Maintenance, remarriage and “Barder” events

Divorce|March 7th 2008

Settle your case on a continuing maintenance basis, and it can come back to haunt you…

For many people, a financial settlement represents the final chapter in a divorce. Generally, it comes to all concerned as a huge relief. Parties can begin to rebuild their lives, putting the unpleasantness of a break-up behind them. For those who achieve a clean break settlement, it will most likely be the end. However, for those who continue to pay or receive maintenance, this is not necessarily the case.

Maintenance may be paid for a period of time, with the court reserving the power to extend that period – or not, as the case may be. Maintenance may cease on cohabitation and will automatically end on the recipient’s remarriage. In other cases, maintenance will have no cut-off date and will only be stopped on the orders of the court, or on the death of the payer or payee.

If one of the parties wishes to bring an open-ended maintenance order to an end, this may occur by mutual consent. Both parties may agree that the time has come for the order to cease, the recipient spouse being able to manage alone.

Solicitors are consulted usually when there is no such agreement, and one party does not want to end or reduce the obligation.

Variations of maintenance orders are expensive and risky. As with the original application for a capital and income award, it involves going through the County Court or Principal Registry in London. The costs will be high – and as a result obtained for either party is likely to be disproportionately expensive. In a straightforward case, it makes sense to negotiate or proceed via the Magistrates Court. This is a simpler and cheaper process. However, when larger sums of money are involved, an experienced Judge will be required to make the determination.

There aren’t any winners in a Maintenance Variation. I don’t recommend it unless it is absolutely necessary, and legal costs are not an issue.

This isn’t all.

Section 31 of the Matrimonial Causes Act 1973 permits somebody who is in receipt of maintenance to apply for a lump sum of capital, instead of continuing payments. This capitalisation of maintenance can be a very attractive prospect. It can be particularly attractive when a recipient is involved in another relationship which, if it turned into marriage, would mean that the maintenance was no more.

In many such cases, a clean break was impossible at the time of the divorce, due to insufficient capital. Years later, the financial positions of both parties may have altered. A husband may have rebuilt his capital and be about to retire. If his overall income is about to reduce, he may well wish to hold onto all of his pension.

I advise those who prefer to pay maintenance to bear section 31 in mind. If they can afford a clean break settlement at the outset, this can be the best course to follow as there will be no ‘comebacks’ in the future.

Even so, some people prefer to pay maintenance. They reason that their former spouses are likely to remarry, whereupon maintenance will cease. They believe that on balance, maintenance is a more cost-effective option.

However, it is important to note that applications for an order under section 31 of the Matrimonial Causes Act 1973 are often made in response to an application to vary maintenance downwards or terminate it.

This happened recently in a case called Dixon v Marchant. The judgment was given by the Court of Appeal on 24 January 2008.

Mr Dixon had been paying maintenance since 1993. In 2005, as he approached retirement, he wished to vary his maintenance downwards. Negotiations ensued about paying a lump sum in lieu, under section 31.

His former wife consistently rejected any suggestion that she was cohabiting. Eventually, the parties settled. Mr Dixon paid his former wife £125,000 to end all liabilities for maintenance. This was probably not as much as she might have achieved in court.

Within a few months, the former Mrs Dixon remarried and became Mrs Marchant. Mr. Dixon applied to the court for the return of his £125,000, claiming that this event was what lawyers call a “Barder” event and as such, he was entitled to the return of his money.

A “Barder” event is something with which I am familiar, having been involved in one of the reported cases on the subject (SvS (2002) 1FLR 992).

Such a case concerns a new event that would have materially impacted on the original settlement. The event occurs within a relatively short time after an award has been made, leave to appeal is made very quickly after the supervening event has occurred. It is also a requirement of such an event that if an order is set aside, no third parties will be adversely affected.

The evidential bar is high. It is vital that any “Barder” case must be dealt with very promptly as soon as the new event occurs, as a delay can be fatal to the case.

In S v S, I represented Mr. S. The late Mrs Justice Bracewell held that the groundbreaking 2000 decision of the House of Lords in White v White was indeed capable of being a “Barder” event. However she found that Mrs. S’s own lawyers should have been aware that the decision was shortly to be made. Instead, they had advised Mrs S to agree to an earlier settlement, calculated on different principles, without waiting for the judgment to come out. As a result, Mrs S’s award was well over £1million too low. My client successfully defended her “Barder” application and did not have to make up the difference. He was fortunate.

By a 2:1 majority, the Court of Appeal this year in Dixon v Marchant found that Mrs Marchant’s remarriage was not a Barder event, and that she could keep her settlement. Lord Justice Ward found that there was no basis at all that the deal would founder, if the wife remarried. Lord Justice Collins concurred.

