A. Connecting Factors

Prior to the 2010 Chinese PIL, lex personalis in China was mainly addressed in the General Principles of the Civil Law of the People's Republic of China (the GPCL),Footnote ⁵ the Negotiable Instruments Law of the People's Republic of China,Footnote ⁶ and the Opinion of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (1988) (the Opinion on the GPCL).Footnote ⁷ In those laws, lex personalis included the law of the country where a Chinese person settled down,Footnote ⁸ the law of domicile,Footnote ⁹ the law of nationality and the law of the place of an act.Footnote ¹⁰ Among them, domicile and nationality were the two principal connecting factors that dealt with conflict of laws issues, as these examples underscore:

1. 1. With regard to domicile, in dealing with the ‘statutory succession of an estate,’ the GPCL provides that movable property is governed by the law of the decedent's last place of domicile.Footnote ¹¹ However, Article 190 in the Opinion on the GPCL stipulates that the ‘establishment, alteration or termination of a guardianship’ is governed by the national law of the person under guardianship; if such person has domicile in China, Chinese law applies.

2. 2. With regard to nationality, the Negotiable Instruments Law of China provides that the capability of a debtor of negotiable instruments to enter into legal acts is governed by the law of the debtor's nationality. In cases where a debtor is deemed incapable of undertaking a civil act under the debtor's national law or whose civil act is restricted, while the debtor is regarded as having the capability of performing a civil act under the law of the place of the act, the latter law applies.Footnote ¹²

3. 3. The ‘most significant relationship’ as a connecting factor is also used to govern family matters.Footnote ¹³ For example, the GPCL provides that ‘maintenance’ is governed by the law of the country with which the supported person has the most significant relationship.Footnote ¹⁴

Summing up, China had over time adopted a diversified and mixed model to define lex personalis; its laws did not feature a single dominant connecting factor in determining lex personalis.

The 2010 Chinese PIL consists of 52 articles; none involve or prescribe domicile as a connecting factor. Domicile has been completely abandoned, and nationality has become less important than previously. Although nationality is addressed in 10 articles, it is used only as an alternative or optional connecting factor.Footnote ¹⁵ For example, Article 22 provides that the formalities of a marriage are fulfilled if they comply with the law of the place of the marriage celebration, or with the law of habitual residence of either of the parities, or with the law of nationality of either of the parties. Furthermore, Article 19 provides ascertainment of the law of nationality in case of multiple nationalities.Footnote ¹⁶

In contrast, 25 articles in the 2010 Chinese PIL are concerned with the law of habitual residence, where the concept appears 42 times as a connecting factor in five different situations, each of which will be described in turn.

First, habitual residence is the sole connecting factor. For example, Article 11 specifies that a natural person's capacity to have rights and obligations is governed by the law of his or her habitual residence. In Article 11, habitual residence is exclusive, without any supplementing connecting factor. Six of the 25 articles adopt habitual residence as the sole connecting factor in determining the applicable law. Those six articles deal with the following matters: A natural person's capacity to have rights and obligations;Footnote ¹⁷ declaration of disappearance or of death;Footnote ¹⁸ contents of personality rights;Footnote ¹⁹ prerequisites of, formalities for and effects of an adoption;Footnote ²⁰ statutory succession;Footnote ²¹ infringement, either via the internet or by other means, of personality rights such as the rights in regard to one's name, image, reputation and privacy.Footnote ²²

Second, habitual residence is the primary connecting factor. For example, in regard to qualifications for a marriage, Article 21 provides that the qualifications for a marriage are governed by the law of the place where the spouses have their habitual residence in common; and in the absence of such, by the law of the nationality that the spouses have in common; and in its absence, by the law of the place of the marriage celebration if the marriage is entered into at the place of habitual residence of either of the parties or in the country of the nationality of either party.Footnote ²³ In Article 21, if a habitual residence is absent, then other connecting factors are listed in the Article as alternatives. As the primary connecting factor, the law of habitual residence governs such matters as a natural person's capacity to enter into legal acts;Footnote ²⁴ multiple nationalities;Footnote ²⁵ qualifications for marriage;Footnote ²⁶ personal relationships of husband and wife;Footnote ²⁷ personal and property relationships of parent and child;Footnote ²⁸ consumer contracts;Footnote ²⁹ and product liabilities.Footnote ³⁰

