A Xydhias agreement is an agreement reached between you and your spouse in relation to your financial arrangements on divorce, which is not yet a court order, but which you have been bound to.
What happens if you and your spouse have reached an agreement, but one of you subsequently changes your mind about the deal?
Only a court can make an agreement into a court order. By reaching an agreement with your spouse you do not automatically create a binding agreement. However, that does not mean that you are free to change your mind at any point up until a judge makes your agreement into an order.
You may have created a “Xydhias agreement” as a result of your negotiations. A court can be asked to convert a Xydhias agreement into an order of the court, even if one of you has subsequently changed your mind about the arrangement.
How do you create a Xydhias agreement?
If you and your spouse have willing entered into a deal, with a full appreciation of its consequences, you may be bound by it.
In the case of Xydhias v Xydhias*, the parties were involved in extensive negotiations with their legal teams, and decided to cancel the final hearing on the basis that they had agreed “Heads of Agreement”. This is essentially a list of all the agreed points. The Husband then decided that he wanted the case to proceed to final trial after all.
In that case, the Court of Appeal stated that “there are sound policy reasons supporting the conclusion that the judge is entitled to exercise a broad discretion to determine whether the parties have agreed to settle”.
How would a judge determine that you had agreed to settle? It may be that your solicitors have produced a “Heads of Agreement” document, which sets out all the agreed points between you. Alternatively, perhaps the solicitors have been communicating about some minor drafting points, but all the other issues have been resolved at an earlier stage. It may be that the solicitors have written to the court to cancel a court hearing, on the basis that an agreement has been reached. These could all be factors that a court would take into account in deciding whether a Xydhias agreement has been reached.
How do you avoid creating a Xydhias agreement?
If a letter or other communication is about settlement and it is marked “Without Prejudice”, the rules of evidence mean that a judge will not be able to consider the communications at a final hearing. This would therefore be inadmissible as evidence of a Xydhias agreement.
* [1998] EWCA Civ 1966
Gnomon by Brian Smithson