Lord Justice Wall disagreed. He delivered a judgment with which I agree. He went through the “Barder” conditions, applying them to the facts of this case. They all appear to fit. I think Mr. Dixon was unlucky.

There are a number of other reported cases about Barder events. I think this is a tricky and very interesting subject. The case of Dixon v Marchant also struck me as interesting for other reasons. It raises the question of whether Mr. Dixon was right to try and reduce his maintenance in the first place. The stakes were high, because both parties were at risk of paying all the legal costs involved. Litigating about principles does cost dear.

If you are about to settle your case on a continuing maintenance basis, bear in mind that section 31 of the Matrimonial Causes Act 1973 can loom large years down the line. It can come back to haunt you – or hand you a tidy little windfall as good as a first-class win on the Premium Bonds.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Peter Quinn says:

    I found your site on technorati and read a few of your other posts. Keep up the good work. I just added your RSS feed to my Google News Reader. Looking forward to reading more from you.

    Peter Quinn

  2. Family law and forensic accountants says:

    […] Similarly, our forensic accountants can provide advice about the likely value of a client’s business for the purpose of a divorce.  This is useful because business values may be artificially inflated or deflated by the client, for a variety of reasons. Because he is an independent, professional advisor, Nick’s eagle eye and “broad brush” approach can keep a client’s expectations in tune with reality. We can focus on taxation, liquidity, settlement and methods of payment – all of them art forms. Payment terms require skill to negotiate so that the client walks away satisfied with the outcome. This is particularly so if that client is seeking a clean break without the prospect of maintenance payments stretching out into the future, or the unwelcome possibility of a future additional capital payment (under section 31 of the Matrimonial Causes Act 1973, which I have examined in a previous post). […]

  3. The credit crunch divorce: do you get what you pay for? says:

    […] you may be able to save in the long run. This is particularly pertinent if you  want to avoid a capitalisation application a few years down the line, once the economy has stabilised […]

  4. 22,000 ‘thank-yous’! says:

    […] 4.      Maintenance, Remarriage and Barder Events […]

  5. Bryan Myerson’s Credit Crunch Divorce - by guest blogger Robin Charrot says:

    […] So this is what they did. Bryan handed over to Ingrid the couple’s London home and a property in South Africa. He agreed to hand over a second property in South Africa (but hasn’t done so yet), and also agreed to pay her a lump sum of £9.5m cash, in instalments, over four years. He has already paid £7m of this, so £2.5m remains owing. Bryan kept all of the shares in his company. In short, the wife received 47% of the assets and the husband kept 53% of the assets. As part of the deal, Ingrid also agreed to terminate her maintenance claims against Bryan; this process is known as ‘capitalisation of maintenance‘. […]

  6. Valuations, More Valuations, The Court of Appeal and Barder….. | Marilyn Stowe Family Law and Divorce Blog says:

    […] frank and clear disclosure, fraud or undue influence. If that cannot be established, then under Barder principles, a supervening event may have occurred to wholly frustrate the agreement. However, such an event […]

  7. Remortgage says:

    liked the post and keep up the good work…

  8. McFarlane v McFarlane: A Divorce Seesaw | Marilyn Stowe Family Law and Divorce Blog says:

    […] who are now aged between 13 and 20. She subsequently applied for an increase for herself and capitalisation of her maintenance claims. Last week the judgment was handed […]

  9. Marilyn Stowe says:

    No she can’t. I suppose she could argue your partner would have resources available to him to reduce his own needs. Ongoing maintenance cases are very difficult. Why don’t you and your partner have a discussion with a solicitor about seeing if it is possible to end his maintenance obligations at some point?

  10. Pete says:

    Very interesting read. So am I correct in thinking that if my ex-wife remarrys, which she has. I am no longer obliged to pay maintenance to her for my sons who live with me for three days a week anyway??

  11. Marilyn Stowe says:

    No Im afraid not. Spousal maintenance only stops on remarriage not child support.
    However are you sure you are paying the correct amount for child support given they stay with you three days a week?
    Go to the CSA calculator online to check.

  12. deborah says:

    My ex clearly lied on his for E claiming he was a tenant in the woman’s house he is about to marry next month. I agreed to the divorce providing he signed the agreed assets over to me within 56 days, which was in September 2011. Where do I stand regarding the fact that he is about to get married yet has not signed the assets awarded to me, which includes the FMH and Endowments ?

  13. Emily says:

    Hi there,

    I have found this all very interesting reading. I wonder if you could answer a query that I have.

    My husband and I have been together for 18 months. I have 3 children under 14 and he has 2 children with his ex partner (they were never married) since their split 6 years ago he has continued to pay the mortgage in place of maintenance payments. His ex has never worked. I am preganant with our first child together (so we will have four children living with us) We really need the extra space and a bigger home and while I work and have a good job, it will be difficult to get a decent sized home in a good area on my wage alone. Does he need to carry on paying for her home? I really don’t want his children to be homeless or to struggle (I have been there)But surely my husband has a responsibilty to our child too and to provide a good home for us. Surely she could get a job and take some of the responsibilty as many other women do.

