BBC’s The Split: the rights, the wrongs, and the quest for a good divorce

The final season of the popular family law drama The Split, which has finished airing on BBC but is still available to binge watch on iPlayer, did not disappoint – it provided viewers with drama, excitement and an insight into a variety of family law issues. It was also positive to see the show focusing on the merits of striving to achieve a “good divorce”.

Series 3 concentrates on the divorce of the protagonist Hannah Stern and her husband, Nathan. The opening episode sees the estranged couple viewing their “Divorce Agreement – Proposed Heads of Terms” and “Divorce Agreement – Parenting Plan”. As with the first two series, the show contains plenty of legal inaccuracies, the first being that the parenting plan provides for the couple’s daughter Olivia who is on a gap year before going to university. Although parenting plans are not legally binding, it is usually the case that such plans cover a child until they reach of the age of 16, so it is not appropriate for the parenting plan to reference Olivia who is 18.

As with the previous two series, we also see the lawyers (including Hannah) at Noble Hale Defoe, the fictional law firm, dealing with their own clients’ issues. Hannah has been instructed by a grieving client whose aristocratic fiancé, an Earl, has died. Advice is now being sought regarding an inheritance dispute with the late Earl’s ex-wife, a Countess. The myth of “common-law marriage” seems to be an issue here, and whilst the Earl and fiancé were engaged, they were not married and as such the fiancé will not have the same rights available to her as a widowed wife would.

We also met Lenny, who instructed Hannah about her divorce. The first episode aired on Monday 4 April 2022. The no-fault divorce legislation came into effect on Wednesday 6 April 2022. Hannah refers to Lenny’s draft “divorce petition” which has been prepared on the basis of Lenny’s husband’s unreasonable behaviour. Given that Lenny’s real reason for divorce was due to her own ill-health, the particulars which she did prepare were unexpected by Lenny’s husband and caused conflict – it may have been more appropriate for Hannah to advise her to wait until the new law came into effect and issue a divorce application where no particulars would have been necessary.

At the start of the season, Hannah and Nathan agree that she shall remain in the family home and delay any sale until the children have left home, with Nathan spending time with the children at a property of his own. As the season unfolds, we discover that Nathan is expecting a baby with his new partner, Kate, and seeks to vary the arrangement agreed, with the family home being sold, and Nathan spending one night a week at the family home with the children, pending sale. This type of arrangement is often referred to as “nesting”.

Nesting is a type of arrangement whereby the children stay in the same property, and their parents stay with them on agreed days. A benefit of such an arrangement is that it provides for stability and structure for the children, however the obvious disadvantage is that it can be very costly and simply not an option if funds do not allow for this. Nesting requires three properties – the house for the children, and a home for each parent. In addition to this, without very clear provisions about the practical arrangements (utility bills, insurance, food, even cleaning rota and taking the bins out), then further arguments and difficulties can arise. Furthermore, a nesting arrangement frustrates the opportunity for there to be a clean break at the earliest opportunity. Overall, nesting should only be considered if the facts and funds allow for this, otherwise alternative arrangements should be considered such as a Mesher order or the family home being sold with the proceeds being split in a way that meets the parties’ needs.

The nesting arrangements prove unworkable and Nathan’s solicitor proposes that the property now be marketed for sale. Hannah seeks to argue that the family home was bought with money she inherited from her great-aunt and that she therefore deserves a larger proportion of its value. While inherited wealth is often a contentious issue, as an experienced family lawyer, Hannah would know that after a long marriage, any inherited wealth may have been mingled with the couple’s matrimonial assets and would therefore be part of the marital pot to be split between them. Inherited wealth most certainly has been mingled in the case of the Sterns as it was used to purchase the family home (a matrimonial asset).

Despite the legal inaccuracies, some of the subplots were spot on from a legal standpoint. For example, one storyline sees Tyler, the fiancé of Zander, the firm’s managing partner, being exposed as a fraudster and an urgent freezing order application is made against Tyler accessing Zander’s assets. As readers will be aware, freezing orders are used to prevent someone from selling or transferring an asset (such as property or bank accounts) and can be an effective way to ensure that assets are not distributed pending financial settlement and divorce. Any application for a freezing order should be considered carefully, given that it can be costly, and strict conditions must be met.

As a fairly affable character and a family barrister himself, Nathan’s choice of lawyer, the formidable and highly litigious Melanie Aickman, felt unrealistic. Later, Nathan comes to his senses and dis-instructs Melanie and tells her “You’ve never asked me what I want. You just tell people what they’re going to get at whatever cost”. Melanie’s conduct is contrary to Resolution’s Code of Practice, which as we all know promotes a constructive and amicable approach to dealing with family law.

The Code of Practice requires Resolution lawyers to “explain all the options (to the client) and give (the client) confidence to make the right decisions”. Melanie just tells her clients what they are going to get, without ever giving them the information and guidance they require to make their own decisions. As family lawyers, we must provide our clients with the tools and knowledge they require to make informed decisions about their finances and assets which are in their best interests and meet their current and future needs.

As the show progresses, we see Nathan and Hannah strive to achieve a “good divorce” and it was positive that this became a key focus of the series; efforts made to support the children and co-parent were very positive, and it was refreshing to not hear any references to the term “custody”. Nathan and Hannah will always be tied together by their children, and it is important their divorce is managed well so that they can continue to support their children.

The final (ever) episode brought closure, and rather pleasantly, there was a happy but realistic ending illustrating perhaps that some marriages are simply finite but not failures. Despite all the Stern family drama throughout the series, the show can be commended for demonstrating how families can work through relationship breakdown in a positive way and, post-divorce, move on with their lives.

At the end of the final episode, Ruth Defoe, Hannah’s mother and a consultant at Noble Hale Defoe invites Hannah and Nathan onto her podcast, where they discuss “the good divorce”. Hannah explains that divorce is hard, but urges clients to “lay down their weapons, their accusations, their resentments … and wait for the dust to settle on what’s left of their lives … and listen to what life has to offer next”. This important advice echoes that of all good family lawyers who will provide empathy and support, and help their clients to resolve their divorce in a swift, amicable and constructive way.