Ferrara v Ferrara [2026] EWCA Civ 512

Judgment date: 29 April 2026

https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/512

Moylan LJ giving the lead judgment with Arnold LJ and Miles LJ agreeing.

Appeal from a decision by Garrido J. Domicile in England retained after relocation to Italy, and stay in favour of Italian proceedings refused.

Background

Mrs Ferrara (50) is a model and homemaker. She was born in Australia in 1974 and is an Australian citizen. Mr Ferrara (63) is a financier and founder/shareholder of a private equity fund. He was born in Italy and is an Italian citizen.

The parties met in London in 2004. H had been living here since 1992, the same year that W arrived in London with her parents. W had also previously lived in London as a child.

H and W started living together in Chelsea in 2006. Their former matrimonial home in Belgravia was purchased the following year and they married in Italy on 5 April 2008. A separation of property agreement, signed at the Italian wedding, meant that in Italy, there could be no division of assets, only maintenance. The agreement could not be challenged in Italian courts.

H and W resumed life in London immediately after the marriage. Their two children were born in London and hold British, Australian, and Italian citizenship.

It was not until April 2019 that H returned to live in Milan, followed in the summer of that year by W and the children. Their Belgravia house was sold in early 2023.

Despite the breakdown in their relationship, at the time of hearing H and W continued to live under the same roof in Milan with their two children (then aged 10 and 13).

W issued divorce and financial remedy proceedings in England, but H commenced proceedings in Italy and applied to stay the English proceedings, arguing Italy was the more appropriate forum.

High Court judgment

The High Court found that W had retained a domicile of choice in England, and refused to stay the English proceedings, holding that England was not clearly an inappropriate forum.

H’s Appeal

The husband advanced seven grounds, grouped into three themes:

1. Inadequate judgment (grounds 5, 6, and 7 of H’s appeal)

The first-instance judgment was ‘seriously deficient’, failing to analyse the law properly or resolve factual disputes.

2. Domicile (grounds 1 and 2 of H’s appeal)

The judge was wrong to have found that the wife had retained an English domicile, and in particular:

• The judge had wrongly required a settled intention to live in Italy permanently (rather than indefinitely).
• The judge had ignored evidence pointing to a permanent relocation to Italy.

3. Forum (grounds 3 and 4 of H’s appeal)

Italy was plainly the more appropriate forum, given factors such as that:

• the family had lived in Italy since 2019 and had no home in London;
• Italian courts were dealing with children and interim matters;
• W was pursuing a wide range of interim financial applications in Italy, including for rent, spousal and child maintenance and school fees.

The Court of Appeal judgement

H’s appeal was dismissed on all grounds. The Court of Appeal responded to his arguments as follows.

1. Inadequate judgment

The Court of Appeal did not accept the submission that the judge had failed to set out or analyse the law adequately, and held that factual and evaluative findings may only be overturned if plainly wrong or based on legal error.

Following English v Emery Reimbold, judges are not required to address every argument or item of evidence, provided that the reasons explain the decision. However, Moylan LJ did note that the judgment was very concise and that ‘[i]ts conciseness in the circumstances of this case made it vulnerable to being challenged’; [106].

2. Domicile

The key issue in the case was whether the wife had lost her domicile in England under the formulation of Rule 15 in Dicey, Morris and Collins on the Conflict of Laws, 16th ed 2022 at [6R-077] that

‘A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.’

Whilst permanently and indefinitely are presented as separate options in this rule, based on the way the words permanently and indefinitely were used during the hearing, Moylan LJ considered that the judge was not using permanently to the exclusion of indefinitely in his judgment, but was effectively treating the words ‘permanently’ and ‘indefinitely’ as synonymous.

Moylan LJ referred to Qureshi, at p.191C–D, that:

‘given the necessary fact of a physical departure from the country of domicile of choice, for its abandonment the animus that must be shown is not necessarily non revertendi; it is sufficient that the residence in the new country is sine animo revertendi; and in this connection there may be a “withering away” of an intention to return to the country of the domicile of choice’

He noted at [82] that:

‘This formulation, without the intention of returning, is a useful guide when the court is determining whether the intention to make a country a person’s permanent or indefinite residence has been lost.’

Moylan emphasised that, as identified by Arden LJ in Barlow Clowes at [68], the ‘ultimate fact in issue was [the wife’s] intention’, which is a subjective assessment. Accordingly, the judge was entitled to rely on the wife’s subjective intention, which the judge found to be a temporary move to Italy, made reluctantly and under pressure, with a continuing intention to return to England. Evidence to support these findings included her longstanding English life, her resistance to selling the London home, and her credible oral evidence.

3. Forum

It was held that the judge had correctly identified and applied the test: whether Italy was clearly the more appropriate forum.

Moylan LJ disagreed with H’s submissions that the judge had taken into account irrelevant factors in deciding that Italy was not the more appropriate forum. Arnold LJ disagreed with Moylan LJ, considering that some factors taken into account were irrelevant, but nevertheless agreed that Italy had not been shown to have been the clearly more appropriate forum and that ‘removing the irrelevant factors from the scales would not materially alter the balance’; [183].

Key factors justifying England as the appropriate choice of forum included that:

• England could resolve all financial issues in one set of proceedings;
• Italy could not divide capital or address the marital agreement;
• a Part III claim in England was likely inevitable, meaning duplicate litigation if England stayed proceedings;
• the wife could participate effectively in English proceedings, unlike in Italy;
• England allowed legal services payment orders, unlike Italy.