How “The Split” would differ in Scotland

The Split has returned to BBC One for its third and final season. I am sure many of us including most divorce and family lawyers have been tuning in to find out what the Defoe family have been up to in their personal professional lives. Here I take a look at some of the storylines in the current series and how matters would be dealt with under Scottish Law, don’t read any further if you don’t want to hear some spoilers:

The Relationship of Hannah and Nathan

Hannah Stern is our protagonist and for those of you that have watched The Split before you will be aware that her marriage with Nathan Stern has gone through a tumultuous time. In the opening scene of the first episode we see Hannah take off her wedding ring and engagement ring and place them on a document headed up “proposed heads of terms”. In Scotland this would be akin to a Minute of Agreement.

In Scotland a Minute of Agreement is used to set out what parties have agreed in relation to both child care and financial matters. It is a legally binding document although it can be subject to challenge depending on the circumstances and if the agreement is not fair and reasonable.

The Countess and Surviving Cohabitant

In another scene divorce lawyer Hannah is at a meeting with her client (the grieving cohabitant) and the deceased’s ex-wife the Countess about an Earls’ personal belongings following his death. The Countess is not represented. It would be very unusual to have an in office meeting with an unrepresented party, but it makes for good television.

In this case, the grieving cohabitant and the Earl had cohabited for around 10 years after the Countess and Earl had divorced and agreed all financial property arrangements. The surviving cohabitant had thought that was everything finalised and that as a result the countess required to vacate the cottage on the land owned by the Earl. What becomes clear during the consultation is that the Earl had made another Will leaving everything to his ex-wife.

If this were Scotland there would be nothing that the grieving fiancée could do. She would have no automatic rights to the Earl’s estate. If there had been no Will then she could have made a claim on the estate under Section 29 of the Family Law (Scotland) Act 2006.

Lennie – Divorce

One of the main storylines running through this series relates to the divorce of Lennie and Felix, Lennie being the sister of one of the Senior Partners at the firm in which Hannah Stern is also a partner.

In episode 2, we see Hannah have a meeting (in a fancy bar) with the opposing solicitor in relation to the grounds of divorce. Viewers will know that Lennie does not really wish to divorce her husband but rather that she is unwell and wants to spare him going through the process of seeing her deteriorate. As such, she has produced very brief grounds of divorce on his unreasonable behaviour, which are being contested.

Of course, in England there is now a no fault divorce so this would not necessarily be an issue now but at the time of production, this was not a possibility for Lennie.

In Scotland, there are still four ways to show a marriage has broken down irretrievably and if before two years’ separation (without consent) the only option is adultery or unreasonable behaviour. Ethically however, it is questionable whether a divorce lawyer should be acting in circumstances where they know their client is not progressing with the divorce for legitimate reasons.
It remains to be seen how this storyline will develop.