Habitual residence is determined based on the totality of circumstances which may include both future intention and past experience.
Numerous domestic statutes and conventions that use habitual residence, such as the Hague Conference on Private International Law, also do not define the term.
[6] 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.
[8] 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.
Since then it has become the basis of a number of other conventions either to complement or supplant the traditional connecting factor of domicile.
A supranational example of this selection process is contained in Article 19 of the Rome Convention: 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.
[12] 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).
[13] 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.
The subjective element required for domicile is the biggest difference when comparing the factor with habitual residence.
[16] Habitual residence specifically is also becoming more common in legislation as drafters use the term as the primary connecting factor.
[17] When determining habitual residence pursuant to Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, courts are to apply the hybrid approach outlined by the Supreme Court of Canada in Office of the Children's Lawyer v Balev, 2018 SCC 16 which places emphasis on the best interests of the child.
[18] There is no specific test for defining habitual residence under the Convention, rather, a non-exhaustive list of potentially relevant factors.