Third, habitual residence is an alternative connecting factor. For example, in regard to the property relationship between husband and wife, Article 24 allows the parties to choose the law of habitual residence of either one, or the national law of either party, or the law of the place of main properties. In the absence of such a choice of law, the law of the place where both spouses have their habitual residence applies; and in its absence, the law of the nationality that the spouses have in common applies.Footnote ³¹ In Article 24, the primary connecting factor is party autonomy. The parties may first agree to choose an applicable law. Without such choice, the law of the parties' common habitual residence applies. Habitual residence as an alternative connecting factor is provided in six articles in the 2010 Chinese PIL. They deal with the organization of a legal person and its branches, the rights and duties of affected shareholders, capacity to have rights or to bear obligations, and capacity to enter into legal acts;Footnote ³² matrimonial property;Footnote ³³ uncontested divorce;Footnote ³⁴ revocation of an adoption;Footnote ³⁵ tort liabilities;Footnote ³⁶ and unjust enrichment or negotiorum gestio. Footnote ³⁷

Fourth, habitual residence is an optional connecting factor. For example, Article 29 provides that maintenance is governed by the law of one party's habitual residence or nationality, or by the law of the place where the main asset is situated. The decisive factor depends on the law that is most favourable for the protection of the rights and interests of the supported person.Footnote ³⁸ In Article 29, habitual residence is only optional or parallel to other connecting factors. Six of the 25 articles adopt habitual residence as an optional connecting factor in determining the applicable law. Those articles deal with the following matters: formalities of marriage;Footnote ³⁹ maintenance;Footnote ⁴⁰ guardianship;Footnote ⁴¹ formal validity of testamentary dispositions;Footnote ⁴² effects of testamentary dispositions;Footnote ⁴³ and contracts.Footnote ⁴⁴

Fifth, Article 20 provides that if the law of a natural person's habitual residence applies but the person's habitual residence cannot be ascertained, then the law of his or her current residence applies. The Article specifies how to determine habitual residence if a person's habitual residence is not clear. In Article 20, habitual residence is not a connecting factor.

B. Scope of Application of Habitual Residence

In the 2010 Chinese PIL, the scope of application of habitual residence is not limited to traditional fields such as a person's status or capacity,Footnote ⁴⁵ successionFootnote ⁴⁶ or family matters.Footnote ⁴⁷ The concept also applies to other civil fields such as rights of personality,Footnote ⁴⁸ tort liabilities;Footnote ⁴⁹ and unjust enrichment or negotiorum gestio.Footnote ⁵⁰

Furthermore, the scope of application of habitual residence has expanded into the commercial sphere under the 2010 Chinese PIL. In Chapter VI, ‘Law of Obligations,’ habitual residence appears in six articles as a connecting factor. Among them, Article 41 provides habitual residence as an alternative connecting factor in determining the applicable law of contracts in general.Footnote ⁵¹ In cases concerning consumer contractsFootnote ⁵² and product liability,Footnote ⁵³ habitual residence is used as the primary connecting factor. By contrast, nationality is not prescribed as a connecting factor in Chapter VI. Nationality as a connecting factor is provided only in matters of marriage, family and succession. Therefore, habitual residence has become one of the most fundamental connecting factors in the 2010 Chinese PIL and its scope of application has gone beyond the traditional scope of lex personalis.

A. Negative Concerns

During the drafting of the 2011 Chinese PIL, some legal scholars and practitioners opposed adoption of habitual residence as a principal connecting factor of lex personalis because of a number of concerns. These concerns focus on two issues: protection of the rights of Chinese citizens and clarification and definition of habitual residence.

