Court of Appeal
Published March 4, 2008
Marchant v Dixon
Before Lord Justice Ward, Lord Justice Wall and Lord Justice Lawrence Collins
Judgment January 24, 2008

The remarriage of a former wife soon after the making of a consent order as to financial arrangements in a divorce settlement did not necessarily invalidate that order.

The Court of Appeal so stated, Lord Justice Wall dissenting, in a reserved judgment dismissing the appeal of the husband, John Bradford Dixon, from the refusal by Judge Collis in Birmingham County Court on June 6, 2007, to set aside a consent order made in divorce proceedings by District Judge Wall on April 25, 2006.

Judge Collis found that the remarriage of Josephine Mary Lindsey Marchant shortly after the making of the consent order, which, inter alia, provided for payment of a lump sum to capitalise her periodical payments, was not an event that would invalidate the order.

The judge found that, although the husband believed that his wife had lied about her intentions as to cohabitation and remarriage, her answers in the applicable statement were honest.

Mr Peter Duckworth for the wife; Mr David Burles for the husband.

LORD JUSTICE WARD said that the question was whether new events had occurred since the making of the order which invalidated the basis, or fundamental assumption upon which the order was made: see Barder v Caluori ([1988] 1 AC 20, 43BD).

The circumstances in which Barder could be relied upon were infinitely variable, and no great help was provided by analysis of fact-specific events discussed in previous cases.

In the instant case, a further question arose, namely, how far the possibility of remarriage could be treated as a special factor and the answer was that the possibility was not a special factor.

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 remarriage was a risk which the husband had to bear: see Smith v Smith ([1976] Fam 18, 23) and H v H (Family provision: Remarriage) ([1975] Fam 19, 13).

There was no requirement for an assumption that, for an indefinite period to be measured in years rather than months or weeks, the wife would not remarry, and that, if she should do so within a relatively short time after the agreement had been made, the deal would founder.

Lord Justice Lawrence Collins gave a concurring judgment and Lord Justice Wall gave a dissenting judgment.

Solicitors: Mills & Reeve, Birmingham; Divorce and Family Law Practice, Birmingham.

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