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Finance Matter – Case Study

10 Feb 2021

Posted in Family Law

It should be noted that the finance matter and the divorce matter are legally separate. In finance matters involving the Court, one of the two parties in the divorce must make a separate application. In one such case, our client was the Respondent wife in the divorce, and the Applicant wife in the finance proceedings. At the beginning of 2020, we filed a financial application with the Court by way of Form A. This process asks the Court to consider detailed financial disclosure of each party, before coming to a final order which details the terms of financial separation.

Once the Court application had been made, this matter took an unorthodox turn; the parties began negotiating the finances between themselves. It appeared that after lengthy discussions, both parties were heading towards a settlement outside of Court. Albeit seemingly promising, understanding the volatility of financial negotiations, we decided to keep the Court timetable running in the background. A hearing date had been scheduled for December 2020, at which point the Court would begin its consideration of the matter. Prior to the hearing, the parties agreed between them on the terms of financial settlement and as such, the parties’ solicitors wrote to the Court jointly, asking that the scheduled hearing be vacated. The Respondent’s solicitors confirmed they would shortly thereafter provide us with a consent order; a document to be filed with the Court setting out the terms of the parties’ final agreement.

Our next correspondence received from the Respondent’s solicitors was a letter they had unilaterally decided to address to the Court. In this letter, they asked that the finance hearing be rescheduled to go ahead. At this point, our client was both confused and anxious; it had appeared that the financial agreement discussed was to go ahead, and she was looking forward to the swift conclusion of this matter.

As a result of the Respondent solicitor’s surreptitious correspondence with the Court, we wrote to them directly explaining that the matter fell within Xydhias territory. A Xydhias agreement arises when the general terms of settlement and agreement have been reached in proceedings for a financial remedy. Even if the specific terms of a draft court order have not yet been agreed and one party tries to back out of the agreement, a Court may be prepared to make an order in the terms reached.

Upon receipt of our letter detailing our intention to make a Xydhias application to the Court, the Respondent’s solicitor advised his client to move ahead with the financial settlement as agreed. We were thereafter provided with a consent order setting out the terms of this agreement, which was filed with the Court and sealed. Our client avoided a hearing and walked away from her divorce with a financial settlement she felt comfortable and happy with.