Xydhias Agreement Explained: Divorce Settlement Guidance
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Xydhias agreement: a maintenance deal that can be varied
Where the parties reach an informal financial agreement (known as a Xydhias agreement) in divorce proceedings, one party may later want to renege on the terms for some reason. If that happens, the judge can still uphold the agreement, even if a financial remedy order has not yet been approved.
The court has recently ruled that a Xydhias agreement, in a very high value case, amounted to a maintenance agreement and could, therefore, be varied because of a subsequent change in circumstances.
What is a Xydhias agreement?
A Xydhias agreement arises when the parties have agreed the terms of a financial settlement in principle, in the course of proceedings (unlike Rose agreements, which are typically reached at a more advanced stage). Even if specific terms have yet to be agreed – the court has the discretion to uphold the terms if a dispute arises.
But at what point in negotiations and communications between the parties – even if conducted ‘without prejudice’ – will the court find a Xydhias agreement has been reached? This is a question of fact in the specific circumstances of the case. For instance, the court is more likely to find a Xydhias agreement exists where heads of terms are signed by the parties or an agreement is evidenced in communications between the parties’ solicitors.
Variation of agreement
If a Xydhias agreement is identified, it may be possible for the terms to be varied in certain circumstances. The court recently concluded that a Xydhias agreement amounted to a maintenance agreement, and could be varied under s35 Matrimonial Causes Act 1973.
In HA v EN [2025] EWHC 2436 (Fam), the parties married in January 2009 and lived in a London property worth around £20m and had two children (now 15 and 13). They signed a prenuptial agreement in December 2008, at a time when the husband estimated his wealth to be around £61m.
Under the prenup, the wife would receive a £5.6m housing fund (indexed), capitalised maintenance of £21m (indexed); and annual child maintenance of £170,500. There was also a ‘stop-loss’ clause capping her entitlement at 50% of total assets.
In May 2022, the wife petitioned for divorce. A dispute arose in relation to the stop-loss clause and the wife made a court application known as a ‘notice to show cause’ relying on the prenup and alleging the husband had manipulated his financial position to reduce her entitlement. By the time of the proceedings, he claimed he was worth just £14m.
Negotiations followed and, by 21 April 2025, a Xydhias agreement had been reached. However, the husband then complained about the agreement because of two changes in circumstances and wanted it varied:
Legal costs – He realised (late in the day) the huge scale of legal costs involved. The judge acknowledged that the case was “immensely complicated” (as reflected in the fees), but pointed out that if the issue was so fundamental to the husband, he could have negotiated a figure or cap on legal fees within the Xydhias agreement.
Reduction in market value of property – The sale price of the former family home was expected to be significantly reduced compared to the amount paid for it.
The husband argued that the Xydhias agreement amounted to a maintenance agreement for the purposes of s34 MCA 1973; and could therefore be varied given the changes in circumstances. The judge agreed, and made significant changes to the agreement – though these were to be contingent on the actual sale price of the property.
What does this mean?
The decision is a reminder to the parties to exercise caution when negotiating a financial agreement in principle. Absent a change in circumstances, you could be held to the terms of an agreement – even where a financial remedy order has not yet been approved.
How we can help
The financial remedies team at Osbornes Law advises clients seeking a fair division on divorce. The team provides clear and strategic advice to protect your interests and secure the best outcome. Please contact us by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811
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