Xydhias Agreements

What is a Xydhias Agreement?

A Xydhias agreement is an agreement that has been reached between parties in relation to finances following separation which is not yet an order of the court. So even if an agreement has not been sealed by the court, parties may still be bound by the agreement.

The term is derived from the case of Xydhias v Xydhias 1998.

Xydhias v Xydhias

This case involved a husband and wife, the wife applied for divorce in June 1994 and where issued an ancillary relief application now known as a financial remedies application in April 1995. The matter was fixed for a 3-day final hearing on 2nd September 1996. In the days leading up to the hearing, there was extensive negotiation between the parties legal teams. While there remained some disagreement regarding some relatively minor issues which the wife anticipated could be resolved at the hearing, her solicitor subsequently notified the court to advise that “heads of terms have been agreed” matters are agreed and that the 3-day final hearing was no longer required; the matter could be listed for a short 45-minute appointment instead. However, at that hearing the husband was reported to have withdrawn all his previous offers and sought directions to trial.

The wife filed an application for the husband to show cause as to why he should not be held to the terms of agreement that they had reached. That application succeeded with the District Judge finding that the parties wanted to conclude matter and it was clear that the essential elements of the agreement had been reached. An order was made in the terms of the agreement.

The husband appealed. He claimed that ordinary contractual principles should apply. The Court of Appeal disagreed. Giving judgment, Lord Justice Thorpe concluded that:

“on the evidence before him, I am in no doubt that the district judge rightly held that the parties had concluded a compromise during the week before the hearing. Throughout that week, it was the husband who was pressing for a settlement and plainly there came a point at which the wife agreed his terms. All that remain unresolved was either mechanics or trivial.”

It was therefore held that an agreement for the compromise of an ancillary relief application or now a financial remedy application does not give rise to a contract which is enforceable in law. The only way it will be enforceable is to convert the agreement into an order at court. The husband’s appeal was dismissed.

In Rothwell v Rothwell, Lord Justice Thorpe reiterated this position stating that:

“as a matter of general law, there is no doubt at all that once the parties have arrived at a compromise of litigation, the court will uphold and enforce that compromise, absent some vitiating element”.

?