True or False: six questions which come to light in the new film, “Marriage Story”

In December last year, the new film Marriage Story was released on Netflix. The film follows the divorce of Nicole (played by Scarlett Johansson) and Charlie (played by Adam Driver), and takes us through lots of the legal and moral issues they are faced with.

The film looks at how the property they own and the theatre company owned by the Charlie are dealt with and the fact that Nicole is the primary carer for their son, Henry.

So of the six questions which come to light in the film, under English Law, are the answers true or false?

Your solicitor must always carry out your instructions – True.

In the film, we see Nicole’s lawyer ask for a greater percentage of contact time with Henry, even though Nicole has stated expressly she wants to share care equally with Charlie during the time he is in Los Angeles. In reality, this would not happen because your solicitor must, without exception or deviation, always carry out your instructions. After you have received and understood the advice, your solicitor should not push for a settlement or arrangements relating to the children which are not in line with your accurate and exact instructions.

Is it possible for your spouse to have initial meetings with multiple solicitors in order to prevent you obtaining your own advice from that particular firm – True.

This is something we see frequently, and unfortunately, is something that happens in reality. Solicitors are governed by a Code of Conduct which prevents a solicitor acting if she/he feels there is a potential conflict of interest. Therefore, if we have had an initial meeting with one spouse, in almost all cases, it would not be appropriate to then have a meeting with you. The best advice therefore is to seek legal advice as soon as possible and this will maximise your chance of securing the solicitor you want.

Your spouse can change their mind from a verbal agreement you had covering the financial settlement or child arrangement – True.

A verbal agreement has no legal basis or protection whatsoever. Whilst it is of course helpful to getting the formal legal negotiations off to a good start, it is perfectly, possible (and indeed common) for a spouse to have a complete change of heart once legal advice has been taken. Therefore, once again, taking legal advice early can either help to formalise an agreement as soon as possible, or it can also equip you with the knowledge to consider whether in fact, it is you that needs to change your position.

The “Bad Person” gets less – False.

In the film, there is a suggestion that because Charlie cheated on Nicole on a one off occasion, and perhaps has made some other slightly unwise life choices, he should be “punished” by virtue of the settlement. Under English law, his behaviour would simply not be relevant. Conduct does become relevant when it would be “inequitable not to take it into account” and that means the threshold is extremely high – attempted murder, excessive violence, serious fraud or crime would be the sorts of examples covered by this rule.

The role of “primary carer” for a child is a relevant consideration in the financial settlement – True.

As Nicole is the primary carer for Henry, we see that as a result, she is housed in a property far larger than Charlie’s. In English Law, given that the overarching principle which governs all matrimonial cases in the first instance is “needs” and more importantly the needs of a child, then necessarily, the needs of the primary carer will be considered to be greater than that of the non-primary carer. However, if the non-primary carer has overnight contact, as Charlie does, a court will still certainly want to see that this spouse has sufficient to meet the needs of the child too.

You will inevitably end up in Court – False.

Despite their best intentions, and ability to communicate fairly sensibly throughout the whole divorce process, Nicole and Charlie end up in Court with their barristers putting forward their respective cases to a judge. That is not to say that all cases end up in Court and in fact, a very small percentage progress all the way to a Final Hearing. Whilst an out of court settlement is preferable, sometimes there are circumstances which mean that is just not possible. In those cases, the benefit of having a court timetable will keep the case of track and keep it progressing as the court directions must be adhered to. Whereas, there is no “obligation” to cooperate whilst outside of the Court remit.