Habitual residence

from Wikipedia, the free encyclopedia

The habitual residence of a person is a legal term that describes an actual ratio. The habitual residence is the starting point for numerous legal consequences , for example in damages law , in conflict of laws or in family law .

The habitual residence at European level

The habitual residence of a person is according to rule No. 9 of the resolution of the Committee of Ministers of the Council of Europe(72) I of January 18, 1972 to standardize the legal terms "domicile" and "residence" are given where the duration and permanence of residence as well as other circumstances of a personal and professional nature indicate the permanent relationship between a person and their residence. According to this, the voluntary establishment of a residence and the intention of the person concerned to maintain this residence are not prerequisites for the existence of a residence or a habitual residence. A person's intentions can, however, be taken into account when determining whether they are staying and what type of stay they are. This resolution can serve as an aid to decision-making when interpreting the term “habitual residence”.

Ordinary residence under German law

In German law, habitual residence is required in numerous regulations, e.g. B. in Art. 5 Abs. 2 and 3 EGBGB , § 20 ZPO , § 98 Abs. 1 Nr. 2 to 4 FamFG or § 3 Abs. 1 VwVfG . Mostly it serves to determine a judicial or administrative competence or the domestic tax liability. The various functions that the term habitual residence has to fulfill can mean that it cannot be understood in a uniform manner.

Legal definitions of habitual residence are only contained in Section 30, Paragraph 3, Sentence 2 of the First Book of the Social Security Code (SGB I), Section 10a, Paragraph 3, Sentence 1 of the Asylum Seekers Benefits Act (AsylbLG) and Section 9 of the Tax Code (AO). Together it says: “Someone has their habitual abode where they are” or “[as] their habitual abode [...] is the place where someone can be found under circumstances that indicate that they are at that place or stays in this area not only temporarily. "This is supplemented in the AsylbLG and the AO by the almost identical regulation in the respective sentences 2 and 3, according to which a coherent stay of at least six months is to be regarded as a normal stay from the beginning, whereby short-term interruptions are not taken into account; However, according to the will of the legislature, stays that are exclusively for the purpose of visiting, recreation, cure or similar private purposes and do not last longer than one year do not constitute a habitual residence.

It is justified by actually lingering for a longer period of time, and not just for a while, where the focus of social contacts, the so-called center of existence, is to be found, especially in family and professional terms. The decisive criteria according to the Federal Court of Justice for this are the duration and stability of the stay, which can be determined objectively on the basis of the actual circumstances.

According to social court jurisprudence, habitual residence is mainly based on actual characteristics. The assessment must be carried out in advance, whereby a previous longer stay can be an indication of the habitual residence. According to administrative law, a repatriate can also establish a habitual residence in a temporary residence if he remains there “in the sense of a future-oriented residence until further notice”.

External characteristics must also be linked in tax law ; all that matters is a natural will, legal capacity is not required. In any case, in tax law, a compulsory residence justifies a habitual residence, e.g. B. in prison or an accident hospital. Physical presence is required. The habitual residence is terminated when the person concerned no longer stays at the place in question and no longer has the will to return.

According to this, habitual residence is the place where the person concerned actually stays, and not just temporarily (e.g. on a visit), but for a certain period of time. The place must be the center of life, i.e. the place to which the stronger professional, family and social ties exist than to any other place. This can also be a nursing home. Registration by regulatory authorities according to the State Registration Act is not decisive, at most an indication. Temporary absence is of no consequence, e.g. B. by vacation, travel, hospitalization.

There is no specific deadline for the duration criterion. As a rule of thumb, however, six months are assumed. According to case law, a stay of six months in another state is sufficient, especially for minors, to be integrated into the new social environment in the sense of the concept of the center of existence.

