The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in Barder not to have been met.
Held: (Wall LJ dissenting) The husnband’s appeal failed. Ward LJ: ‘The task of the Court is clear enough. It is this: has the basis upon which the order was made or a fundamental, albeit tacit, assumption which underpinned its making been invalidated by subsequent events?’ The later remarriage was not a special factor allowing the court to re-open a consent order. The topic had been raised in correspondence. A statement of present intentions was not a promise as to future intentions and actions, and ‘there was no basis or fundamental assumption, even a tacit one, that the deal would founder if the wife remarried within a relatively short time after the agreement. The risk of remarriage was one the husband had to accept.’
Judges:
Ward, Waller, Lawrence Collins LJ
Citations:
[2008] EWCA Civ 11, [2008] 1 FLR 655
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Barder v Caluori HL 2-Jan-1987
In divorce proceedings, the husband had transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20 February 1985 and on 25 March the wife unlawfully . .
Cited – Wells v Wells CA 1992
The husband had transferred his interest in the former matrimonial home to the wife who had custody of the two children of the family. She remarried six months later. The husband sought to have the order set aside.
Held: Brandon LJ said: ‘In . .
Cited – Williams v Lindley (formerly Williams) CA 10-Feb-2005
The husband sought to re-open the consent order made on the divorce. The wife had been employed by a widower as his housekeeper. After separating from the husband she moved into the widower’s house with both the children. She sought a transfer of . .
Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – Smith v Smith FD 1976
The husband sought to re-open settled ancillary relief arrangements after his former wife remarried.
Held: He had to take the chance of her remarriage. Latey J gave guidance on this question and said: ‘If the wife had remarried or was going to . .
Cited – H v H (Family Provision: Remarriage) CA 1975
The court considered the effect of a remarriage on a financial provision order made on divorce. Sir George Baker P said: ‘The prospect, chance or hope of remarriage is, I think, irrelevant, but the fact of remarriage, which does not admit of . .
Cited – Duxbury v Duxbury CA 1987
Mr and Mrs Duxbury had been married for 22 years. When, at the end of their marriage, their financial affairs came before the court under the provisions of sections 23 and 24 of the 1973 Act, each wanted a clean break. By the standards of the day, . .
Cited by:
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 22 November 2022; Ref: scu.263845