One argument concerns ensuring the strongest possible protection for the hundreds of thousands Chinese citizens who travel to, stay temporarily in, or emigrate to other countries. China's law of nationality was held to best offer that protection. Many foreign countries have adopted laws of domicile or of habitual residence in their lex personalis. Chinese law would also have more opportunities to be applied when its citizens move to or visit a foreign country. By contrast, countries that have large numbers of immigrants, such as the United States, Canada, Switzerland and Belgium, mainly adopt the law of domicile or of habitual residence in their lex personalis. In those countries, the law of domicile or of habitual residence will in fact be their own law because immigrants have lived or are living in those countries.Footnote ⁵⁵

Another concern was the fact that the term ‘habitual residence’ is ambiguous.Footnote ⁵⁶ Habitual residence was first used in the context of the custody of children in 1902.Footnote ⁵⁷ Since that time, habitual residence as a connection factor has been adopted in many conventions of the Hague Conference on Private International Law, such as: the Convention of 15 June 1955 relating to the Settlement of the Conflicts between the Law of Nationality and the Law of Domicile;Footnote ⁵⁸ the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants;Footnote ⁵⁹ the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;Footnote ⁶⁰ and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.Footnote ⁶¹ However, while habitual residence has clearly been a favourite concept in Hague conventions, none has included a definition of this ambiguous term. Such ambiguity derives from two uncertainties, one regarding what amounts to ‘an appreciable period of time’ and the other ‘a settled intention’.

An appreciable period of time is subject to different provisions or practices in different countries. In Australia, in one case, habitual residence was acquired after less than three months' residence;Footnote ⁶² in another case, three weeks was not sufficient.Footnote ⁶³ In the United Kingdom, 161 days may be sufficient,Footnote ⁶⁴ whereas 71 days were not.Footnote ⁶⁵ Even within one country, courts in different jurisdictions may apply different standards.Footnote ⁶⁶

Settled intention refers to ‘part of the regular order of his life for the time being, whether of short or of long duration.’Footnote ⁶⁷ Accordingly, a person needs to have a purpose for staying at a place, whether permanently or indefinitely. Generally speaking, the longer a person lives in a place, the more easily his settled intention may be determined. However, in determining settled intention, courts in different countries have adopted different practices; some require long-term residency, whereas others may just require a month.Footnote ⁶⁸

In domestic laws, habitual residence is also defined differently. In Belgium, the term means the place ‘where a natural person has established his main residence, even in the absence of registration and independent of a residence or establishment permit; in order to determine this place, the circumstances of personal or professional nature that show durable connections with that place or indicate the will to create such connections are taken into account.’Footnote ⁶⁹ In Switzerland's Federal Code on Private International Law of December 18, 1987,Footnote ⁷⁰ Article 20(1)(b) provides that a natural person ‘has his place of habitual residence in the States in which he lives for an extended period of time, even if this time period is limited from the outset’.

Because of differences in definitions and practices, habitual residence is subject to varying interpretations in different countries. In China, few transnational cases have involved habitual residence. No case has clearly demonstrated that habitual residence is more effective in protecting Chinese people's interests nor that the concept is superior to domicile and nationality.

B. Positive Considerations

The proponents of habitual residence claim its advantages override these negative concerns, and for three main reasons. First, habitual residence is generally easier to establish than domicile because the former concept depends less on the intention of the person concerned.Footnote ⁷¹ The ascertainment of domicile is not an easy matter. ‘There must be act and there must be the intention’,Footnote ⁷² but both the concept of permanency and the ascertainment of a person's intentions are fraught with difficulty.Footnote ⁷³

Second, the growing fluidity of modern society causes ever greater mobility among people throughout the world and especially for Chinese business people, students and tourists who go abroad. Sometimes, the domicile or nationality of a natural person does not have a close relationship with his or her life. However, habitual residence equates to the habitual centre of a natural person's interests. If a person marries, adopts a baby or makes a will in the place of his or her habitual residence, the law of habitual residence shall apply in order to protect local order and social morality.Footnote ⁷⁴

Third, habitual residence can be used to solve the conflicts of multiple nationalities or multiple domiciles.Footnote ⁷⁵ In the Convention of 15 June 1955 relating to the Settlement of the Conflicts between the Law of Nationality and the Law of Domicile, habitual residence has been adopted in order to ‘establish common provisions concerning the regulation of conflicts between national law and the law of domicile.’Footnote ⁷⁶ In China, according to the Opinion on the GPCL, if a foreigner has double or multiple nationalities, the law of his nationality shall be the law of the country of his domicile or of the country with which he has the closest connection.Footnote ⁷⁷ Where the domicile of a person is not clear or cannot be ascertained, his habitual residence shall be the person's domicile.Footnote ⁷⁸ Therefore, habitual residence is an important factor in ascertaining the law of a person's nationality and domicile.

