In this blog, my focus shifts from the big screen to the small, as The Split returns to dominate the Tuesday night prime time spot on BBC1.
Series 2 wastes no time in delving full throttle back into the world of Hannah Stern (played by Nicola Walker), a high-flying divorce lawyer juggling her increasingly turbulent personal life with the demands of the fast-paced world of London’s divorce law circuit. Here are just some of my observations on the first two episodes of the second series.
Episode 1
In episode 1, we are introduced to Fi Hansen, a media personality and Hannah’s new high net worth client. Fi meets with Hannah to discuss whether the pre-nuptial agreement that she and her husband, Richie, entered into 14 years ago will “protect” her.
A pre-nuptial agreement is a legal agreement entered into by two individuals before their marriage. The agreement will usually set out how the couple wish their assets and income to be divided should they later separate or divorce. On divorce, it is open to parties to agree to either uphold the terms of the pre-nuptial agreement or amend those terms if both parties feel that this is fair and necessary. However, if one party wishes to uphold the pre-nuptial agreement and the other does not agree, it will be for the court to ultimately decide whether to uphold its terms or deviate from them.
The law relating to pre-nuptial agreements has developed following the Supreme Court decision in Radmacher v Granatino in 2010. As the law currently stands, pre-nuptial agreements are almost as good as binding, provided they are fundamentally fair. Pre-nuptial agreements will be considered as binding if the court is satisfied that:-
- There has been material financial disclosure.
- Each party has had the opportunity to seek independent legal advice.
- The basic vitiating factors of fraud, duress or misrepresentation are not present.
- Both parties entered the agreement in a calm rational state, in good time prior to the wedding.
- The agreement was fundamentally fair at the time it was entered into.
- The pre-nuptial agreement does not attempt to fetter the reasonable requirements that any future child or children may have.
However, even if decisive weight is given to a pre-nuptial agreement, the court still has the discretion and the power to make financial awards on divorce on different terms. The court’s starting point is to examine the factors set out in section 25 of the Matrimonial Causes Act 1973. A pre-nuptial agreement will be only one of those factors. That being said, providing the pre-nuptial agreement meets the criteria outlined above, Fi and Richie should expect to be held to its terms.
Episode 2
Having discovered that Richie has slept with the nanny, Fi concludes that she wants to divorce.
In England and Wales, a divorce can be applied for where a marriage has irretrievably broken down and that break down must be proved by one of five facts:-
(a) Adultery.
(b) Behaviour (i.e. that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent).
(c) Two years’ separation by consent.
(d) Five years’ separation.
(e) Desertion.
As Fi and Richie have been married for over a year, Fi can start divorce proceedings immediately by issuing a divorce petition based on Richie’s adultery or his behaviour.
To establish the fact of adultery, Fi must prove both of the following:
- Richie committed adultery. Adultery is defined by case law as voluntary sexual intercourse between a man and a woman who are not married to each other but one or both of whom is or are married. Ideally, Fi should try to obtain a signed confession statement from Richie before starting proceedings. This will save them both the time and costs of any argument regarding whether the adultery took place (although I am sure the press and indeed the nanny would be willing to assist in that regard).
- Fi finds it intolerable to live with Richie.
Generally, it is not advisable to name the person with whom their husband or wife has committed adultery in the divorce petition (known as the “co-respondent”). Doing so often leads to increased acrimony between the parties at what is already a difficult time for all involved. Naming a co-respondent also complicates matters procedurally, as the petition would have to be served on them and they would need to cooperate. Should the co-respondent evade service of the Court papers or otherwise refuse to cooperate, this would result in a needlessly dragged out, expensive and acrimonious divorce. My advice would differ in Fi’s case if Richie indicated that he intended to defend the divorce proceedings. In those circumstances, the Family Procedure Rules do permit the naming of a co-respondent.
Fi could alternatively rely on the fact of Richie’s behaviour. In this episode, we see that Fi has already prepared a list of examples of Richie’s behaviour for this purpose. Those examples include “Demands I do not see certain friends and family members” and “controls my every move” and “comments on my clothing and appearance”. If I were acting for Fi, I would include 4 to 6 of those examples in the divorce petition and draft them in such a way as to keep them as anodyne as possible (albeit true) whilst still passing the legal test that is applied. Some parties find it helpful to try to agree the particulars of behaviour before the divorce petition is filed at Court.
If you would like to speak to a family law specialist about any of the issues raised in this blog or featured in The Split, please get in touch.
The Split is broadcast on BBC1 at 9pm on Tuesdays and is available on BBC iPlayer.
