| HUSBAND & WIFE — Financial provision — Agreement —Wife re-marrying shortly thereafter —Whether re-marriage constituting event invalidating consent order
Marchant v Dixon [2008] EWCA Civ 11; [2008] WLR (D) 7
CA: Ward, Wall and Lawrence Collins LJJ: 24 January 2008
Re-marriage shortly after the making of a consent order which had provided for payment of a lump sum to capitalise a wife’s periodical payments did not constitute a “Barder event” invalidating the order.
The Court of Appeal so stated (Wall LJ dissenting) when dismissing the appeal of the husband, John Bradford Dixon, from a decision of Judge Collis, made in divorce proceedings, in the Birmingham County Court on 6 June 2007, by which the judge refused to set aside a consent order made by District Judge Wall on 25 April 2006.
Judge Collis found that the fact of re-marriage by the wife, Josephine Mary Lindsey Marchant, shortly after the making of the consent order, which had, inter alia, provided for payment of a lump sum to capitalise her periodical payments, did not constitute a “Barder-type event” (Barder v Caluori [1988] 1 AC 20) invalidating the basis of, or fundamental assumption underlying, the order. The judge found that the husband believed that he had been lied to as to the wife’s intentions about cohabitation and re-marriage, but he further found that the wife had answered honestly in the applicable statement accompanying the application for a consent order, and there was no deceit. On appeal, the husband contended that the judge should have found that a Barder-type event had occurred.
WARD LJ said that the question was whether the first Barder condition was met, viz “that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made”: Barder’s case [1988] 1 AC 20, 43 b-d, per Lord Brandonof Oakbrook. The circumstances in which Barder’s case could be relied upon were infinitely variable, and no great help could be obtained from analysis of fact-specific events discussed in previously decided cases. In the instant case, an additional question arose, viz how far the possibility of re-marriage could be treated as a “special factor”; and the answer was that the possibility was not a special factor; and the statement of the wife could not be construed as if it were a promise not to marry at any future date. The risk of re-marriage was a risk which the husband had to bear, and that conclusion accorded with orthodoxy: see Smith v Smith [1976] Fam 18, 23, per Latey J; and H v H (Family Provision: Re-marriage) [1975] Fam 19, 13, per Sir George Baker P. The payment of a lump sum carried risks for each party but there were no special features to the case, which was a run-of-the-mill compromise. The applicable test had to be objective and the court would not embark upon an analysis of the parties’ subjective hopes and fears; and, applying such a test, it was unnecessary that there be an assumption that, for an indefinite period to be measured in years rather than months or weeks, the wife would not re-marry, and that if she should do so within a relatively short time after the agreement had been made the deal would founder. Accordingly, no Barder event had occurred.
W
ALL LJ gave a dissenting judgment. LAWRENCE COLLINS LJ gave a judgment concurring with WARD LJ.
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