It’s been over two years since BBC’s The Split left our screens, and since our family and divorce lawyers wrote their last blog on the show that centres around the Defoe family of divorce lawyers.
But the divorce and family law drama was back on our screens over the Christmas break with a two part special set in the outskirts of Barcelona. Despite it being a mini spin-off to the main show, the drama levels didn’t disappoint. Family and divorce lawyer Helen Clyne explores some of the key storylines and considers whether BBC’s research team did their homework on divorce and family law.
Best practice for a pre-nuptial agreement
The first episode focuses on Liv as she prepares to marry Gael, who is set to inherit significant family wealth, in the idyllic Catalonian countryside. Gael’s parents insisted that Liv signs a pre-nup to limit her claims for a share of Gael’s finances should they divorce. Nuptial agreements are commonly entered to protect family wealth, however it’s only worth the paper it is written on if it is properly entered into. Whilst currently not legally binding, a judge would normally uphold a pre-nup agreement if they considered it fair and reasonable and implementing the terms will enable the couple to meet their respective needs and the needs of any children.
There is also best practice on how the pre-nup should be prepared. For example, both parties must receive independent legal advice before signing an agreement. Liv’s mother, family lawyer Hannah Defoe, represented her in negotiating the pre-nup terms which isn’t best practice given the conflict of interest.
The agreement should also be signed at least 28 days before the marriage to avoid any future argument that anyone was under pressure to sign. Gael’s wealthy parents put pressure on Liv to sign the pre-nup just a day before the wedding ceremony.
Given the proximity to the wedding, I would advise Liv and Gaelto enter a post-nuptial agreement instead after the wedding. That way the couple can have as much time as they need to consider and negotiate the terms of the agreement and there can be no later argument about either being under pressure to sign the agreement. However, that leaves open the risk that one person decides not to sign a nuptial agreement after the wedding. The best approach therefore is to allow at least six months for getting a pre-nuptial agreement in place to avoid rushing and feeling under pressure close to the wedding.
Another factor that should be considered in this situation, is that if Gael is domiciled in Spain and most, if not all, the family assets are held in this jurisdiction, Liv should also get legal advice from a Spanish lawyer on the status of the nuptial agreement in Spain and how likely their courts would uphold it.
Spoiler alert! True love prevailed and at the end of the second episode, Liv and Gael married without signing any legal documents. This was the best outcome for Liv who has not limited the financial claims that she could make if their marriage breaks down.
Review your pre-nup to factor in life changes
One other major storyline (another spoiler!) sees Gael’s father’s affair coming to light at the end of the first episode. Gael’s parents, Alvaro and Valentina, had signed a pre-nup, albeit on a restaurant napkin, the night they got engaged 30 years ago that was witnessed by a friend who was a newly-qualified solicitor. This would be very unlikely to be upheld in England; the position may be the same in Spain.
The courts in England and Wales do respect the autonomy of those who enter a nuptial agreement setting out how their finances would be shared on divorce and can make orders to give effect to the agreement, even if it departs from orders the court would otherwise make. However, nuptial agreements do need to properly entered into. Both individuals need to obtain independent legal advice and set out their financial circumstances fully and openly. The napkin nuptial agreement did not comply with either of these conditions.
Like a Will, you should review your pre-nup regularly (after marriage it becomes a post-nuptial agreement) to ensure it’s fit for purpose and factors in major changes such as having children or changes to wealth.
Straight after Alvero’s affair is uncovered, Hannah, in divorce lawyer mode, advises Valentina that if she wants to divorce she should strike first and that she can represent her. Within minutes Hannah has her sister and mother (both family lawyers) on the hunt for a Spanish lawyer to issue the divorce petition before Alvaro can intercept. We can assume Hannah is not qualified under Spanish law so in these circumstances, she should have advised Valentina to get independent advice from a Spanish lawyer, though that would not have made for great tv!
Racing to issue divorce proceedings first is usually only necessary where there may be two countries who could have jurisdiction to deal with it and issuing with the preferred country means the divorce will be dealt with there. I can’t comment on Spain’s matrimonial laws, but the family law of England and Wales is known to be one of the most favourable to wives in the world. Therefore, if there was any reason for England and Wales to have jurisdiction, it might have been more advantageous to issue here, rather than in Spain. Other than where there are competing jurisdictions, it makes no difference to who issues first in England and has no impact on how the finances will be shared. I certainly would not advise a client to issue divorce proceedings the day they have discovered their husband’s affair.
The mini-series ends with Liv and Gael’s wedding and a big question mark around what will happen to the marital pot of Alvero and Valentina, especially given the lack of a properly drafted pre-nup.
The main lesson learned from The Split Barcelona? If drafted correctly and provided for both sides, a pre-nup is the best way to protect family wealth in case of future divorce.
Read back on blog posts from The Split season 3:
- The good divorce: A positive end to season 3 of The Split
- The Split season 3, episode 5: Freezing orders, saving relationships and second marriage
- The Split season 3, episode 4: Dividing the family assets post-divorce
- The Split season 3, episode 3: A family and divorce lawyer’s take on ‘nesting’
- Family and divorce law: Fact-checking and myth-busting season 3, episode 2 of The Split
- The Split season 3, episode 1: A divorce lawyer’s view of the last season of BBC’s family law drama
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.