The will of the person concerned or - in the case of minors - even a conflicting will of the custodians is fundamentally irrelevant for the establishment of the habitual residence. In certain cases, however, it is also used to determine the habitual residence:

  • If the person concerned has the will for a very short period of stay to change his habitual residence, i. H. to justify integration into the local social conditions, this will is taken into account and leads to the re-establishment of the habitual residence. Here, the subjective criterion of the will to stay helps to compensate for the objective criterion of duration and nevertheless to affirm the change in the center of existence. However, the determination of the will to stay will primarily have to be carried out on the basis of actual circumstances in order to rule out arbitrary determinations by the person concerned and thus the possibility of a premature change of habitual residence. In particular, the actual circumstances on site can become significant if they conflict with the will to stay, especially if the intended long-term stay is clearly inadmissible under foreign law provisions (e.g. in the case of an obviously unfounded asylum application). However, this does not affect the later re-establishment of habitual residence by changing the center of existence based on the objective criteria of duration and permanence (e.g. through the corresponding passage of time in the case of asylum seekers staying in Germany for years).
  • Even in the case of temporary absence , no change of habitual residence will be carried out, provided that the person concerned is willing to return. Here too, however, this willingness to return is again determined objectively, taking external circumstances into account.

A stay that is temporary, albeit for a longer period of time, does not constitute an ordinary stay. Even a longer stay in the clinic does not usually mean that the clinic leads the person concerned to the usual place of residence instead of the previous apartment. However, this only applies if the stay in hospital is not intended to be permanent and there is an intention to return. In any case, the OLG Karlsruhe determined that hospital stays, even if the person being cared for were kept away from their previous center of life for one or even two years, do not result in the center of their life at the clinic.

Even in the case of a longer stay in a rehabilitation facility forced by illness, this does not lead to a new habitual residence if an intention to create a new center of existence is not recognizable, rather social ties to the previous place of residence exist and not yet are given up. This can e.g. B. be proven by temporary shorter stays in your own home.

It is a matter of dispute whether prolonged detention gives rise to habitual residence. In any case, boarding school stays do not lead to habitual residence even if you spend the night there during school time.

In contrast, permanent custodial accommodation establishes habitual residence at the place of accommodation even against the will of the person concerned. This applies in particular if it is not clear whether and, if so, when the person concerned can be released at all, i.e. the possibility of release is purely abstract and, of course, especially if a return is completely excluded. This must also apply if there is no longer any other center of existence than the place of detention or other accommodation and it is uncertain whether and, if so, where such a position can be established in the future. A short stay is sufficient here if it is long-term.

In contrast to tax law, it is possible that several normal stays are given at the same time, even if this is likely to be an exception.

Ordinary residence under Austrian law

In Austrian law, the habitual residence is defined in Section 66 (2) JN and is based solely on factual circumstances, without presupposing an element of will. The question is how much time must pass to speak of habitual residence. The Supreme Court spoke of a minimum duration of six months in family law decisions, but this is also related to the effects on the jurisdiction of the courts. A minimum length of stay cannot be found in Section 66 JN.

In decisions relating to compensation law, the Supreme Court justified the existence of a habitual residence in a more differentiated manner. On the one hand, the "usual stay" can be justified by the actual duration of the stay and the ties that actually arise as a result, on the other hand, an ordinary stay can also arise through the expected duration of the stay and the expected integration . If it emerges from the circumstances that a stay is planned for a longer period of time and should in future be the center of existence instead of the previous one, the new habitual stay will be justified without the expiry of a corresponding period of time.

