ANCILLARY RELIEF: Dixon v Marchant [2008] EWCA Civ 11

24 JAN 2008

(Court of Appeal; Ward, Wall and Lawrence Collins LJJ; 24 January 2008)

The wifes remarriage shortly after the making of a consent order providing for payment of a lump sum to capitalise her periodical payments did not constitute a Barder type event invalidating the basis or fundamental assumption upon which the order was made, notwithstanding that the wife had made a statement in the proceedings that she had no intention to cohabit or remarry. The agreement between the parties could have included whatever recitals were appropriate to spell out any common assumption about a moratorium on the wifes remarriage, there was nothing in the agreement that would have alerted the judge to an intention between the parties to give the husband a right to claw back any part of the lump sum if the wife were to remarry soon after the payment had been made. There had been nothing before the court to indicate that the wife had been fettering her right to remarry; the risk of remarriage was one the husband had had to accept. (Wall LJ dissenting.)

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