Dixon v Marchant
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Lawrence Collins,Lord Justice Ward |
| Judgment Date | 24 January 2008 |
| Neutral Citation | [2008] EWCA Civ 11 |
| Docket Number | Case No: B4/2007/1360 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2008 |
[2008] EWCA Civ 11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
HIS HONOUR JUDGE COLLIS
Royal Courts of Justice
Strand, London, WC2A 2LL
The RT Hon. Lord Justice Ward
The RT Hon Lord Justice Wall and
The RT Hon Lord Justice Lawrence Collins
Case No: B4/2007/1360
BM92D0547
Mr David Burles (instructed by Divorce and Family Law Practice) for the appellant
Mr Peter Duckworth (instructed by Mills & Reeve) for the respondent
Hearing date: 21st November 2007
The issues in this appeal
Where a wife remarries shortly after a consent order has provided for payment of a lump sum to capitalize her periodical payments, does that constitute a Barder-type event which invalidates the basis or fundamental assumption upon which the order was made? On 6th June 2007 His Honour Judge Collis sitting in the Birmingham County Court held that it did not and the husband now appeals with permission granted by Wilson LJ.
The background
The appellant is Mr John Dixon, now aged 64. The respondent is Mrs Josephine Marchant, now aged 59. They married in September 1978, it being a second marriage for each of them. Divorce proceedings started in 1992 and the marriage was dissolved by decree absolute granted on 20th August 1993. For convenience I will, if they will kindly forgive me, nonetheless refer to them as husband and wife.
On 4th February 1993 an order was made by District Judge Cleary that, the husband having purchased a property registered in the sole name of the wife, he pay her a lump sum of £40,000 and periodical payments at the rate of £15,000 per annum during their joint lives or until her remarriage or further order. He complied with the terms of this order.
In August 2005 the husband's solicitor wrote to the wife informing her that he was about to draw down his pension from Ernst & Young, of which firm he had been a partner, that his income would be reduced accordingly and that he had grounds to make an application to vary the maintenance payable to the wife. He asked for details of her current financial position and her circumstances generally but in particular he asked, “Are you still cohabiting?” Her response through her solicitors was to inform him that her current financial position was “very modest” and that “our client is not cohabiting and does not intend to cohabit”. She added that she too had hoped to be able to agree the matter amicably and suggested that she would be more than happy to capitalise the maintenance for the future. She never sought to increase the amount payable to her.
His solicitors were not satisfied and wrote on 12th September stating that they needed her “to elaborate upon [her] circumstances regarding the statement that she is not cohabiting and does not intend to. We understand Mrs Dixon has had a relationship with a gentleman named Derek since about 1993.” They indicated that her initial response was helpful but it would “depend on other factors and most importantly the position regarding co-habitation.” On 3rd November they reiterated his suspicions, stating, “When the original order was made on 4th February 1993 Mrs Dixon was having a relationship with Derek and we say that remains the case after all these years.”
Cohabitation remained an issue between the parties; yet on 13th January 2006 the husband, whilst not accepting her denial, nonetheless offered to compromise if she would accept a lump sum payment of £75,000 with her claim for maintenance being dismissed. In their response of 26th January 2006 her solicitors said this:
“Our client has done all she can to advise that she does not cohabit and enjoys her own independence. She has no wish or desire or intention to cohabit or remarry, particularly after two unsuccessful marriages. Whilst Mrs Dixon and her friend do enjoy the same interests and get on well, they do not wish to cohabit with one another and do not spend all their time and, by all measures which can be used to ascertain whether parties are cohabiting they are clearly not cohabiting.”
They added:
“Looking at the Duxbury calculations for capitalising the maintenance, these would suggest that our client, at 57 years of age, should be looking to a lump sum of approximately £200,000 and the offer of £75,000 is, therefore, even if other factors are taken into account, too low and is therefore not acceptable. Our client does wish to avoid the costs and trauma of litigation, if at all possible, and, in her view, a realistic offer for capitalisation of her maintenance based upon what we have seen of your client's financial position would be £150,000.”
His solicitors' reply on 2nd February was:
“Whilst you state that Mrs Dixon has done all she can to advise that she does not cohabit we simply do not agree. If this matter goes to court we will argue that Mrs Dixon is indeed cohabiting. It is clear to us that Mrs Dixon is not prepared to accept the position purely because of the effect it will have upon her right to maintenance.”
He suggested a “more realistic figure” would be in the region of £100,000.
Her solicitors' response of 15th February 2006 was to state “categorically” that “she is not cohabiting and does not intend to cohabit and on this she is quite adamant”. She made the suggestion that the parties meet half way and compromise at £125,000. The husband agreed.