These three considerations convinced the majority of scholars to choose habitual residence over nationality or domicile as a principal connecting factor in lex personalis.

C. Rationales for Habitual Residence

Internationally, habitual residence is a concept acceptable to legal practitioners from both common law and civil law traditions. It represents a compromise between domicile and nationality, or is at least ‘a more acceptable connecting factor than domicile to be used as an alternative to nationality’.Footnote ⁷⁹

The concept of domicile is not uniform throughout the world. To a lawyer in a civil law country, domicile means habitual residence, but in common law countries the term is regarded as the equivalent of a person's permanent home.Footnote ⁸⁰ In the United States, ‘Domicile is the place with which a person has a settled connection for certain legal purpose, either because his home is there, or because that place is assigned to him by the law.’Footnote ⁸¹ Domicile in the United States falls in one of two categories: domicile of origin or domicile of choice.Footnote ⁸² To acquire a domicile of choice in a place, a person must be physically present there;Footnote ⁸³ and the person must also intend to make a home there.Footnote ⁸⁴

In the United Kingdom, ‘by domicile we mean home, the permanent home.’Footnote ⁸⁵ Nobody can legally exist without a domicile. Domicile can also be classified here into domicile of origin and domicile of choice. No person can have two domiciles at the same time for the same purpose.Footnote ⁸⁶ The concept of domicile in England has been criticized by some law reform agenciesFootnote ⁸⁷ because the rules of domicile are complicated. The concept of domicile in those rules sometimes is difficult to justify in policy terms, and possibly produces uncertainty of outcome.Footnote ⁸⁸ Those concepts have been revised or modified in other common law countries such as New Zealand,Footnote ⁸⁹ AustraliaFootnote ⁹⁰ and Canada.Footnote ⁹¹

In common law countries, domicile is of fundamental importance in the rules of personal law in conflict of laws. However, pre-eminent domicile is nowadays less secure than was formerly the case. The lawmakers and the courts increasingly use the concept of residence and of nationality in place of domicile in determining personal law.Footnote ⁹² As one scholar pointed out as early as in 1964, domicile has become ‘a superannuated concept’.Footnote ⁹³

As far as the concept of nationality is concerned, most civil law countries, especially in continental Europe, adopt nationality as the prevailing connecting factor in personal law for the purposes of conflict of laws.Footnote ⁹⁴ Compared with domicile, nationality has at least two advantages: It is stable and it is easy to ascertain. Nationality is more stable because a change of nationality needs the formal consent of the State of the new nationality. Change of or addition to nationality also involves a formal process of naturalization. Nationality is easier to ascertain than domicile because the change of nationality does not depend on the subjective intentions of a relevant person.Footnote ⁹⁵

However, nationality also has some disadvantages. First, in practice, the court often encounters the situation where a person has two nationalities or is stateless. In such cases, the court needs to resort to another connecting factor, such as habitual residence, in order to determine lex personalis.Footnote ⁹⁶ Second, the principle of nationality may sacrifice a person's personal freedom to adopt the legal system of his own choice because ‘it may require the application to a man, against his own wishes and desires, of the laws of a country to escape from which he has perhaps risked his life.’Footnote ⁹⁷ Nationality as a connecting factor has received wide criticism.Footnote ⁹⁸ As discussed above, the rival connecting factor, domicile, has not provided a satisfactory alternative.Footnote ⁹⁹

At the international level, habitual residence has now become the most important connecting factor in lex personalis. The trend away from domicile and nationality is increasingly discernible.Footnote ¹⁰⁰ In addition to the Hague Conventions, the European Union (EU) countries have also widely adopted habitual residence in their regulations.Footnote ¹⁰¹ Examples include Council Regulation (EC) No 2201/2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility;Footnote ¹⁰² and Council Regulation (EU) No 1259/2010 of 20 December 2010 Implementing Enhanced Cooperation in the Area of the Law Applicable to Divorce and Legal Separation. Habitual residence has also expanded into the commercial sphere in the EU, as evidenced by Articless 4(2) and 5 of the Convention on the Law Applicable to Contractual Obligations (Rome Convention);Footnote ¹⁰³ that Convention has adopted habitual residence as a connecting factor.

