133 / 536
119
CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
were recorded, but rather the rapporteur then presented the content of the debates
in the plenary. The Redaction Committee thus rephrased the discussed provisions.
At the beginning of the session of 6 June 1900
62
and based on the changes of
redaction, the wording already mentioned the concept of habitual residence.
According to the report of the third commission, the concept of ‘residence’
(résidence)
was replaced with the concept of ‘habitual residence’
(résidence habituelle,
résidant habituellement)
in the whole text. The reason was that pure residence did
not characterise the stability which is expressed by the qualifying adjective. The
concept of pure residence appeared to improperly serve in those legal situations in
which this concept is found to be the efficient element. The concepts of domicile
were removed because of reasons already mentioned during the second conference.
63
As a result of this, habitual residence did not become the connecting factor but
rather the condition presupposed by the hypothesis of the rule for the establishment
of guardianship.
The minor should have had a closer attachment to the place for the purposes of
establishment of guardianship than just occasional occurrence in a specific territory.
In this case the principle of nationality
(le mineur est le ressortissant)
was once again
utilized. This provision was not meant to solve urgent situations. In fact, Article 7 of
the same convention established a hidden connecting factor of habitual residence. In
a case of urgency or until guardianship was established pursuant to the convention,
necessary measures for protection of the interest of the minor should have been
taken by local authorities. Local, logically, meant the
loci
of habitual residence of
a minor.
The VIth session of the Hague Conference tackled the questions of whether
regulation of the legal status of stateless persons in family law matters is desirable.
The discussion reflected both experience with autonomous usage of the concept
in German national law and strict promotion in bilateral treaties. Neumeyer, the
German delegate, suggested that the matrimonial capacity of spouses should be
bound to the connecting factor of habitual residence.
64
The applicable law for
matrimonial capacity should be the place of habitual residence.
At the beginning the German proposition was not acceptable, as the other
participants at the session favoured the legal concept before the factual concept.
However, the proportion between the supporters of the legal concept and the factual
concept had been changing during the session. Expert resistance against adoption of
the factual concept, instead of the legal one, had continually faded away. The Belgian
representative Kinon pointed to the situational relationship between habitual
residence and domicile. From the perspective of applicable law, habitual residence
62
Ibid.
, p. 91.
63
Ibid.
, p. 103.
64
Actes VIe Session, 1928, (5 au 28 janvier 1928), p. 110.