09 May 2022
The Split is a BBC drama that first hit our screens in 2018 and has kept audiences enthralled ever since with the ups and downs of the members of the Defoe family, who all work in family and divorce law. The glamorous characters may live in enormous houses and have work outfits that probably cost more than my entire wardrobe but just how well did the research team do their homework when it comes to the family law storylines?
Despite having a marriage that initially looked set to stand the test of time, in Series 3, Hannah and Nathan’s relationship is now unravelling, potentially bringing their lives crashing down.
Following Hannah’s affair with Christie in season 2, the Sterns are now divorcing and seem set on trying to prove that it is possible to have “a good divorce”. In the opening scene of Series 3, we see Hannah place her wedding and engagement rings on a ‘Divorce Agreement – Proposed Heads of Terms’ document, while her husband Nathan reads through a ‘Divorce Agreement – Parenting Plan’.
These documents contain the details of how the couple have agreed to split their finances and property, and all the arrangements for looking after the children. In so far as finances and property are concerned, these are real documents which are used during settlement negotiations and in the course of alternative dispute resolution (ADR). It would appear that Nathan and Hannah are trying to resolve their divorce in an amicable way through non-court dispute resolution.
However, while they are documents drafted to assist with settlement negotiations, they are ‘draft’ documents only and are not the final documents which would make what is agreed, legally binding. These are rarely sent to the Court. ‘Heads of Terms’ is really, a shorthand version of a financial remedy order, a much longer document which is drafted after a full agreement has been reached.
This is a difficult document to draft and you should always instruct a solicitor to prepare this for you. The financial remedy order must be submitted to the Court with a form called a D81 – Statement of information (a declaration of the parties’ financial positions). Upon approval of those documents and upon pronouncement of the Final Order (formerly known as Decree Absolute), the settlement then becomes final and legally binding.
In respect of child arrangements, Parenting Plans are also real documents which can be drafted as part of ADR by solicitors, by mediators or by the parties themselves, following advice from the CAFCASS website.
However, a Parenting Plan would not be called a ‘Divorce Agreement – Parenting Plan’, as it is on the show because the divorce proceedings are about the relationship between the adults and should be kept entirely separate from the child arrangements.
The parenting plan will contain details about the arrangements for children such as their care and living arrangements, plans for holiday and travel, and possibly financial support. These plans can be a great way for separating parents to set out the arrangements for the children but they aren’t legally binding so can’t be enforced.
In order to make a Parenting Plan legally binding, it must be set out in a separate document, known as a Child Arrangements Order. This is an order which is submitted to the Court as a totally separate application to that which deals with property and financial matters. The Court would then undertake some safeguarding checks and if satisfied, can make a legally binding order in the terms agreed by the parties in a Parenting Plan. The Court must be satisfied that it is necessary to make the order and that the order is in the best interests of the children.
As the series progresses, the revelation that Nathan has not only found a new girlfriend but that she is also pregnant, threatens to dramatically redraw the battle lines, leaving the prospect of a ‘good divorce’ well and truly up in the air.
Nathan’s new family circumstances mean that he wants to vary the terms that were initially set, forcing Hannah to sell the family home now rather than delaying until after the children had left. He also wants to spend one night a week at the family home with the children, pending the sale – this is described as a ‘nesting’ arrangement where the children stay in the same property, and their parents stay with them on agreed days.
While nesting is one way of potentially providing continuity and structure in the children’s lives, there are clearly limitations to its success. It ideally requires three properties – the house for the children and a property for each parent. This can be very costly and so is not an option that most divorcing couples can even consider.
Nesting is a relatively new concept in the UK but there has been an increase in this arrangement in the initial stages of separation. Maintaining stability and consistency certainly sounds positive, but there are concerns about whether it leaves children in a state of ‘limbo’, wondering whether their parents will reconcile and so delaying having to face up to the reality of their parents’ marriage breakdown.
One positive effect is that it does help to preserve the relationship between the children and the parent who may have left the family home. Nesting can be a fair way of preventing distance between the children and the parent who has left, often to prevent acrimony and give both parties the space they need to emotionally come to terms with the divorce.
A good family lawyer would certainly not recommend the nesting approach for Hannah and Nathan’s situation. It is an arrangement that can only work where the parties are relatively amicable and able to manage their own emotions well during the most difficult period of the separation. The opposite is true of the first occasion that nesting is introduced in The Split. Kate cooks for the children in their kitchen, tells them she is pregnant with their dad’s child and stays the night with Nathan in the family home, despite Liv leaving part way through the evening, drinking too much, and needing her mum to get her home safely!
When considering the financial arrangements of a divorcing couple, the housing needs of any dependent children come first. A clean break is usually the preferred goal and usually, the Court will try to achieve this by a sale of the family home or one party buying out the other.
However, in some cases the sale of the family home can be suspended until the children leave secondary education. This is only appropriate where there is no other way of ensuring the children’s housing needs are met. In Nathan and Hannah’s circumstances, it appears that the children could have always been rehoused upon the family home being sold. Where that is possible, as happened in The Split, trying to juggle a jointly owned property and a nesting agreement is often too much to take on.
In respect of financial and property matters, there will need to be an equal consideration of all the parties’ assets, incomes and pension arrangements when reaching a conclusion about what settlement is achieved for the parties.
Going through a divorce is almost always an emotionally draining experience and I think this series of The Split successfully conveys the mixture of emotions that are inevitably tied up in the breakdown of a long and largely happy marriage.
Throughout the series, tensions between the couple flare up regularly as despite both knowing their marriage has run its course, neither Hannah nor Nathan is quite over the other. There are plenty of fallings out as they argue over the details of their divorce but by the end of the season , as it becomes clear that Nathan has a chance of starting again with Kate, the pair work through their divorce settlement themselves and do end up getting the amicable divorce they had hoped for.
Divorce is a different experience for everyone. What we try to remind our clients at the most stressful times is that things do get better as the process evolves and develops. It can seem at times like things are never going to work out but people do usually come to terms with their changing circumstances and when the financial and property matters are resolved, it gives everyone the closure and stability they need to move forward.
The ‘easiest’ divorces are where both parties have a real insight into their own emotions and how that affects the decisions they make for the future. Instructing solicitors can help parties who need someone to act and advise free from emotion and the stresses caused by relationship breakdowns.
Even if you attempt to negotiate a Parenting Plan with your spouse/co-parent, it is always better to seek legal advice early on in your separation so you know what is fair and reasonable before agreeing to anything. When it comes to financial and property affairs, it is essential to get specialist legal advice as early as possible to protect your interests.
Leah Thomas is a senior associate solicitor in our Family & Matrimonial department at Harding Evans. Our expert and friendly team can advise you on all aspects of family law. For a confidential discussion about your situation, please contact the Family Law team on 01633 760678 or email firstname.lastname@example.org.