As noted above, no definition of habitual residence has ever been included in a Hague Convention. That fact is one major cause of ambiguity in the concept of habitual residence. However, that ambiguity seems to reflect the result of a deliberate policy. From the very beginning, the Hague Conference on Private International Law has stressed that habitual residence signifies a situation of fact, in opposition to the legal concept of domicile.Footnote ¹⁰⁴ It has therefore consistently rejected efforts to define habitual residence,Footnote ¹⁰⁵ ‘[t]he aim being to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems. In those contexts, the expression is not to be treated as a term of art but according to the ordinary and natural meaning of the two words it contains.’Footnote ¹⁰⁶

Use of habitual residence as a dominant connecting factor in the 2010 Chinese PIL will advance consistency of Chinese laws with international conventions. Therefore, China is likely to adopt measures that are common with relevant convention members or to accede to the Conventions concerned.

In some situations, habitual residence may not be decisive as a connecting factor between a person and the law of a country. Sometimes, the person's civil status and affairs cannot be justified or be determined according to the law of habitual residence or by a court of the relevant country. The application of the law of habitual residence may produce unreasonable results. For example, assume that A is a Chinese oil engineer working in Iraq on a two-year contract. According to the 2010 Chinese PIL, the following results are likely to occur.

First, A's legal capacity with regard to his or her rights and obligations will be governed by the law of Iraq.Footnote ¹⁰⁷ So will A's capacity to enter into legal acts,Footnote ¹⁰⁸ the contents of A's personality rights,Footnote ¹⁰⁹ and declaration of A's disappearance or death.Footnote ¹¹⁰

Second, if A wants to marry B who lives with A in Iraq, qualifications for their marriage and their personal relationships will be determined by the law of Iraq.Footnote ¹¹¹

Third, if A dies intestate whilst habitually residing in Iraq, the rights of succession to his moveable property will be governed by the law of Iraq.Footnote ¹¹²

The preceding three situations demonstrate that ‘the exclusive use of habitual residence would cut the links between many temporary expatriates and their homeland, isolating them and their dependants from its law and courts despite their remaining closely connected with that country.’Footnote ¹¹³ They also show the difficulty of applying the law of habitual residence in protecting Chinese nationals abroad. In fact, if the case is heard in Iraq, the Iraqi court may apply its choice-of-law rules to decide which law will govern the three situations. If the relevant cases are adjudicated in China, Chinese courts may explore whether A still has a habitual residence in China. So far, habitual residence is not exclusive; and in many cases, a person may have two habitual residences at the same time. Article 20 of the 2010 Chinese PIL can also be used to deal with these three situations.

Of course, habitual residence is not exceptional; other concepts have their advantages and disadvantages. Relative advantages will have to be balanced in choosing a connecting factor in determining lex personalis during the enactment of choice-of-law rules. As discussed earlier, habitual residence is a concept relatively superior to domicile and nationality to determine lex personalis. That recognition may be an important reason why the Chinese Legislature has adopted habitual residence as a principal connecting factor of lex personalis in the 2010 Chinese PIL.

A. Conflicts in Current Chinese Laws

The 2010 Chinese PIL changes connecting factors of lex personalis from prior diverse approaches into a relatively single model. Conflicts are bound to arise between old and new statutes. Several examples are given below to demonstrate the significant impacts that the new law will undoubtedly have on Chinese judicial practice with regard to lex personalis.

In statutory succession, according to Article 31 of the 2010 Chinese PIL, movable property is governed by the law of the place where the deceased habitually resided at the time of death. By contrast, Article 149 of the GPCL provides that movable property is governed by the law of the decedent's last place of domicile. Those two articles will come into conflict because the 2010 Chinese PIL does not, unfortunately, make any provisions for or adopt any approaches to deal with conflict between Article 31 of the 2010 Chinese PIL and Article 149 of the GPCL.

