Have you formally reached a financial agreement? – Heald Law
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Have you or your spouse/partner reneged on the previous agreement?

Xydhias v Xydhias [1998] EWCA Civ

 

Following separation, an increasing amount of couples elect to settle and agree their financial matters through negotiation. This can either happen by way of a consent order or whilst there are ongoing court proceedings.

On occasions, one party changes their mind and feels that the agreement is not fair to them. The question then arises as to whether or not the agreement is still valid and therefore binding?

In the case of Xydhias v Xydhias [1998] EWCA Civ the Court of Appeal set out the principles to be applied where an agreement was reached but one party changed their mind, particularly in cases where the was an impending court date. 

The principles are:

  1. Ordinary contractual principles are not relevant, as an agreement to settle an ancillary relief claim does not give rise to an enforceable contract (although the idea that contractual principles should be entirely excluded in relation to all family agreements was reconsidered by Ward LJ in Soulsbury v Soulsbury, and also the potential for the enforcement of a distinct and separate agreement and the application of contractual principles in such a case).
  2. When considering an agreed draft consent order, the court will not automatically give it the force of an order—the court conducts an independent assessment to enable it to discharge its statutory function to make such orders as reflect the criteria listed in Matrimonial Causes Act 1973 Section 25 and Civil Partnership Act 2004 Schedule 5, Part 5.
  3. The purpose of negotiation is to reduce the length and expense of the court process; however, the court decides the applicant’s award, not the parties.
  4. If there is a dispute as to whether the negotiations led to an accord that the process should be abbreviated, the court has discretion in determining whether an accord was reached.
  5. If the court concludes that the parties agreed to settle on terms, then it may have to consider whether the terms were vitiated by a factor such as material non-disclosure or tainted by a factor within the parameters set in Edgar(watch out for our July blog on this); and
  6. In every case, the court must exercise its independent discretionary review applying the Matrimonial Causes Act 1973 Section 25 / Civil Partnership Act 2004 Schedule 5, Part 5 criteria to the circumstances of the case and to the terms of the accord.

 

A Xydhias agreement is, therefore, an agreement reached between two parties’ in relation to financial matters following divorce or separation of cohabiting couples which is not yet a court order, but the parties’ are bound by the terms of their agreement. This essentially means that once an agreement has been reached, if one party reneges on the agreement, a court may still make a final order in the terms of the initial agreement.

The court will, of course, consider the agreement as a whole and will then make a practical judgement based on the intentions of the parties as shown within the agreement. The court will not essentially simply approve or stamp an agreement; the court will consider the application holistically and will also consider whether the factors in Section 25 of the Matrimonial Causes Act 1973  / Civil Partnership Act 2004 Schedule 5, Part 5 have been taken into consideration by the parties’ or their legal representatives.

If you, a family member or friend require assistance from specialist Family Lawyers, please contact Heald Solicitors LLP on 01908 662277 to arrange an appointment.

At the time of writing Heald Solicitors LLP offer initial fixed fee appointments as below:

  1. 1 hour appointment – £180 inclusive of VAT
  2. 1 hour 30 minute appointment – £270 inclusive of VAT
  3. Some cases are not eligible for a fixed fee appointment, on these occasions the solicitors charging rates will vary from £200 – £260 (plus VAT) per hour.