As a family lawyer, I approach any television drama about divorce with the dread a doctor must feel watching Grey’s Anatomy. I watched episode one of Sky Atlantic’s ‘War’, George Kay’s new legal drama, fully expecting to eye-roll and tut at the screen. I did but I was also entertained.
For the uninitiated: tech mogul Morgan Henderson (Dominic West) and film star Carla Duval (Sienna Miller) are heading for divorce, each instructing rival London firms. We see both parties team’s assembling, something Kingsley Napley do at the outset of a case and regularly throughout a client’s relationship with us, as needs and requirements change and adapt.
Within 60 minutes we get a honey trap, a planted mole, a tabloid photograph and divorce papers served on a red carpet in Paris. In our team’s experience, most divorces begin rather more quietly, with a well considered email. So how would episode one’s big moments fare in real life?
The honey trap: a lot of effort for very little
Carla arranges for a friend to seduce Morgan, to arm herself with evidence of adultery. It is an intricately executed plan and, in England and Wales, largely pointless. Since the very welcome introduction of no-fault divorce in April 2022, thankfully nobody needs to prove adultery, unreasonable behaviour or anything else. One or both spouses simply state that the marriage has broken down irretrievably. This helps to keep focus on the issues that matter and importantly takes the heat out of an already difficult situation.
Nor would Morgan’s adultery impact on the distribution of the assets. Conduct only affects a financial settlement where it would be inequitable to ignore it, and an affair, however tabloid-friendly, will not clear that bar.
The “air-tight” prenup
Morgan is relaxed because of his “air-tight” prenuptial agreement. Prenups are not automatically binding In England Wales. Since Radmacher v Granatino in 2010, the court will uphold such an agreement that is freely entered into with a full appreciation of its implications, unless it would be unfair to hold the parties to it.
That test of fairness can and will look back in time and to the future. Was there financial disclosure? Did both sides take independent legal advice? Was it signed in good time before the wedding? Was there undue pressure on either party? Above all, does it leave the other spouse able to meet their needs? With two very wealthy parties, Morgan may well be right to call their agreement “air-tight” (we will have to watch to find out) but a prenup’s strength also lies in how it was put together, not solely on the outcome it leaves the parties with on divorce.
The real race: where to divorce
The most realistic moment is the least glamorous. Serving papers at a Paris premiere is high drama, but the instinct behind it, getting in first, is real. Where a couple have links to more than one country, the choice of jurisdiction can transform the outcome. London has long been seen as generous to the financially weaker spouse, while many jurisdictions give prenups more weight and maintenance less. Since Brexit, the strict “first to file wins” rule between the UK and EU no longer applies; the argument turns on which country is the more appropriate and connected forum. Speed still matters, but it is not everything.
I would add, gently, that divorce applications in England are now issued online and served by email. Less cinematic, admittedly.
The cameras
The episode ends with the couple smiling for photographers, moments after the divorce papers are served. The facts are surreal, but the message is familiar; clients are often plummeted into having to put a brave face on for family, at work and to the outside world when going through the pain and uncertainty of separation.
Clients, including those in the public eye, understandably worry about their divorce playing out in public, particularly as the family courts move towards greater transparency. Arbitration and private hearings allow disputes to be resolved away from the press. Sadly the thought or mention on Non Court Dispute Resolution (‘NDCR’) is conspicuously absent here.
Don’t forget Gabriel
Amid the scheming, Carla’s son barely registers. As Morgan’s stepson, he may well be treated as a “child of the family”, which can be relevant to financial provision. More importantly, the way the adults conduct this ‘war’ will shape how he lives through it and far beyond.
The mole
The planted associate is perhaps the episode’s most legally reckless subplot, and not only for the obvious professional conduct reasons. Kirsty Churm, my employment law colleague, tells me it is a disaster waiting to happen. Every contract of employment carries an implied duty of fidelity, requiring an employee, amongst other things, to act in their employer’s best interests and not to work for a competitor without consent, as well as an implied duty of confidentiality. A junior lawyer moonlighting for a rival firm (one that is on the other side of contentious divorce proceedings no less) would be in repudiatory breach of both contracts of employment from day one.
Most law firm employment contracts go further than implied duties, containing express confidentiality clauses and non-compete provisions, designed precisely to prevent the misuse of confidential client information. These clauses are not written with a double agent in mind; they are there to catch far more mundane transgressions than corporate espionage: a departing lawyer retaining client contact details or the inadvertent disclosure of a pricing strategy.
An associate feeding privileged material across the table would expose themselves to immediate dismissal for gross misconduct, as well as a claim for breach of contract and an application for injunctive relief. The firm instructing the mole would face its own serious exposure, including liability for inducing a breach of contract. It will be interesting to see as the series develops whether the associate’s loyalties shift. Should he turn and begin disclosing the mole operation to the firm he was sent to infiltrate, he would then be in breach of his confidentiality obligations to the firm that hired him, leaving him exposed to claims from both sides simultaneously.
The verdict?
War is glossy and fun. Just don’t treat it as a how-to guide: honey traps, moles and red-carpet ambushes make for a destructive, and expensive, legal strategy.
For help with any of the issue raised in this programme please contact us here.
