Financial Proceedings & Domicile of Choice
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Claire Andrews
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Financial proceedings and domicile of choice: the party’s intentions are what matter
A common issue arising on divorce where there are cross border considerations is whether one party can pursue proceedings in the courts in England and Wales. Key to that question is the domicile of choice of the party concerned, and how it is determined.
The Court of Appeal has recently provided important clarity on this critical issue. It makes clear that a party is not required to show a clear plan to return to the domicile of choice for it to be retained.
It is sufficient that there is an intention to return – even if they have lived abroad for a lengthy period.
What’s the background?
The parties in Ferrara v Ferrara [2026] EWCA Civ 512 are Mrs Ferrara who was born in Australia and Mr Ferrara born in Italy. The parties lived in London between 1992 and 2019. They met in 2004 and married in Italy in 2008; but carried on living in London until 2019 when they relocated to Milan. The parties signed a “Separazione dei Beni” agreement (a separation of property agreement) at the marriage ceremony. Mrs Ferrara did not speak or read Italian and therefore she unknowingly entered into an agreement that she would not be entitled to any of Mr Ferrara’s assets if the couple divorced in Italy.
The marriage broke down four years later in 2023. Mr Ferrara accepted Mrs Ferrara’s proposal for mediation to resolve financial matters, but they failed to reach an agreement. Mrs Ferrara issued proceedings in England; Mr Ferrara commenced proceedings in Italy and applied for the English proceedings to be stayed on the grounds of lack of jurisdiction.
The Court of Appeal had to determine the critical issue of whether Mrs Ferrara had lost her English domicile of choice at the time of her divorce application. If she had, she would not have been able to proceed with her financial claim in the English courts.
Domicile
The Court of Appeal ruled that Mrs Ferrara could proceed with her divorce and financial remedy proceedings in England, even though the family had ceased to live in England in 2019.
The trial judge had rightly found that Mrs Ferrara did not intend to live indefinitely in Italy; and that she intended to return to England – it was not necessary to have a clear plan to return, in order for it to be retained. The nature of her intentions between 2019 up to the date of her divorce application were the critical issue.
It was clear that she had not wanted Mr Ferrara to sell the former marital home and wished to return to live there with the children. Crucially, the judge gave particular weight to Mrs Ferrara’s evidence as she was more “truthful and reliable” than Mr Ferrara – who insisted they had clearly intended that they were closing the “English chapter” of their life.
Mrs Ferrara’s evidence included:
- she had not wanted to leave London for Milan in the first place;
- she did not speak Italian;
- she had long-standing connections with England spanning most of her adult life;
- the former matrimonial home was in Mr Ferrara’s sole name and she was unable to stop him selling it;
- she could afford ‘equality of arms’ in legal representation in England but not in Italy;
- the Italian court’s powers would be limited to maintenance only, with no power to make property or lump sum awards, or a legal services protection order;
- the separation of assets agreement could be enforced in the English courts, but not in Italy;
- if Mrs Ferrara was not permitted to continue proceedings in England, she could make a future claim under part III Matrimonial and Family Proceedings Act 1984, resulting in unnecessary duplication and delay.
For his part, Mr Ferrara failed to convince the courts that Italy was the “more appropriate jurisdiction” to determine all issues between them.
What does this mean?
Issues of domicile and jurisdiction are critical because the reality is that the English courts may well be more generous and flexible than the courts in other jurisdictions. Living for a substantial period of time in another jurisdiction does not necessarily mean domicile of choice has been lost. It is the party’s intentions that are the crucial matter.
If you’re contemplating a separation, or you’re already involved in proceedings where the issue of domicile may be raised, it is important to gather evidence that will support any arguments around domicile of choice.
The Court of Appeal has made clear that if a party can reliably provide evidence that they intend to return to this jurisdiction at some point in future, they retain their English domicile of choice.
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The specialist divorce and financial settlements team at Osbornes Law represents parties in complex domestic and cross-border financial matters. We help clients secure fair outcomes on property, assets, and maintenance, with a strong focus on protecting long-term financial stability. Whether negotiations or court proceedings are required, our team offers practical guidance and robust representation at every stage. Contact us by:
- completing our online enquiry form;
- or calling us on 020 7485 8811
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