בין "מקום מושב" לבין "מקום מגורים רגיל": על שימוש בחוליות קישור אישיות בחקיקה ישראלית ופרשנותן

In Israeli legislation in the field of private international law, the two dominant personal connecting factors are “domicile” and “habitual residence.” One of these connecting factors is at the heart of jurisdiction rules and/or choice of law rules in number of areas of law involving personal status, including inheritance, matrimonial property,dissolution of marriage and return of abducted children. In other words, in cases where those involved in the matter have contacts with more than one country, one of these connecting factors will determine which court has jurisdiction to decide the case and/or according to which law the dispute will be adjudicated. The purpose of this article is to examine and analyze critically the adoption of these two personal connecting factors in legislation and their application in case-law.This research is of considerable importance for a number of reasons. Firstly, the analysis in the article will show that there is no clear distinction in Israeli law between the two connecting factors and that there is lack of clarity concerning some of their characteristics. For example, it is it not clear what weight should be given to the intentions of a person or of his parents (in the case of a minor) in determining his domicile or his habitual residence.Secondly, over the law few years, the issue of the habitual residence of a minor in the context of the Hague Convention (Return of Abducted Children) Law 1991 has come before the Supreme Court on a number of occasions and the message coming from that court is neither uniform nor clear. The article points to discrepancies between the court’s declarations in relation to the meaning of this term and its application thereof in practice. In addition, perusal of comparative law reveals that there are differences between the way in which this term is applied in Israel and that in other leading countries, despite the expressed goal of uniform application of the Convention.Thirdly, recently the State of Israel signed the Hague Convention on Recognition and Enforcement of Judgments, in which the main personal connecting factor is“habitual residence” and is currently considering joining additional Hague Conventions based on this connecting factor. The article suggests lessons which might be learnt from past experience of ‘importing’ this term into Israeli legislation.Fourthly, developments over recent years require reconsideration of the use and application of personal connecting factors. For example, globalization processes have led to changes in migration patterns, which sometimes make it harder to connect a person to one country only. Similarly, there has been a growth of phenomena such as inter-country adoption and cross-border surrogacy. The questions of international jurisdiction and choice of law in cases concerning these phenomena require regulation based mainly on personal connecting factors. The article analyses the current regulation of these issues in Israeli legislation and suggests amendments.In addition to the above, analysis of the use of these connecting factors in Israeli legislation and their application in case-law reveals general problems concerning legislative processes and purposive interpretation of statutory provisions. For example,it seems that laws and amendments to laws were enacted without ensuring consistency in the drafting of laws that use the same terms and without taking into account the implications of using identical terms in different contexts or of the confusion which is liable to result from providing different definitions to the same term for the purposes of different provisions in the same law. Likewise, the article brings examples of judicial interpretation of personal connecting factors in a variety of contexts, including return of abducted children, in which the identification of the objective of the law in question is not accurate or is only partial and as a result thereof the interpretation of the connecting factor is distorted. In the light of the above, the article concludes by suggesting general lessons, which are directed to those who draft legislation and to the judiciary.