Sky’s War: Great Television, Questionable Divorce Law

A Solicitor Separates Fact from Fiction

Written by Shavin Fernando, Associate Solicitor at Garner & Hancock Solicitors

Sky’s new legal drama War, starring Sienna Miller (Carla) and Dominic West (Morgan), has certainly lived up to its name. Three episodes in, we have witnessed infidelity, secret informants, warring solicitors and a divorce battle involving hundreds of millions of pounds.

It makes for entertaining television. However, some of the legal advice and tactics portrayed on screen are rather questionable.

Of course, nobody watches a television drama expecting a lesson in Family Law. Nevertheless, some of the storylines risk giving viewers the wrong impression about how divorce actually works in England and Wales.

Here are six points worth understanding.

Warning: Spoilers for episodes 1–3.

1. Adultery rarely affects the financial settlement

Much of the opening episode revolves around Carla obtaining photographic evidence of Morgan’s infidelity, apparently giving her the ammunition needed to secure a more favourable divorce settlement.

Since April 2022, England and Wales have operated a no-fault divorce system. Neither spouse needs to prove adultery, unreasonable behaviour or any other wrongdoing to obtain a divorce.

More importantly, adultery does not ordinarily entitle the innocent spouse to a larger share of the matrimonial assets.

When deciding how to divide finances, the court considers several factors. It examines the parties’ financial resources, their respective needs, the length of the marriage, and the welfare of any children. Conduct is only relevant to the financial outcome in exceptional circumstances.

Being unfaithful may end a marriage, but it does not usually change the financial settlement.

2. Being first to issue divorce proceedings rarely gives you an advantage

Remember that dramatic moment when Carla is served with divorce papers on the red carpet? Morgan’s lawyers celebrate as though they have scored a last-minute winner at Wembley.

In most divorces in England and Wales, however, it makes little difference who starts proceedings.

Being the applicant does not automatically give someone greater rights to the family home, a larger share of the assets or an advantage when negotiating finances.

There are exceptions, particularly where a couple has connections to different countries and questions of jurisdiction arise. However, for most couples, there is no prize for getting to the court first.

3. Prenuptial agreements carry significant weight, but fairness remains important

By episode three, Carla’s lawyers succeed in challenging the prenuptial agreement protecting Morgan’s considerable wealth, largely by establishing that he has assumed a parental role towards Carla’s son, Gabriel.

In England and Wales, prenuptial agreements are not automatically legally binding, but they carry significant weight. The courts will generally respect an agreement freely entered into by both parties, provided they understand its implications, and it would not be unfair to hold them to it.

Morgan’s relationship with Gabriel is a relevant consideration, but it would not, by itself, invalidate the agreement.

A properly prepared prenuptial agreement can provide valuable financial protection, particularly where one party brings substantial assets, property, a business or inherited wealth into the marriage. It can also provide greater certainty, manage expectations and reduce the risk of expensive disputes if the marriage ends.

The key is to ensure the agreement is carefully drafted, with full financial disclosure, independent legal advice for both parties and appropriate provision for changes in circumstances, including children.

4. Mediation is about finding solutions, not winning

Episode two presents mediation as something of a tactical battlefield, with lawyers gathering information, testing their opponents and manoeuvring towards arbitration.

In reality, mediation is intended to help separating couples reach an agreement, not to determine who wins.

A mediator is independent and does not take sides or impose a decision. The process is generally confidential and is designed to encourage constructive discussions.

Although attending an initial meeting to explore mediation is usually required before making certain court applications, actually participating in mediation is voluntary.

Arbitration is different. Both parties agree to appoint an independent decision-maker whose determination is intended to be binding. It is not an automatic next step simply because mediation has failed.

5. Solicitors who deliberately betray client confidentiality risk being struck off

Perhaps one of the most extraordinary storylines involves Johnny, the young solicitor secretly planted inside a rival firm to pass confidential information to David Schill, a partner at the opposing firm.

This is not simply sharp legal practice. It is serious professional misconduct.

Solicitors owe strict duties of confidentiality, honesty and integrity. Deliberately obtaining and passing confidential client information to the opposing party would represent a fundamental breach of those obligations.

If discovered, both Johnny and Schill could face serious disciplinary proceedings following an investigation by the Solicitors Regulation Authority. If deliberate dishonesty were established, both would be at significant risk of being struck off the roll of solicitors, effectively preventing them from practising.

The consequences would extend well beyond losing the case or their jobs.

6. Moving money does not necessarily protect it from a divorce settlement

At the end of episode three, Morgan begins taking steps to protect his considerable wealth following the decision about the prenuptial agreement.

However, transferring assets is not a way of keeping them out of a divorce settlement.

Both spouses are expected to provide full and frank disclosure of their financial circumstances, including property, savings, investments, pensions and other assets.

Where there is evidence that one spouse is attempting to dispose of assets to prevent the other from receiving a fair settlement, the court has significant powers to intervene. For example, it can make an urgent order preventing someone from transferring property, moving money overseas or otherwise disposing of assets. If money or property has already been transferred, perhaps gifted to a relative or placed in someone else’s name, the court can, in appropriate circumstances, set aside the transaction.

The final verdict

War is compelling television, and I will certainly be watching the next episode. However, real-life divorce does not have to resemble the bitter and expensive contest depicted on screen.

Most separating couples are not fighting over multimillion-pound fortunes. They are trying to resolve much more familiar questions: where they will live, how they will support themselves and what arrangements are best for their children.

In practice, the aim is not to defeat your former spouse, but to achieve a fair and workable outcome which allows both parties to move forward.

If you are considering divorce or separation, seeking early legal advice can help you understand your options and avoid unnecessary conflict.

After all, a little less War is usually in everyone’s interests.

To discuss your options on divorce or separation, including financial settlements and prenuptial agreements, contact Shavin Fernando or a member of the Dispute Resolution Team at Garner & Hancock Solicitors.

This article provides general information about the law in England and Wales. It is not legal advice and should not be relied upon as a substitute for advice about your particular circumstances.