Improving on the terms of a non-binding agreement for a disabled husband

Edward represented a husband in his application for financial remedies on divorce. The parties had separated several years previously, after a long marriage of almost three decades. Upon separation, the husband had received a sum of money from the wife and moved out of the family home, which was the sole asset. In this case, both parties had disabilities, but it was accepted that the wife’s condition was more severe and that she was incapable of work.

It was common ground that, on separation, there had been an agreement of sorts about how the parties’ finances should be split, with the husband receiving a sum on separation and, later, a balancing payment on the sale of the family home. The total sum amounted to approximately 15% of the net equity in the family home.

At this point, years later, the husband subsequently applied for a financial remedy. The wife maintained that the agreement was binding and a Xydhias agreement, and cross-applied with a notice to show cause. That application was dismissed and the matter listed for Final Hearing.

Following Edward’s representation, on conclusion of the trial the judge determined that the agreement was not a Xydhias agreement and not binding. The family home was to be sold, the proceeds divided with 40% to the husband – the wife’s needs being the greater – and there to be a clean break.