Family and divorce law: Fact-checking and myth-busting season 3, episode 2 of The Split

Episode 2 of The Split was another drama filled episode packed with different family law themes. In this blog, family and divorce lawyer Annabel Andreou fact-checks some of the key storylines featured in the episode.

Parentage and determining parental responsibility status

In the episode we meet Gus, Bella, and Sian – Bella and Sian are married, Bella is pregnant via artificial insemination and Gus is the known sperm donor. In this scene, family lawyer, Hannah Stern, explains that Gus, Bella and Sian are entering into an ‘informal agreement’ due to the nature of the conception. This means that Bella and Sian (rather than Bella and Gus) are the legal parents and Gus has no legal rights or parental responsibilities. Family lawyer, Nina Defoe, goes onto explain that if the baby had been naturally conceived, Gus would be the legal father.

A parent, carer or guardian with parental responsibility (PR) can make decisions about a child’s care and upbringing. This story highlights that the relationship status of a child’s parents and how that child was conceived will determine the PR status:

1. When a child’s mother and father are married and the child was conceived naturally, both parents will automatically have PR.
2. If a child’s mother and father were not married at the time of birth and the child was conceived naturally, the mother automatically has PR, whereas the father must acquire this, for example by being named on the birth certificate, or by applying to the court for a declaration of parentage.
3. Where a child’s mother is married or in a civil partnership with another woman and that child has been conceived via artificial insemination, the mother’s wife or civil partner is treated as a parent of the child.
4. When a child’s mother is married or in a civil partnership with a man and the child was conceived via artificial insemination and the father was not the donor, then the mother’s husband or civil partner is considered the legal parent.
5. Where a child’s mother is not married or in a civil partnership and the child was conceived via artificial insemination, subject to certain conditions being met (regarding notice, treatment, consent etc.), the mother’s partner is considered the child’s parent.

The law concerning parentage and fertility treatment, to include artificial insemination and surrogacy, is a complex area of law and requires specialist family law advice.

Lenny’s divorce petition

In the first episode Hannah confirmed to Lenny that her divorce petition was ready. In my last blog I explained the recent legislative changes around divorce. Whilst The Split refers to the correct divorce procedure at the time of filming, the new no-fault divorce now allows separating couples to divorce without placing blame. This episode refers to the old divorce process as Lenny wants to divorce her husband because of his unreasonable behaviour and she has prepared the particulars for this, essentially listing what he has done that has caused the marriage to break down. During the episode, Lenny’s husband’s lawyer confirms to Hannah that he will be defending the divorce petition and that he does not accept the particulars prepared by Lenny.

There are a few points to clarify on this storyline:

1. Defending the divorce petition is not the same as disagreeing with the particulars.
2. Defending the divorce petition is the process whereby one side tries to stop the divorce.
3. If a separating couple accept that their marriage is over, it is very common for one side to disagree with the particulars but to still allow the divorce to continue.

Defending a divorce petition means the case will go to court. Disagreeing to the particulars will allow for the divorce to proceed. Given the costs and time in attending court, defending the divorce petition is not a decision which should be taken lightly.

Hannah and Nathan’s divorce

Towards the end of the episode we see the Hannah and Nathan divorce storyline continue. Nathan and Hannah had previously agreed the financial and parenting arrangements but now that Nathan is expecting a child is his new relationship, he now wants to vary the terms – he wants Hannah to sell the family home now (they previously agreed to delay any sale until after the children left the home) and he wants to spend one night a week at the family home with the children, pending the sale. Hannah coined the term ‘nesting’ for this type of arrangement.

In most cases, the financial arrangements of a divorcing couple considers each party’s housing and income needs and the needs of the children (if they have any). Delaying the sale of the family home should be considered carefully – can the person moving out (in this case Nathan) find another place to live without releasing equity in the property? How will the house be maintained pending sale? If there is a mortgage, what will happen with the payments until the house is sold? Equally, if Hannah and Nathan decide to sell the house now, how will they both find another place to live from the sale of the house? Will re-housing impact on the children’s schooling? How does re-housing affect the arrangements for the children to see their parents?

The nesting term that Hannah referred to where the children stay in the same property, and their parents stay with them on agreed days is one way of providing continuity and structure in the children’s lives, however there are limitations. Nesting effectively requires three properties – the house for the children, and a property for each parent. This can be very costly and will only work where funds allow.

Join us next week as we fact-check and myth-bust the topics covered in episode 3…

Read our blog post for The Split Season 3 series here:

• Episode 1: A divorce lawyer’s view of the last season of BBC’s family law drama
• Episode 3: A family and divorce lawyer’s take on ‘nesting’
• Episode 4: Dividing the family assets post-divorce
• Episode 5: Freezing order, saving relationships and second marriages
• Episode 6: A positive end to season 3 of The Split