A similar conflict pertains to a natural person's capacity to enter into legal acts. In accordance with the 2010 Chinese PIL, a natural person's capacity to enter into legal acts is mainly governed by the law of that person's habitual residence.Footnote ¹¹⁴ In contrast, that capacity is governed by the law of nationality in the Negotiable Instruments Law.Footnote ¹¹⁵ In the GPCL, if a Chinese citizen settles in a foreign country, his or her capacity to enter into legal acts may be governed by the law of that country.Footnote ¹¹⁶ These three potentially conflicting provisions co-exist. When they come into conflict, no rule is available to determine which one prevails.

Some conflicts may arise not only among the provisions of Chinese laws, but also between the 2010 Chinese PIL and judicial directives by the Supreme People's Court of China. For example, guardianship in the 2010 Chinese PIL is governed by the law of one party's habitual residence or by the law of the party's nationality, depending on which law most effectively protects the rights and interests of the person under custody.Footnote ¹¹⁷ However, in the Opinion on the GPCL, the national law of the person under guardianship applies to the establishment, alteration and termination of a guardianship. The law of China shall be applied if the person under guardianship has domicile in China.Footnote ¹¹⁸ In Article 190 of the Opinion on the GPCL, habitual residence is not a connecting factor. However, that concept is a connecting factor in determining the law applicable to guardianship in the 2010 Chinese PIL.

The Opinion on the GPCL is a judicial instrument to explain and implement the GPCL which was promulgated by the Supreme People's Court in 1988. The judicial interpretations of the Supreme People's Court mainly come from specific cases or are restatements or summaries of the rules and principles embodied in previously heard cases. From the wording in two legal instruments, the 2010 Chinese PIL and the Opinion on the GPCL, the law of habitual residence was never applied to matters of guardianship in Chinese courts prior to the 2010 Chinese PIL. Accordingly, no case of maintenance had been applied to the law of habitual residence in Chinese courts. In subsequent practice, however, Chinese courts must apply the new rule, the law of habitual residence, to govern maintenance because the 2010 Chinese PIL prevails over the Opinion on the GPCL. Hence, in practice, conflict between the 2010 Chinese PIL and the Opinion on the GPCL should be avoided.

In the discussion above, the conflicts between the 2010 Chinese PIL and other laws or rules mainly arise where there is conflict between habitual residence versus domicile or nationality. Article 15 of the GPCL provides that if a natural person's habitual residence is not the same as his domicile, his habitual residence shall be regarded as his domicile. Accordingly, Chinese courts may reduce the conflicts between domicile and habitual residence by application of that stipulation. However, there is no rule to resolve the conflict between the provisions regarding habitual residence and nationality. China's Legislature needs to adopt a new law to abolish the previous rules and statutes which conflict with the 2010 Chinese PIL.

B. Definition of Habitual Residence

As already stated, prior to the 2010 Chinese PIL, the domicile and nationality concepts were the main connecting factors in lex personalis. In Chinese courts' practice, few cases exist involving these two terms; transnational cases involving habitual residence are even more scarce.

In China, the domicile of a citizen is the place where his or her residence is registered; if his habitual residence is not the same as his domicile, his habitual residence shall be regarded as his domicile.Footnote ¹¹⁹ Article 9 in the Opinion on the GPCL further specifies that the place where a citizen has consecutively lived for over one year after leaving the domicile is the citizen's habitual residence, except for the case where the citizen lives in a hospital for medical treatment. Before a citizen moves to another place after moving out of the place where his or her residence is registered and has not yet established a habitual residence, the place where the person's residence is registered shall still be the person's domicile. According to the Opinions of the Supreme People's Court on Some Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China in 1992 (the 1992 Opinions),Footnote ¹²⁰ Articles 4 and 5 establish similar provisions.Footnote ¹²¹

In summary, it may be concluded that the establishment of habitual residence in China should meet four criteria. Furthermore, some issues are attached to those criteria.

First, habitual residence is a place other than domicile. In China, domicile is the place of a natural person's permanent residence,Footnote ¹²² which is usually registered by the relevant local public security agency. The permanent residence is stable. It will be re-registered with another public security agency if a natural person changes his or her permanent residence. However, a natural person may often change habitual residence without registry. Hence, a person's habitual residence is highly fluid.

