Retaining an English Domicile of Choice After Relocation: Subjective Intention, “Permanent or Indefinite” Residence, and Part III MFPA 1984 as a Powerful Anti-Stay Factor

Case: Ferrara v Ferrara (Rev1) Neutral citation: [2026] EWCA Civ 512
Court: Court of Appeal (Civil Division) (Moylan, Arnold, Miles LJJ)  |  Date: 29 April 2026
Appeal from: High Court, Family Division (Garrido J), order dated 11 July 2025

1. Introduction

This appeal concerned (i) jurisdiction to entertain an English divorce and consequential financial remedy proceedings, founded on the wife’s domicile, and (ii) whether, notwithstanding English jurisdiction, the English proceedings should be stayed in favour of ongoing proceedings in Italy under the stay regime in the Domicile and Matrimonial Proceedings Act 1973 (“DMPA 1973”), section 5(6) and Schedule 1 paragraph 9.

The parties had lived for many years in London, moved as a family to Milan in 2019, and remained living there at the time of proceedings. A critical practical driver of the dispute was the very different financial consequences available in Italy and England. In particular, a separation of property agreement signed at the marriage ceremony in Italy meant (on the Italian expert evidence) that in Italy there would be no division of assets and the Italian court would be confined to maintenance, with no power to make property adjustment or lump sum orders and no power to make a legal services payment order (“LSPO”).

The husband appealed the High Court’s determination that the wife was domiciled in England and Wales when she issued her divorce application, and the refusal to stay the English proceedings in favour of Italy.

Key issues on appeal
  • Domicile: Had the wife retained (or lost) an English domicile of choice by February 2024?
  • Forum / stay: Had the husband shown Italy was clearly the more appropriate forum under the DMPA 1973?
  • Reasons: Was the first instance judgment so deficient that it could not stand?

2. Summary of the Judgment

Issue Court of Appeal outcome Core holding
Domicile Appeal dismissed The judge applied the correct test. His use of “permanently” did not show legal error. The findings that the wife viewed her Italian residence as temporary and intended to return were open on the evidence, particularly given strong credibility findings.
Forum / stay Appeal dismissed The refusal of a stay was within the judge’s evaluative discretion. Even if some factors were irrelevant, the conclusion stood because powerful factors supported England, notably the inability of Italy to determine all financial issues and the likely availability of Part III MFPA 1984 claims if Italy proceeded.
Adequacy of reasons Challenge rejected The judgment was concise and could have been fuller, but it sufficiently identified determinative issues, made key findings, and explained the basis for conclusions.

Moylan LJ gave the lead judgment. Arnold LJ agreed in the result but considered some of the factors relied on below were irrelevant and expressed a (provisional) view narrowing the relevance of “historic connections” in forum analysis. Miles LJ preferred not to decide that broader legal issue because it was inadequately argued and unnecessary to the outcome.

3. Analysis

3.1 Precedents Cited and How They Shaped the Decision

(A) Adequacy of reasons and appellate restraint

  • English v Emery Reimbold & Strick: reaffirmed that reasons need not address every argument; they must show the basis on which the judge acted and enable understanding of why the decision was reached. The Court used this to reject the “seriously deficient” attack where determinative findings were identifiable.
  • Piglowska v Piglowski and Simetra Global Assets Ltd v Ikon Finance Ltd: reinforced a restrained approach to appellate interference and the “building blocks” concept—what matters is that the judgment discloses the essential steps.
  • Volpi v Volpi: deployed to rebut the suggestion that omission of particular evidence implies it was overlooked; and to warn against “narrow textual analysis” of judgments.
  • Fage UK Ltd v Chobani UK Ltd and Lifestyle Equities CV v Amazon UK Services Ltd (with reference to In re Sprintroom Ltd): emphasised that appellate restraint applies to primary facts, inferences, and evaluative decisions; intervention requires an identifiable flaw (logic gap, inconsistency, failure to consider a material factor) undermining the conclusion.
  • Re R (Children) (Reunite International Child Abduction Centre intervening): used by analogy for multi-factorial evaluations: if the correct principles are applied, appellate challenge usually fails unless the conclusion was not reasonably open.

