Ferrucio Ferrara v Caroline Frances Ferrara

A domicile of choice is lost only when a person both ceases to reside in the country and ceases to intend to reside there permanently or indefinitely. The inquiry is subjective, and cogent and clear evidence is required to establish a change. A temporary residence abroad, coupled with a genuine intention to return, may retain the domicile; no detailed return plan is required.

A matrimonial stay requires an available alternative forum with competent jurisdiction that is clearly more appropriate. Relevant considerations may include connections, convenience, remedies and whether one forum can resolve all financial issues. The inability of the foreign court to address capital claims, together with possible duplication under Part III of the Matrimonial and Family Proceedings Act 1984, may strongly support retaining English proceedings.

The parties married in Italy after spending most of their relationship in England. They moved with their children from London to Milan in 2019. After the marriage broke down, the wife issued divorce and financial remedy proceedings in England, while the husband commenced proceedings in Italy and sought a stay of the English proceedings.

Garrido J found that the wife was domiciled in England when she issued her application and refused a stay, holding that the husband had not shown Italy to be clearly the more appropriate forum. The appeal challenged the adequacy of the judgment, the domicile finding and the forum decision. The central issues were whether the wife had lost her English domicile of choice and whether Italy was clearly the more appropriate forum for resolving the parties’ financial dispute.

1. Appeal dismissed. The Court of Appeal unanimously upheld the findings on domicile and forum.
2. The judge below had sufficiently explained his conclusions. A judgment need not address every argument or item of evidence. It must identify the critical issues and provide reasons enabling the parties and the appellate court to understand the decision. The Court of Appeal applies the same restrained approach to primary facts, inferences and evaluative decisions. It does not conduct the evaluation afresh or interfere merely because it might have reached a different conclusion. Intervention requires a decision not reasonably open to the judge or an identifiable flaw in the reasoning. This approach was reflected in English v Emery Reimbold & Strick [2003] EWCA Civ 605, Volpi v Volpi [2022] EWCA Civ 464 and Lifestyle Equities CV v Amazon UK Services Ltd [2024] UKSC 8.
3. For domicile, residence and an intention to reside permanently or indefinitely are required for a domicile of choice. It is abandoned only by ceasing residence and ceasing the intention to reside there permanently or indefinitely. Permanent and indefinite are alternatives. No clear plan to return is required. The decisive issue is the person’s subjective intention, assessed on the civil standard and requiring cogent and clear evidence to establish change. The judge was entitled to find that the wife regarded Italy as temporary and retained an intention to return to England.
4. The stay application was governed by section 5(6) and Schedule 1, paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973, applied consistently with Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 and De Dampierre v De Dampierre [1988] 1 AC 92. Italy had to be an available forum with competent jurisdiction and clearly more appropriate for the dispute. The scope of the remedies available in each jurisdiction was a material consideration.
5. The Italian court could not determine all the financial issues, including the enforceability of the separation of property agreement and capital claims. A possible subsequent claim under Part III of the Matrimonial and Family Proceedings Act 1984 would risk duplication and delay. These were powerful factors supporting England. Even if some historical or language-related factors relied on below were irrelevant, their inclusion did not materially undermine the overall conclusion. Arnold LJ expressed provisional additional views about the relevance of historical connections; Miles LJ declined to decide that issue.

1. Court of Appeal (Civil Division): Appeal dismissed on all grounds. The Court upheld the findings that the wife was domiciled in England and that Italy was not clearly the more appropriate forum.
2. High Court of Justice, Family Division: Garrido J’s order of 11 July 2025 declared the wife domiciled in England and Wales and dismissed the husband’s application for a stay.