Second, habitual residence must be the place where a natural person ‘consecutively’ lives for over one year. If a person just occasionally lives in a place for one or more years, the place should not be considered the person's habitual residence.Footnote ¹²³ A regular physical presence must exist for at least one year. In practice, there is a different understanding about ‘consecutively.’ In modern society, people move more frequently than in earlier times. If a person travels to another place, does that constitute a break in or a discontinuance of ‘consecutive’ residence?

In Qing Yu v Yong Cai in 2006,Footnote ¹²⁴ the plaintiff sued the defendant for divorce in Cixi People's Court, Zhejiang Province. The Court accepted the case on the basis of the defendant's habitual residence in its jurisdiction, Cixi city. The defendant objected to the jurisdiction of the Court for the following reasons: He was a citizen of Cixi city before he worked for a company located in Ningbo, Zhejiang Province. In 2001, his permanent residence was changed and registered in Ningbo city. In 2002, the defendant and the plaintiff married and rented a house in Cixi. After marriage, the defendant went to Germany to study for two years, and the plaintiff moved to live with her mother in Cixi. After the defendant returned in 2004, he also lived in his mother-in-law's house, but he frequently travelled to other places on business. The defendant contended that he just lived in Cixi occasionally, not in the long run. He had never lived in Cixi consecutively for one year. Therefore, his habitual residence was not in Cixi, but in Ningbo city. The court held that two years had passed since the defendant returned from Germany in 2004, and that the defendant had not have a residence in Ningbo. He had lived in his mother-in-law's house in Cixi for more than one year even though he frequently went to other cities on business. On February 9, 2006, the court dismissed the objection of the defendant.Footnote ¹²⁵

This Chinese domestic case demonstrates that the consecutive residence is a relative concept, not an absolute one. Residence cannot depend only on the time factor. The person's intention to give up the old residence and find a new one is an important factor in judging the individual's habitual residence. The position in many other countries, as noted above, is that no fixed appreciable period of time exists in determining whether habitual residence has been established.Footnote ¹²⁶ Much depends on the circumstances of the particular case; length of residence should not be solely determinant. In establishing habitual residence, factors such as a person's family situation; the reasons which led him or her to move; the length and continuity of residence; the fact of stable employment; and the person's intention as it appears from all the circumstances should also be considered.Footnote ¹²⁷ That situation may require China to further revise its laws relevant to habitual residence or to redefine the concept of habitual residence.

Third, habitual residence may continue during temporary absences, but will be lost when a person leaves a place with a settled intention not to return to the place.Footnote ¹²⁸ According to the 2010 Chinese PIL, habitual residence in two or more places may be possible. Furthermore, a person may have no habitual residence at all.Footnote ¹²⁹ In addition, the location of habitual residence easily produces a divergence of opinions.

In the Chinese domestic case of Shi v Fu in 1984, the plaintiff sued the defendant over debt disputes in the Yutao People's Court in Yutao city, Zhejiang Province. The Court accepted the case, claiming jurisdiction based on the defendant's habitual residence in Yutao. The defendant objected because his permanent residence or domicile was located in Cixi city, Zhejiang Province. Although he had lived in Yutao for several years, he had often changed residence to different locations in Yutao city, and the time that he had lived in the last residence had not yet lasted for one year. During the trial, two divergent opinions emerged among three judges. One view was that Yutao should not be considered the defendant's habitual residence because he had not lived in the last place for one year. The two other judges held that Yutao should be considered the defendant's habitual residence because his different residences in Yutao were subject to the jurisdiction of the Court. Therefore, the Court ruled that the defendant's habitual residence was in Yutao, and that the court had the jurisdiction over the case.Footnote ¹³⁰

Fourth, habitual residence should be distinguished from ‘residence’. These are different concepts according to the 2010 Chinese PIL.Footnote ¹³¹ The adjective ‘habitual’ indicates not only the duration of residence, but also the quality of residence. These requirements have been common criteria throughout the world. In Europe, ‘in determining whether a residence is habitual, account is to be taken of the duration and the continuity of the residence as well as of other facts of a personal or professional nature which point to durable ties between a person and his residence.’Footnote ¹³² Further, ‘the voluntary establishment of a residence and a person's intention to maintain it are not conditions of the existence of a residence or a habitual residence, but a person's intentions may be taken into account in determining whether he or she possesses a residence or the character of that residence.’Footnote ¹³³ In Australia, the Court of Appeal has pointed out that habitual residence is primarily a question of fact which should be decided by reference to the circumstances in each particular case.Footnote ¹³⁴