See also

Individual evidence

  1. z. B. §§ 1558, 1159 BGB, §§ 98, 122, 170 and 187 FamFG
  2. z. B. § 3 BtBG, § 30 Abs. 3 SGB I, § 7 SGB ​​II, §§ 86 ff SGB ​​VIII, §§ 98, 109 SGB ​​XII, § 66 IfSG, § 6 Abs. 2 PStG
  3. z. B. § 9 AO, §§ 1, 62 EStG, § 2 ErbStG
  4. Knittel, BtG, § 65 FGG margin number 9; Palandt / Heinrichs, BGB § 7 Rz 3; Damrau / Zimmermann care law, 3rd edition, § 65 margin no.3
  5. BSGE 27, 88/89; BVerwG NDV-RD 1999, 73; Gottschlich / Giese BSHG § 103 Rz 4.1
  6. BSGE 27, 88/89; LPK SGB I / trim § 30 margin no.8
  7. BVerwG NDV-RD 1999, 73/74
  8. BFH BStBl. 1994, 11 BFH BStBl. 1990, 701; FG Baden-Württemberg. EFG 1991, 102; Zabel DStR 1989, 477; Tipke / Kruse AO § 9 margin no.1
  9. BFH BStBl 1994, 887/889
  10. RFHE 49, 186/188
  11. RFHE 49, 186 and BFH NV 1987, 262
  12. BFH BStBl. 1971, 758
  13. BFHE 161, 482/484
  14. ^ FG Hamburg EFG 59, 241; FG Baden-Württemberg. EFG 90, 93; Tipke / Kruse AO § 9 margin no.16
  15. BGH FamRZ 1975, 272/273 = NJW 1975, 1068 = DAVorm 1975, 413; BGH DAVorm 1981, 44 = Rpfleger 1981, 185; BGH FamRZ 2001, 412; BayObLG FamRZ 1993, 89 = NJW 1993, 670 = Rpfleger 1993, 63; OLG Karlsruhe BtPrax 1996, 72 = FamRZ 1996, 1341; Schreieder BtPrax 1998, 203/207
  16. OLG Karlsruhe BtPrax 1992, 39
  17. BGH NJW-RR 1995, 507; BayObLG Rpfleger 1996, 343; LG Tübingen BWNotZ 1993, 145;
  18. KKW / Kuntze, § 45 margin no.15
  19. BayObLG FamRZ 1993, 89 = NJW 1993, 670 = Rpfleger 1993, 63; Higher Regional Court of Karlsruhe BtPrax 1996, 72 = FamRZ 1996, 1341
  20. OLG Stuttgart BtPrax 1997, 161/162 = FamRZ 1997, 438; Higher Regional Court Karlsruhe BtPrax 1996, 72
  21. BGH FamRZ 1975, 272/273 = NJW 1975, 1068 = DAVorm 1975, 413; BGH MDR 1985, 216; OLG Hamm FamRZ 1989, 1331; BayObLG FamRZ 1993, 89 = NJW 1993, 670 = Rpfleger 1993, 63;
  22. OLG Karlsruhe BtPrax 1996, 72 = FamRZ 1996, 1341; Bienwald care law § 65 margin no.22
  23. OLG Stuttgart BtPrax 1997, 161/162 = FamRZ 1997, 438; Bienwald care law § 65 margin no.22
  24. on the other hand BayObLG 3 Z AR 27/93, cit. in the case of Knittel supervision law § 65 margin no.8; OLG Cologne FamRZ 1996, 946; for this HKBUR / Bauer § 65 FGG margin no. 13; OLG Stuttgart MDR 1964, 768; OLG Düsseldorf MDR 1969, 143 and that. NJW-RR 1987, 894
  25. BGH FamRZ 1975, 272/273 = NJW 1975, 1068 = DAVorm 1975, 413; LG Tübingen BWNotZ 1993, 145; Bienwald care law § 65 margin no.22
  26. BayObLG FamRZ 2000, 1442; OLG Stuttgart BWNotZ 1993, 15; Bassenge / Herbst FGG, 9th edition, § 65 margin no.10; a. A .: Palandt / Heinrichs Art. 5 EGBGB margin no. 10 with further references
  27. BayObLG FamRZ 1997, 1363 = BtPrax 1997, 195; Damrau / Zimmermann care law, 3rd edition § 65 margin no.4
  28. OLG Stuttgart BtPrax 1997, 161/162 = FamRZ 1997, 438
  29. BayObLG BtPrax 2003, 132 (three-year prison sentence)
  30. HKBUR / Bauer § 65 margin no.13
  31. BFH BStBl. 66, 522; ders. BStBl. 84, 11
  32. KG FamRZ 1983, 603; KG OLGZ 1987, 311/315 = FamRZ 1987, 603/605 = NJW 1988, 649/650; LG Tübingen BWNotZ 1993, 145; BayObLG FamRZ 1980, 883