Effect of wife’s remarriage

Dixon v Marchant [2008] EWCA Civ 11 24 January; SJ 5 February p28

The parties divorced in 1993 when a periodical payments order was made. In 2005, the husband informed the wife that he was about to draw down his pension and as a result his income would be reduced. There was correspondence between the parties’ solicitors regarding capitalising future maintenance during which the husband repeatedly asked if the wife was cohabiting with her long-term companion. She replied they were not cohabiting and she had no desire or intention to cohabit or remarry. A lump sum of £125,000 was agreed and a consent order made in those terms. In 2006, the wife married. By a 2–1 majority, the Court of Appeal refused the husband’s application to set aside the consent order on the basis that new events had occurred which invalidated the basis and fundamental assumption upon which the order had been made. The majority of the Court held there were no special features to the case, as in Barder v Caluori (1988) AC 20. The husband’s persistent enquiries were to quell his suspicion that the wife was cohabiting and not to protect himself from the risk of her remarriage. The wife’s representation that she had no desire to remarry was a statement of her present intention at the time and the trial judge had found her to be open and honest. The risk of remarriage was a risk, which the husband had to bear. There was no basis or fundamental assumption that, for an indefinite period to be measured in years rather than months or weeks, the wife would not remarry. There was nothing in the agreement, which would have alerted the judge to the parties intending to give the husband any right to claw back any part of the lump sum if the wife should remarry soon after the payment was made. Nor was there any such term implied in the agreement. The importance of finality in clean break cases made it clear that the application of the Barder principle is reserved for exceptional cases. The facts of the present case fell far below the necessary standard.