(B) Domicile: acquisition, retention, and intention

  • Barlow Clowes International plc v Henwood: the central authority summarising domicile principles adopted at first instance and endorsed on appeal. The Court relied on it for: (i) the subjective nature of intention; (ii) the rule that domicile of choice is lost only when residence ceases and intention to reside permanently or indefinitely is given up; and (iii) the need for “cogent and clear evidence” (see also Dicey discussion).
  • IRC v Bullock and Mark v Mark: used to frame intention as “real” / “bona fide” rather than merely asserted.
  • Udny v Udny, In the Estate of Fuld decd (No.3), Henderson v Henderson: background authorities underscoring domicile’s seriousness and the need to satisfy the “judicial conscience”.
  • Ramana v Kist-Ramana: cited extensively for its discussion of contingencies and the “light touch” inquiry into likelihood, reinforcing that the key question is whether the intention is bona fide/real. The Court also used Ramana to support the proposition that there is no requirement for a clear plan to return in order to retain domicile.
  • AN v NO and Kelly v Pyres: referenced in argument below on “permanent” versus “indefinite” and on treating “ending his days” language as illustrative rather than a rigid test.
  • Sekhri v Ray: used (via Dicey) to confirm that a trial judge need not list every factor; it is enough to identify prominent, determinative elements.
  • In re Flynn, decd (No 1) and Qureshi v Qureshi: used for the helpful “sine animo revertendi” lens—whether residence abroad is without intention to return—informing how intention may “wither away”.

(C) Forum non conveniens / stay in matrimonial proceedings

  • De Dampierre v De Dampierre: treated as key authority that the DMPA 1973 stay provisions should be applied in the same way as the forum non conveniens principles. Moylan LJ read it as supporting a broad evaluation including historical connections; Arnold LJ read it differently.
  • Spiliada Maritime Corp v Cansulex Ltd: the foundational forum non conveniens framework (natural forum; connecting factors; “clearly more appropriate”; second-stage justice inquiry). Arnold LJ relied heavily on Spiliada to argue that connecting factors focus on the present ability to try the case suitably, and thus historic connections may be irrelevant.
  • Chai v Peng and the Court of Appeal decision Peng v Chai: used to support the broad discretionary approach and that factors need not be confined to those directly relating to litigation (per Macur LJ, noted by Moylan LJ).
  • S v S (Divorce: Staying Proceedings): cited by Moylan LJ to support surveying “general connections” with rival jurisdictions.
  • ER v BF (Forum Conveniens): used as a direct analogy: it is a significant advantage if one forum can resolve all financial issues in one set of proceedings, avoiding residual litigation (including under Part III MFPA 1984).
  • Unwired Planet International Ltd v Huawei Technologies (UK) Co Ltd: relied on by Arnold LJ (by analogy) to emphasise that forum analysis presupposes both fora have jurisdiction; if an alternative forum cannot determine the dispute, that weighs heavily against a stay.
  • The classic Spiliada lineage references appear (e.g. MacShannon's case, The Abidin Daver, and the Société du Gaz concern), and Crédit Chimique v. James Scott Engineering Group Ltd. is mentioned as an example of governing law as a connecting factor.

(D) Part III MFPA 1984 and “juridical advantage”

  • Potanin v Potanina: used to explain the Part III gateway—leave requires a claim with a “real prospect of success”, analogous to other contexts. This framed the Court’s view that Part III cannot be brushed aside as speculative where (as here) substantive financial issues would remain unresolved abroad.
  • Spiliada principle that mere “better outcome” is not decisive was accepted, but the Court distinguished between (i) forum shopping for a higher award and (ii) a forum’s inability to determine core issues at all (e.g., property adjustment / lump sums / challenge to a marital property agreement).

