Marchant v Dixon [2008] EWCA Civ 11, [2008] All ER (D) 160 (Jan)
The issue was whether, where a wife remarries shortly after a consent order has provided for payment of a lump sum to capitalise her periodical payments, that event invalidates the basis or fundamental assumption upon which the order was made.
HELD The court has to ask itself: “Has the basis upon which the order was made or a fundamental, albeit tacit, assumption which underpinned its making, been invalidated by subsequent events?” There would have to be an assumption that, for an indefinite period to be measured in years rather than months or weeks, the wife would not remarry.
If and in so far as it was an assumption made by the parties, it must be a common assumption held by both of them, not the unilateral assumption of only one of them. It cannot avail the husband to protest that he thought the deal could be undone if the wife remarried within a relatively short time of the order having been made, whatever that time might be.
The court will not embark upon an analysis of their subjective hopes and fears; it must be an objective test.
