Family Law

Noah Baumbach’s divorce comedy has hit Netflix, dividing viewers into those who back Adam Driver’s, Charlie and those who support Scarlett Johansson’s, Nicole.

Charlie and Nicole are an artistic couple living in Brooklyn with their 8 year old son, Henry. Both parents work in the theatre; Nicole, a former teenage movie star, is a leading performer in the stage company that Charlie, himself a sometime actor, directs. What we know of their life together is conveyed in an opening montage in which each spouse, in turn, lists the things they love about the other. They’ve compiled these lists at the urging of the mediator hired to help them through their separation.

There is a moment early on in the film where, the actors Driver and Johansson are like: ‘What’s there to fight about? This is going to be easy; we will take half each and go our separate ways.’ The naivety of that assumption is revealed after the couple lawyer up. This is certainly the perspective of the divorce lawyers who soon replace the mediator. Papers are served. Voices are raised. Henry, whose well-being is supposedly everyone’s primary concern, is pulled back and forth, his life is hauled in different directions. The couple eventually find themselves in a courtroom, side by side, however, never further apart, wondering what had happened to their amicable split.  What follows as an amicable split becomes a shattering separation, reeling from awkwardness to rage in search of a new balance. It is an observation about happy and unhappy families. Happiness is unique, inexpressible, a state that exists outside of narrative. Misery is what makes you just like everyone else.

Marriage Story is a love story that ultimately ends in divorce. Two people who once adored each other are now living apart, co-parenting and building newly separate lives, however because of their child, forever intertwined lives. As is depicted by the film, this is the marriage story for almost 50% of married couples, which translates to almost 2,000,000 people every year. We already know the beginning and the ending; therefore, it is time to change the middle: how we divorce?

In the UK, the blame game will be alleviated by the introduction of “no-fault divorce”. The proposed law is in a bill before parliament and will, the government promises, speed up the process and remove “needless antagonism”.

Under current law, couples seeking to divorce must provide evidence of one or more of five facts to establish the irretrievable breakdown of their marriage. These are adultery, desertion or unreasonable behaviour by one of the spouses; two years' separation if both parties consent; or five years' separation without consent.  This undoubtedly throws people off balance quite early on. It is hard for people understand how intertwined their lives become as a married couple, and how hard it is unpacking those arrangements.

Announced in the Queen’s Speech in December, the Divorce, Dissolution and Separation Bill proposes the first change to divorce law with the government describing the legislation as "the biggest shake-up of divorce laws for 50 years. The changes would reduce the impact of unnecessary conflict on couples and their children. 'No fault' divorce already exists in Scotland where a marriage has irretrievably broken down. The new bill will begin its parliamentary passage in the House of Lords. The bill is supported by bodies including the Law Society, “these changes, if approved, would have several benefits for divorcing couples and their families, reducing the number of contested divorces and resulting in swifter financial agreements being reached between divorcing couples.”

The government has proposed instead allowing one or both spouses to initiate a divorce by making a statement that the marriage has irretrievably broken down. It intends to retain the existing two-stage process of decree nisi followed by decree absolute. A new minimum period of 20 weeks from the start of proceedings before the court will be able to make a conditional order of divorce, in order to provide couples with a period to reflect on their decision and to seek counselling and mediation where appropriate. The new law would also abolish the ability to contest a divorce, which the government says would protect victims of domestic abuse. Divorce applications could still be challenged on jurisdictional or procedural grounds, or on the basis of fraud, coercion or legal validity of the marriage. Parallel changes would be made to the law governing the dissolution of a civil partnership, which broadly mirrors the legal process for obtaining a divorce. These changes, if approved, would have several benefits for divorcing couples and their families, reducing the number of contested divorces and resulting in swifter financial agreements being reached between divorcing couples, with benefits including a reduction in the scope for wealthy individuals to dissipate their assets.

There are lessons in the film for any couple setting out to sever ties, even if theirs is truly an amicable divorce.  Once the process of working out rights and obligations begins, it can go in a very different direction, in some cases all it takes is one spouse thinking the other has ‘broken the agreement’, so to speak, and or is acting in bad faith, and the wheels can come off very quickly. It is easy to blame lawyers, particularly if the process is unfolding counter to expectations, however, those were likely unrealistic or uninformed from the start of the proceedings. The truth is, more often than not, that change in position is coming from the spouse. People hide their true intentions behind their lawyer all the time. Frankly, that’s part of what they are paying for.

The end of a marriage is the beginning of a new and different life for two people and their children. There is no mystery; we already know everything we need to know about how divorce works. 

Marriage Story is not simply a cautionary tale. Marriage Story is being played out by hundreds of thousands of families across the world today. The names are different, the location is different, the relationship is different, however, the story is very much the same. If couples are considering divorce, it is important for them not to allow the thought “I would never allow that to happen to me” or worse, “my situation is different, so I really do need a lawyer that is a shark”. Charlie and Nicole’s story is poignant because it started out as an amicable divorce and it went sideways. However, a divorce that starts out as high conflict ends up in exactly the same scene where each is destroying the other and each is using every last cent to fund it. Does the fact that there is conflict in the relationship justify that end, the complete destruction of a family, their financial status and relationship with their children? Amicable or not, is this a process we want to continue to pursue to assist us in unwinding a marriage contract?