Recent Court of Appeal Decision Reinforces Importance of Fairness in International Divorce Cases

For families with connections across more than one country, divorce proceedings can quickly become more complex. Questions around where a divorce should take place, and which country’s laws should apply, can have a significant impact on the financial outcome for both parties. 

Ferrara v Ferrara

A recent decision from the Court of Appeal in the case of Ferrara v Ferrara provides important clarity on how the courts approach these issues, particularly in relation to domicile and forum disputes. 

Where Should the Divorce Be Heard?

The case involved a couple with links to both England and Italy. Although the family had lived in Italy since 2019, the wife argued that she remained domiciled in England and that the English courts were the appropriate place for the divorce and financial remedy proceedings to be dealt with. 

The husband challenged this position, arguing that Italy was the more appropriate forum. However, the Court of Appeal dismissed the appeal and confirmed that the wife remained domiciled in England, despite the family’s long-term residence abroad. 

Why Domicile Is Difficult to Change

The judgment serves as a strong reminder that domicile is not easily changed. In legal terms, a domicile of origin remains in place unless there is clear evidence that a person has both abandoned that domicile and formed a settled intention to live permanently or indefinitely elsewhere. Simply living abroad for a number of years will not, in itself, be enough. 

The court reaffirmed the long-established principle that domicile can be “sticky”. That distinction is particularly important in international family law cases, where jurisdiction can have major consequences for the financial outcome following divorce. 

The Spiliada Test Explained

The Court also considered which country was the more appropriate forum for the proceedings. In doing so, it applied the well-known two-stage “Spiliada” test, asking: 

whether another forum was clearly more appropriate; and 

if so, whether justice nonetheless required the case to continue in England. 

Why Fairness Was Central to the Judgment

What makes this decision especially significant is the Court’s emphasis on substantive fairness. The analysis was not limited to geography or procedural convenience. The Court examined the practical financial consequences for the parties and recognised that the Italian marital regime would have substantially restricted the wife’s financial claims when compared with the broader powers available to the English courts. 

The risk of a materially unfair outcome was therefore a legitimate factor in retaining the case within the English jurisdiction. 

The Financial Impact of Jurisdiction

This is an important development for anyone involved in a cross-border divorce or separation. Forum disputes are rarely just technical legal arguments; they can directly affect financial security, access to assets, and long-term stability following the breakdown of a marriage. 

Whilst this is an English Court of Appeal decision and is not binding on the courts in Scotland it could be persuasive.  

What This Means for Cross-Border Divorce Cases

The decision in Ferrara confirms that the courts will continue to take a flexible and fairness-driven approach when dealing with international family law disputes. Outcome-based considerations are central to these decisions and the courts may be reluctant to defer to another jurisdiction where doing so could lead to substantive injustice. 

For families with international connections, obtaining specialist legal advice at an early stage is essential. Decisions around jurisdiction and domicile can shape the entire course of proceedings and, ultimately, the outcome achieved.