3.2 Legal Reasoning

(A) Domicile: “Permanent” vs “Indefinite” and the centrality of subjective intention

The husband’s principal domicile attack was that the judge wrongly treated “permanent” intention as the standard, rather than “permanent or indefinite”. Moylan LJ accepted the conceptual distinction—“indefinite” does not necessarily mean “permanent”—but held that, on the facts, the first instance judge had not materially misdirected himself.

Why “permanent” did not sink the domicile reasoning: the Court construed the judgment contextually: counsel below had blurred “permanent” and “indefinite”; the judge’s focus was on the wife’s lack of settled intention to remain in Italy; and, crucially, the judge made an express finding that she intended to return to England and viewed Italian residence as temporary.

The Court emphasised that the “ultimate fact” in domicile disputes is a person’s intention (a “distinctly subjective” inquiry). The credibility findings therefore mattered: the wife was accepted as “truthful and reliable”, while the husband was treated as unreliable absent corroboration. This credibility platform enabled the judge to accept the wife’s evidence that she had not abandoned the intention to reside in England permanently or indefinitely.

The Court also dealt with an evidential point frequently arising in domicile litigation: the alleged need for corroborative “action” rather than “self-serving statements”. The Court did not treat Arden LJ’s observation in Barlow Clowes International plc v Henwood as imposing a rigid corroboration requirement. Instead, it held that the judge was entitled to accept the wife’s evidence of intention, especially where it was consistent with surrounding evidence (e.g., reluctance to move, objection to sale of the London home, and the overall “anchor” of her adult life in England).

(B) Retention of domicile of choice: no need for a detailed “return plan”

The Court endorsed the proposition (consistent with Ramana v Kist-Ramana) that retention of domicile does not require a “clear plan” to return. It is enough that the person has a bona fide intention to return and that the foreign residence is viewed as temporary, even if the timing is uncertain. The husband’s late attempt to reframe the intention as too “vague” or contingent failed because it had not been litigated below and would have required proper evidential exploration.

(C) Forum / stay: “clearly more appropriate forum” and the weight of incomplete remedies abroad

The stay application required the husband to show that Italy was clearly the more appropriate forum. The Court treated this as a broad evaluative exercise under DMPA 1973 Sch 1 para 9, with the key question being whether the judge’s decision was reasonably open.

The most legally significant reasoning was the Court’s emphasis on the practical consequences of the Italian process:

  • The Italian court’s powers (on the expert evidence) were materially limited by the separation of property agreement and by Italian remedial constraints (maintenance-focused; no property adjustment or lump sum; no LSPO).
  • If the English proceedings were stayed and Italy proceeded to divorce, it was strongly likely that the wife would still bring (and succeed at the permission stage in) a Part III MFPA 1984 claim in England to address unresolved financial issues.
Doctrinal point: the Court distinguished between a mere “juridical advantage” (higher award) and a forum’s inability to address central categories of relief at all. The latter supports refusing a stay because it points to duplication, delay, and incomplete resolution.

(D) The “historic connections” controversy: an unresolved fault-line

The judgments reveal a developing tension about the legitimate scope of connecting factors in matrimonial forum disputes:

  • Moylan LJ took the view that the factors are wide and may include the history of the marriage and the parties’ connections with each jurisdiction, relying on the breadth of the statutory language (“all the factors appearing to be relevant”) and authorities such as De Dampierre v De Dampierre, Peng v Chai, and the broad survey approach described in S v S (Divorce: Staying Proceedings).
  • Arnold LJ expressed the present (but expressly “provisional”) view that the inquiry is essentially Spiliada-based and should focus on present suitability: historic connections that no longer exist are “difficult to see” as relevant to trying the dispute more suitably. On his analysis, parts of the summary in SA v FA (especially “not just those relating to the litigation”) were not a correct statement of the law, and several of the judge’s factors were irrelevant.
  • Miles LJ declined to express a view because the point was inadequately raised and argued, and the appeal could be resolved without deciding it.

