill (n 44) 43 
64 ibid 
65 Re S (A minor (Abduction) 1991 2 FLR 1 at 20, CA 



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partly a question of law, and the law on habitual residence has become increasingly complex. The burden of proof 

is upon the person seeking to show a change of habitual residence to establish this:66 

 

Acquisition of a new habitual residence 
In determining the acquisition of a new habitual residence, the House of Lords in RcJ (Abduction Custody 

Rights)67 held that residence for an appreciable period of time and settled intention to reside on a long term basis 

are needed for acquisition of a new habitual residence. An examination of the requirements essential to the 

acquisition of a new habitual residence as deduced from the House of Lords decision in Re J’s case shall be 

undertaken.  

 

Residence 

From the reported cases, before a child or adult can be habitually resident in a country, he must be resident there.68 

This does not necessarily require physical presence at all times. Situations such as temporary absence, for example 

on holidays,69 or for educational purposes,70 or for an attempt to effect a reconciliation with an estranged spouse,71 

will not bring an end to habitual residence. Indeed, it can continue despite considerable periods of absence.72 In 
Ikimi v Ikimi,73 a petitioner was held to be habitually resident in England for the whole of the preceding year, 

despite spending 204 days of that year in a concurrent habitual residence in Nigeria and spending only 161 days 

in England.  In all these cases, the court’s focus is on the past experience of the individual and not so much on 

future intention unlike in domicile cases. Thus, the objective fact of the residence is decisive and the intentions of 

the person are of little importance even if it is clear that the person has no desire to live in the country.74 In Re J 

(Abduction: Custody Rights),75 Lord Brandon stated that ‘a person could never acquire a habitual residence within 

a single day but only after an appreciable period of time.’ In Nessa v Chief Adjudication Officer,76 the House of 

Lords interpreted this to mean that a person must have taken up residence and lived there for a period. It must be 

shown that the residence has become habitual and is likely to be habitual. The facts of the Nessa case were that, a 

woman from Bangladesh, who had a right of abode in the United Kingdom, arrived England and applied for 

income support four days later. She was held that, even though she had come here for the settled purpose of 

remaining (and so could even be domiciled here), she had not acquired habitual residence within four days. 
However, the period could be short but this depends on the degree of settled purpose. In Re AF (a minor) (child 

abduction),77 the Court of Appeal had said that one month could suffice.  

 

Settled Intention 

Residence must be accompanied by a ‘settled purpose’78 or ‘settled intention’79 of remaining in the country for 

the time being. The element of ‘animus’ required here is less than that for domicile. There is no need to show a 

person intended to stay there permanently or indefinitely. The settled intention can be for a limited period of 

time.80 Thus, a person who goes to a country for the purpose of study or of taking up employment under a fixed 

term contract can become habitually resident there. In Kapur v Kapur,81 a man who came to England to study for 

the English exams, was held to be habitually resident here for the purposes of divorce jurisdiction. Unlike domicile 

where the courts attempt to discover the necessary intention thereby producing absurd results, a settled intention 
or purpose is not something to be searched for under a microscope. If it is there at all, it will standout clearly as a 

matter of general impression.82 The settled intention is easier to show when the period is longer in habitual 

residence whereas in domicile, long residence does not confer a domicile of choice.83 Indeed, it has been suggested 

that where there is a long period of residence, the objective facts will then point to this being the habitual 

residence.84  

 

                                                             
66 F v S (Wardship: Jurisdiction) 1993 2 FLR 686 
67 (1990) 2 AC 562 at 578 
68 Re M. (Abduction: Habitual Residence) 1996 
69 Findlay v Findlay 1994 SLT 709; Rellis v Hart 1993 SLT 738 
70 Re A (Wardship Jurisdiction) (1995) 1 FLR 767 
71 Re B (Child Abduction: Habitual Residence (1994) 2 FLR 915 
72 Oundjian v Oundjian (1979) 1 FLR, where over one-third of the period was spent abroad.  
73 (2001) EWCA CIV 873, (2001) 3 WLR 672 
74 MVM (Abduction: England and Scotland (1997) 2 FLR 263. 
75 (n67) 
76 (1999) 1 WLR 1937 
77 (1992) 1 FCR 269 
78 Shah v Barnet London Borough Council (1983) 2AC 309 at 344. 
79 Re J (Abduction Custody Rights) (n 67) 578 
80 Al Habtoor v Fotheringham (2001) 1 FLR 951 at 966 
81 (1934) FLR 920 
82 Fawcett & Carruthers (n1) 190 
83 Winans v AG (n 48) 
84 Zenel v Haddow 1993 SLT 975 