The husband prepared an order to place before the district judge for approval. It was in these terms:
“Upon the Husband and Wife agreeing that the terms of this order are accepted in full and final satisfaction of all claims for income, capital and pension sharing orders and Pension Attachment Orders and of any other nature whatsoever which either may be entitled to bring against the other howsoever arising in relation to their marriage
By consent it is ordered that:
1. The Husband shall pay or cause to be paid to the wife a lump sum of £125,000 on or before 1st May 2006 whereupon
(a) the order herein of District Judge Cleary dated 4th February 1993 that the Husband shall pay to the Wife periodical payments at the rate of £15,000 per annum monthly in advance shall be dismissed and
(b) the Wife's claims for periodical payments and secured periodical payments shall stand dismissed and the Wife shall not be entitled to make any further application in relation to the marriage under the matrimonial causes act 1973 s. 23(1)(a) or (b) nor to apply to the court, on the death of the Husband for provision out of his estate.
2. No order for costs.”
The application for a consent order was accompanied with the prescribed statement of information in which the wife had to disclose her marital plans in response to which she declared that she had “no intention to marry or cohabit at present” (with emphasis added by me). The order was made by District Judge Wall on 25th April 2006.
On 3rd November 2006 the wife married Mr Derek Marchant. She explained in a statement filed in these proceedings how that came about. She said:
“14. It is fair to say that this issue [cohabitation] surfaced at sundry times during the negotiations. However it did not seem to matter greatly to the respondent for, as I say above, he already seemed to think that I was cohabiting and so presumably he continued paying my maintenance on that assumption. It follows that if I had admitted cohabiting (which I did not and do not), it would have made little or no difference to the figure we were talking about. In reality it was simply another stick to beat me with.
15. I would now like to set out the facts. For a number of years, since about 1994 as the respondent well knows, I had been a close friend and companion of Derek Marchant. Although we spent a great deal of time together, and even gone on holiday together, there was no cohabitation between us, nor did we share bank accounts or have any financial interaction. He had his financial responsibilities and I had mine. We had no intention of living together or marrying. As far as I was concerned (and my family knew this) I was never going to marry again.
16. In August 2006, however, Derek and I visited a friend who was dying of cancer. She was 39 and had two children aged 6 and 7. She had just finished some chemotherapy and was very ill. Derek himself had suffered severe ill-health problems (…), and I have lost friends over the course of the last year through cancer. In short we were in a sombre and reflective mood in the journey back in the car.
17. Part-way home we decided to stop off for a meal. We felt it was necessary to think about something other than what we had just seen, so we ordered a bottle of wine and just talked. Some way through this process Derek looked at me and said:
“Life's too short – will you marry me?”
I was a little taken aback but not displeased by what he said, and almost immediately said “Yes”. It was a decision taken entirely on the spur of the moment, but one that I do not regret. I hasten to add that all my family and friends were as shocked as I was when they found out.”
When the husband discovered this, he applied to the district judge to set aside District Judge Wall's order of 25th April “as new events have occurred since the making of the consent order which invalidates the basis and fundamental assumption upon which the consent order was made, i.e. the petitioner … remarried on 3rd November 2006 having stated that at the time when the consent order was made she had no intention of cohabiting/remarrying.” He later applied for permission to appeal out of time...
To continue reading
Request your trial
-
Gohil v Gohil
...lightly be set aside. A strong case is required to justify a court taking this course. As Lawrence Collins LJ (as he then was) said in Dixon v Marchant [2008] 1 FLR 655, para.91, in respect of the principle in Barder v Caluori, it is "reserved for exceptional cases". In my view the same app......
-
Judge v Judge
...AC 20, and for recent examples B v B (Ancillary Relief Consent Order: Appeal Out of Time) [2007] EWHC 2472 (Fam), [2008] 1 FLR 1279; Dixon v Marchant [2008] EWCA Civ 11, [2008] 1 FLR 655. 60 In this country, by contrast with the United States, there is no widely available route of a re-he......
-
Cart v Cart
...to exercise its powers under CPR 3.1(7) (the CPR rule providing that a judgment or order may be set aside). 38 Mr Burrows referred me to Dixon v Marchant [2008] EWCA Civ 11, [2008] 1 FLR 655 and Judge v Judge [2008] EWCA Civ 1458, [2009], 1 FLR 1287 (in so far as it was not a set aside app......
-
Ah (Petitioner) v Ph
...submission was, in effect, an attempt to get me to assess the Wife's prospects of remarriage. He drew my attention to the authority of Dixon v Marchant [2008] EWCA Civ 11; [2008] 1 FLR 655. I am quite satisfied that the law is that I must ignore the prospects of remarriage in calculating th......