The Split season 3, episode 1: A divorce lawyer’s view of the last season of BBC’s family law drama

Last night many of us (including I imagine most divorce and family lawyers) sat down to watch the first episode of season 3 of The Split. The BBC drama follows the lives of the Defoe family who all work in family and divorce law. In this blog, family and divorce lawyer Annabel Andreou explores some of the storylines in episode 1 and considers whether BBC’s research team did their homework on divorce and family law.

Hannah and Nathan

In the opening scene we saw Hannah Stern take off her wedding ring and engagement ring and places them on a ‘Divorce Agreement – Proposed Heads of Terms’ document, and Nathan read through a ‘Divorce Agreement – Parenting Plan’.

Following Hannah’s affair with Christie in season 2, the Sterns’ are now divorcing and these documents seem to contain the details of what they’ve agreed about their finances and property and children. But what are these documents, and are they legally binding?

When a couple divorce, they should get a financial order that sets out who gets what after the divorce. Since financial orders are the only type of legally binding document in family finance cases, any other document prepared – such as Hannah and Nathan’s divorce agreement – can lead to financial claims against one another in the future. These could be claims on future wealth, pensions or their estate on death.

The second document we saw was the parenting plan which usually contains details about the arrangements for children such as care and living arrangements, plans for holiday and travel, and possibly financial support. Parenting plans can be a great way for separating parents to set out the arrangements for the children but they aren’t legal binding so can’t be enforced. Rather oddly, it referenced Nathan and Hannah’s eldest daughter, Olivia, who we know is 18 and starting University. If one side breaches the agreement, the other side can apply for a child arrangements order though they are usually only used until a child turns 16.

The divorced countess and grieving fiancé

In one scene we see divorce lawyer Hannah in action when her client (the grieving fiancé) finds herself arguing with her fiancé’s ex-wife (the countess) about the earl’s personal belongings following his death. We find out that the fiancé and the earl lived together as a couple for about 10 years after the countess and the earl divorced and agreed financial and property arrangements – although it is unclear if a financial consent order was ever prepared. One of the terms agreed was that the countess could stay in the cottage until the earl’s death and that this was included in his Will. The countess quickly rebuts this by suggesting that the earl later revised his Will to allow her to stay in the cottage after his death. Following the meeting, Hannah and her team ask colleagues in the contentious probate team to check the earl’s latest Will.

This storyline deals with several issues:

1. An engaged couple are not considered to be married. This means that in the event of death, the deceased’s estate will pass under the intestacy rules (if no Will is in place) or in accordance with their Will. Where there have been important life changes (such as divorce, a new relationship, getting engaged or having children), a person’s Will should be updated to ensure that their estate passes in accordance with their wishes. Where there is no Will, or the Will was not updated to reflect the circumstances at the time of death, a claim could be made against the deceased’s estate, but this can be a costly and lengthy process (if not capable of resolution before trial). The criteria for being eligible to issue such a claim is very specific, and legal advice should be taken.
2. If there is a financial order in place, it is best practice for a Will to reflect the provisions of the financial order if death will have an impact on certain assets. Where a Will differs from the terms of the financial order, the deceased’s executor will usually need to follow the sealed order unless it is unfair to do so. These cases can be complex and require advice from both a family lawyer, and a contentious probate lawyer.

Lenny’s divorce

In this episode, we meet Lenny who asks Hannah for advice about her possible divorce. Towards the end of the episode Hannah confirms to Lenny that she has the ‘initial documentation for the petition’ (i.e. the divorce petition). This storyline comes at a time where the process for getting a divorce is about to change significantly. On 6 April 2022, the no-fault divorce legislation will come into effect which means that neither party needs to provide a reason as to why they are divorcing. It is designed to make it easier for couples seeking a divorce to get one, without needing to lay blame at their spouse’s door.

With this change, comes a change to the terminology:

1. Divorce Petition = Divorce Application
2. Petitioner = Applicant
3. Decree Nisi = Conditional Order
4. Decree Absolute = Final Order

If Lenny’s divorce is going to be processed under the ‘old law’ (assuming that the petition was issued before 6 April 2022), then Lenny will need to either issue on the basis of adultery or unreasonable behaviour. I expect that we will find this out in the next episode, so stay tuned for my next blog…

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

• Episode 2: Fact-checking and myth-busting season 3, episode 2 of The Split
• 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