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Abandonment 

Unlike domicile, a person can cease to be habitually resident in a country in a single day if he or she leaves it with 

a settled intention not to return to it but to take up long term residence in another country instead. Habitual 

residence in one jurisdiction does not necessarily come to an end merely because the person concerned leaves for 

a short period or for a temporary purpose, such as formal education.85 The abandonment of a habitual residence 

can take place without acquisition of another habitual residence elsewhere,86 with the inevitable result that a person 

has no habitual residence.87 Since habitual residence can be abandoned in one day but not acquired until there has 
been residence for a period showing that residence has become habitual, this gap when there is no habitual 

residence will correspondingly last for that period. During this period, for example, a child will be without the 

protection of the legislation on child abduction,88 and an adult such as already seen in the Nessa case will not get 

income support.89 Habitual residence as seen from the discussion above, has for some time been used as a 

connecting factor. It has played a most important role in the Conventions of the Hague Conference on Private 

International Law, since it is perceived as providing an alternative to nationality and as being free of the difficulties 

associated with domicile, such as those in regard to intention, origin, dependency and prolepsis.  

 

6. Conclusion and Recommendations 

The concept of habitual residence is best suited to modern conditions where people have freedom of movement 

around the world than in the past and is ideally suited for purposes of divorce, jurisdiction or child abduction 
where the aim is not to establish a ‘real home’ or ‘permanent home’ as in the case of domicile but rather to identify 

a jurisdiction with which a person has a legitimate connection.  In Nigeria, where for instance, the policy is to 

discourage ethnic loyalty, the alternative of habitual residence is best suited to where a propositus will be taken 

to be habitually resident in a state where he intends to reside and make a living. Besides the domicile of a nomad, 

for instance, nomadic Fulani may be fluid, given the strict rules of a domicile of choice but with the alternative of 

habitual residence, such a propositus has a connecting factor. The above submissions do not portray habitual 

residence without any flaws, as habitual residence is said to be unsuitable for general choice of law purpose as it 

generates as link with a country that may be tenuous.90 For instance, an English domiciliary working on a one or 

two-year contract can become habitually resident in Saudi Arabia. If habitual residence were to replace domicile 

as a general connecting factor for choice of law purposes, this would mean that questions such as his capacity to 

marry more than one wife would be governed by Saudi Arabian law. Such an approach would be inappropriate 
and could encourage people to engage in a deliberate evasion of the law that would normally be applicable to 

them.  Further, one could not countenance habitual residence as a general connecting factor when it is possible to 

have no, or more than one, habitual residence.91 Attempts to employ habitual residence as a general substitute for 

domicile has been rejected by the Law Commission.92 Despite the flaws of habitual residence pointed above, it is 

opined that habitual residence could be employed in certain choice of law situations in Nigeria where an adherence 

to the rigid principles of domicile would create injustice to the propositus (person). Habitual residence could 

therefore be established based on a simple inquiry to establish where a person has his habitual residence. For 

instance, the length of time spent in a place other than the country of origin, a person’s investments, connections 

and so on, in another country or state which he is habitually resident rather than the rigid principles of domicile.   

 

                                                             
85 P v P (2007) 2 FLR 439 
86 Re M (Abduction: Habitual Residence) (n 68) 
87 Mark v Mark (2006) AC 98 
88 Re F (A Minor) (Child Abduction) (1992) 1 FLR 548, CA 
89 Nessa (n76) 
90 Clarkson & Hill (n 44) 50  
91 ibid  
92 Ibid 51 