Importantly, the Court did not allow this controversy to affect the result. Both Moylan LJ and Arnold LJ held that even removing disputed factors, the refusal of a stay was sustainable because of the strength of the “incomplete remedies / Part III duplication” considerations.

3.3 Impact

(A) Domicile disputes in family jurisdiction challenges

  • The decision reinforces that domicile turns on subjective intention, and that first instance credibility findings can be determinative. Appellate courts will be slow to interfere absent a clear misdirection or an irrational conclusion.
  • It provides practical reassurance that a judgment will not be overturned merely because a judge used “permanent” language where the correct test is “permanent or indefinite”, if the reasoning as a whole shows the correct inquiry was undertaken.
  • It underlines that retention of domicile does not require a concrete return timetable; intention can be bona fide despite uncertainty.

(B) Forum stays where foreign proceedings cannot determine capital claims

  • The case strengthens the proposition (consistent with ER v BF (Forum Conveniens)) that a forum’s ability to determine all financial issues in one suite of proceedings is a weighty factor against a stay.
  • It highlights Part III MFPA 1984 as a practical “shadow” over stay applications: where a foreign forum cannot address core financial claims (or cannot permit challenge to a marital agreement), English courts may treat duplication and the likely need for Part III as strongly militating against a stay.
  • LSPO availability can legitimately factor into “equality of arms” considerations, particularly where expert evidence shows no equivalent mechanism abroad.

(C) The unresolved issue: are historical connections relevant connecting factors?

  • The Court of Appeal exposed a significant doctrinal question and offered competing “provisional” views. The point remains open for fuller argument in a future case.
  • For practitioners, the immediate lesson is tactical: if irrelevance of historical factors is to be a ground of challenge, it must be clearly pleaded and fully argued with the proper authorities.

4. Complex Concepts Simplified

  • Domicile (origin vs choice): Domicile is a legal “home base” concept. A person starts with a domicile of origin (usually from a parent). They can acquire a domicile of choice by (i) living in a country and (ii) intending to live there permanently or indefinitely. A domicile of choice is lost only when both residence ends and the intention to live there permanently or indefinitely is given up.
  • “Permanent” vs “indefinite”: “Permanent” implies staying for life; “indefinite” means staying without a fixed end-date, even if not necessarily forever. In domicile law, either suffices.
  • Forum non conveniens / “clearly more appropriate forum”: Even if England has jurisdiction, proceedings can be stayed if another country is the clearly better place to try the case—more suitable for parties, evidence, and justice. The applicant bears the burden.
  • Part III MFPA 1984: A mechanism allowing an English financial remedy claim after a foreign divorce, but only with permission (“leave”). If foreign proceedings cannot fairly or fully address finances, Part III may become the route to obtain relief in England.
  • LSPO and “equality of arms”: An LSPO is an English order requiring one party to fund the other’s legal costs so they can participate effectively. Lack of an equivalent abroad can be relevant to forum fairness.
  • Lis pendens: The idea that parallel proceedings are ongoing in two jurisdictions; courts then consider case management, stays, and which forum should proceed first.

5. Conclusion

Ferrara v Ferrara (Rev1) [2026] EWCA Civ 512 is a substantial Court of Appeal endorsement of two practical propositions in cross-border family litigation:

  • Domicile retention after relocation is principally an intention question. Trial judges’ credibility findings matter, and appellate courts will not readily disturb them. A lack of a “clear return plan” does not, by itself, defeat retention of an English domicile of choice.
  • Forum stays are difficult to obtain where the foreign court cannot determine the financial dispute comprehensively. The likely need for subsequent English proceedings—especially via Part III MFPA 1984—is a powerful reason to refuse a stay.

The decision also surfaces an important but unresolved question about the extent to which “historical” connections properly count as connecting factors in the stay analysis under the DMPA 1973. Although it did not affect the outcome here, the division of views between Moylan LJ and Arnold LJ signals a point ripe for authoritative clarification in a future, fully-argued appeal.