However, one case involving habitual residence demonstrates that Chinese courts might follow a different practice.Footnote ¹³⁵ In Bian v Bian,Footnote ¹³⁶ the plaintiff and the defendant were Chinese individuals who studied in Japan in 1993. They registered to marry in Japan in 1999. In 2002, both of them gained Japanese nationality. The plaintiff worked for a Japanese company and in April 2005 his company assigned him to work in Beijing, China. The defendant also returned to Beijing with the plaintiff. Their Chinese visas expired on March 14, 2007. In January 2007, the plaintiff, Mr. Bian, had pleaded for divorce in the Chaoyang District People's Court, Beijing. The defendant claimed that they had not settled down in Beijing, and that they just temporarily resided in Beijing because of the plaintiff's work. Neither of them had yet obtained the right to permanent residence in China. They had booked return flights to Japan on April 3, 2007. Therefore, the defendant argued, Beijing was not their domicile or habitual residence, and the Court did not have jurisdiction over the case.

The Court dismissed the plaintiff's action because the valid period of the couple's residency and of the plaintiff's job in China would soon expire, and the plaintiff and the defendant could no longer reside in China. In addition, the plaintiff and the defendant were both Japanese citizens, who had only resided in China temporarily due to the plaintiff's job. The Court ruled that it had no jurisdiction over the plaintiff's suit. In its ruling, habitual residence was not considered or discussed. However, according to the Civil Procedure Law of China,Footnote ¹³⁷ a civil lawsuit brought against a citizen is subject to the jurisdiction of the court located in the place where the defendant has his or her domicile. If the defendant's domicile is different from his or her habitual residence, the lawsuit shall be under the jurisdiction of the court located in the place of the defendant's habitual residence.Footnote ¹³⁸ The 1992 Opinions further provide that if both husband and wife have left their domicile for more than one year, the case filed by one party shall be decided by the court at the place of the defendant's habitual residence. If no place of habitual residence exists, the case shall be under the jurisdiction of the court at the place where the plaintiff resides at the time of filing the complaint.Footnote ¹³⁹ Therefore, in Bian v Bian, if the habitual residence of the plaintiff had been determined to be in China, the Court would have had jurisdiction over the case.

According to Chinese laws, and as stated previously, the decisive factor in establishing habitual residence in China is only that the person has consecutively resided in a place for over one year; the duration is counted from the time when he/she left the established domicile to the time of complaint, except for the case when the person is hospitalized.Footnote ¹⁴⁰ In the Bian case, the plaintiff and the defendant had lived in China for almost two years. If the Court had considered only one year to be ‘an appreciable period of time’,Footnote ¹⁴¹ and not considered any ‘settled intention’, the habitual residence of Mr Bian should have been established in China.Footnote ¹⁴² The evidence of intention may be important in a particular case, but should not be essential in ascertaining a person's habitual residence.Footnote ¹⁴³

In addition, it should be noted that the complexity of a child's habitual residence has never been tested in a Chinese court. Usually, a child's habitual residence depends on the circumstance of the child's parent or other principal caregiver with whom the child lives.Footnote ¹⁴⁴ However, such a situation detracts from the factual nature of habitual residence, because it adopts a parent-centred rather than a child-centred approach. If a child's parents have divorced, and each parent has a different habitual residence, how is the habitual residence of the child established if the child often changes residence to live with his or her mother or father? At what age may a child choose his or her own habitual residence? And what factors will be different from adults in considerations such as the requirements of actual residence and of settled purpose? The abode may be relatively easy to determine by reference to a child's own actual residence, but what about the settled purpose? Is the settled purpose determined by reference to the child's own intentions, or to the intentions of the person or persons who have parental or guardian responsibilities for the child? These issues have been widely discussed and decided by foreign courts,Footnote ¹⁴⁵ but have not yet been adjudicated by Chinese courts.