Dixon v Marchant

The Barder jurisdiction applies only where a later event invalidates the basis or fundamental assumption on which a financial order was made, and the other stringent conditions are satisfied. In a straightforward capitalisation of periodical payments to achieve a clean break, the possibility of the payee’s future remarriage is not, without more, such an assumption. A statement of present intention not to remarry is not a promise concerning the indefinite future. The relevant assumption is assessed objectively, by reference to the order and the material before the court. Unless the order records a shared assumption that remarriage will not occur, the risk of future remarriage ordinarily rests with the payer. A consent order derives its legal effect from the court order itself, rather than merely from the parties’ agreement.

The parties’ periodical payments order was made in 1993. In April 2006 they agreed a lump sum of £125,000 in full and final settlement, dismissing the maintenance order and achieving a clean break. The wife had stated that she had no present intention to remarry or cohabit. She remarried approximately six months later. The husband applied to set aside the consent order and sought permission to appeal out of time, relying on the Barder jurisdiction. The county court found no deceit or non-disclosure and held that the remarriage did not invalidate the fundamental basis of the order. The central issue was whether the remarriage was a supervening event invalidating that basis.

Majority. Ward LJ and Lawrence Collins LJ dismissed the appeal. The second, third and fourth Barder conditions were accepted: the remarriage occurred within a relatively short time, the application was made promptly, and no third-party interests were prejudiced. The issue was therefore whether the remarriage invalidated the order’s basis or a fundamental assumption on which it was made, so that an appeal would be certain or very likely to succeed.

1. Ward LJ held that the order was a straightforward capitalisation of periodical payments under the Matrimonial Causes Act 1973, intended to achieve a clean break. The cases involving accommodation of a wife and children, including Wells v Wells [1992] 2 F.L.R. 66 and Williams v Lindley [2005] EWCA Civ 103, concerned a different fundamental basis. The wife’s need for accommodation had been destroyed by remarriage in those cases; remarriage was not treated as the decisive event in itself.
2. The possibility of remarriage was not a special factor in this capitalisation. The wife’s statement concerned her present intention and did not amount to a promise not to marry in the future. The relevant assumption had to be objective and common to the parties or, properly analysed, shared by the court. The consent order contained no recital or term giving the husband a right to recover the lump sum if the wife remarried. The risk of remarriage therefore rested with him.
3. Lawrence Collins LJ stressed that the Barder jurisdiction is exceptional because finality in clean-break litigation is fundamental. The facts fell well below the necessary standard.

Dissent. Wall LJ would have allowed the appeal and set aside the order. He considered that Barder principles applied to the capitalisation of periodical payments, that remarriage six months later invalidated the tacit assumption that the wife would not remarry for an indefinite period, and that the order would not have been made had the remarriage been foreseen.

• Court of Appeal (Civil Division): The majority dismissed the appeal. Wall LJ dissented and would have allowed it and set aside the county court order.
• Birmingham County Court: His Honour Judge Collis dismissed the husband’s application, holding that the wife’s remarriage did not invalidate the fundamental assumption underlying the consent order.