  14. ian says:

    hi if i married again with new partner. do my new wife have to pay for my kids to if she on job seekers or workind thanks

  15. Rosewenn says:

    I am sure that during the ancillary relief proceedings, my soon to be ex will claim he is not living with the woman he has been for three years. If the judge accepts this as being true, can the ancillary relief by changed when my husband moves back in with the other woman. He will effectively be in a household with two wages where as I will only have one.

  16. Brian Myerson's Credit Crunch Divorce - by guest blogger Robin Charrot - Marilyn Stowe Blog says:

    […] So this is what they did. Brian handed over to Ingrid the couple’s London home and a property in South Africa. He agreed to hand over a second property in South Africa (but hasn’t done so yet), and also agreed to pay her a lump sum of £9.5m cash, in instalments, over four years. He has already paid £7m of this, so £2.5m remains owing. Brian kept all of the shares in his company. In short, the wife received 47% of the assets and the husband kept 53% of the assets. As part of the deal, Ingrid also agreed to terminate her maintenance claims against Brian; this process is known as ‘capitalisation of maintenance‘. […]

  17. Gillian says:

    Are there many cases like mine where after a long marriage and no earning power the court ordered a joint lives maintenance order, but took away my rights under the Inheritence Act, my ex husband is 10 years older than me ane will die before me kind regards Gwen

  18. Sheila says:

    I have a joint lives spousal maintenance order no pension share. There were limited assets on divorce , I received a lump sum which was used to pay a deposit on a home for me and 4 children. I was not working at the time but Judge said I could work part time and claim benefits. Child maintenance was court ordered and has now been extended for tertiary education. 2 at Uni, 2 in full time secondary education. No upward variation since 2002.
    Ex husband in full employment ( self employed) earns £100,000 ish , now wishing to work half time so wants to reduce maintenance from £800 PCM to £1.
    He has applied to the Court for down ward variation.
    I am working and earned £18,000 last year.
    Any advice gratefully received.

    • Marilyn Stowe says:

      Do you need financial help from your former husband? If so should he capitalize if possible the maintenance he should be paying you? These are just two questions you need to ask yourself and on which I suggest you also take some good local legal advice, sooner rather than later.

  19. John says:

    Can you advise please?
    I was divorced 10 years ago, at the time my wife had been diagnosed with Breast cancer and so the maintenance was set to cover for one child and her spousal maintenance to cover her for “reduced earnings capacity”
    5 years or so she took me back to court for an uplift which was set at £1600 per month … somewhere there was also a clause saying that there was to be a yearly increase on par with the retail price index…

    we both appear to have forgotten about this as I have now received a letter from a new solicitor saying that I should now be paying her £2200 a month and that I owe an arrears of some £12,000…

    It had been assumed (wrongly) that my wages would increase year on year, but they have not…

    In fact I have in the last year decreased my working hours… my salary is net £5200 pcm

    Also, When we originally divorced I GAVE her the matrimonial home, fully paid, she has taken out a mortgage…she also received as a lumpsum, a £36,000 pay out on a critical illness policy, and must have inherited at least £20,000 from the sale of her Mother’s house when she passed away last year..

    I am at my wit’s end and it’s all making me very ill…

    Please help…..

    • Marilyn Stowe says:

      You can apply to the court to vary the order and remit the arrears. Stop panicking. Get some good legal advice fast.

  20. John says:

    Thank you, what does “remit” the arrears mean?

  21. Marilyn Stowe says:

    Sorry! It means cancel.
    Best wishes

  22. John says:

    Thank you..

  23. Jacqui says:

    So. If we have discovered that ex wife is cohabiting, there are six years of maintenance left , equal to £130,000 before the split pension kicks in. We are left with the choice between continuing to pay and feeling exploited, risking her seeking an order to translate the maintenance into a lump sum then possibly promptly remarrying, or seeking to vary the order and risking it being upheld or translated into a lump sum so we have added substantial costs to the amount already committed. Or, given that her partners financial circumstances have recently taken a downturn, having the maintenance terminated but having incurred costs which given that these matters drag on in perpetuity , will substantially reduce any gains on our part by the time it is resolved. What do you advise ? Jacqui

  24. Topsy says:

    In light of Dixon v Marchant will we now see the application of clawback / overage agreements in capitalisation orders???

  25. Patrick Ashley says:

    Just looking for some advice as to how capitalisation of a monthly maintenance payment is achieved. I have been ordered to pay £24,000 per annum for 10 years and would like to know what sort of figure would be appropriate – I am obviously looking to pay something less than £240,000.

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