20th Jan 2020

Marriage Story: A review (of sorts) by an English matrimonial solicitor – lessons to learn?

By Daniel Coombes

The film Marriage Story is a portrait of married parents, Nicole (Scarlett Johansson) and Charlie (Adam Driver) as they divorce, and their involvement with the legal process. Noah Baumbach’s latest film has been well received – it is nominated for 6 Oscars and 5 BAFTAs. There are certainly great performances but is there anything for those going through separation/divorce to learn?

The first, and perhaps obvious, point to make is that the film is set in America where the legal system is very different to that in England (and Wales). Despite this, there are points of commonality.

The second point to make at the outset is that the lawyers are not given a glowing reference – as my partner commented not long in to the film “your profession isn’t coming off well in this”.  She’s right. The main lawyers are aggressive and often dictate the agenda rather than offering advice and taking instructions; they effectively override their own clients at points. It is sad that the only lawyer who actually makes some insightful and family-focussed points is portrayed as somewhat bumbling, in the twilight of his career – he ends up being sacked in favour of someone more aggressive.

A fundamental take away from the film, regardless of where a divorce is taking place, is that if mediation has a chance of working, more effort should be put into it. Mediation (a process by which a neutral third party helps a couple to agree their own outcome) is not easy at times – it requires effort to ‘stay at the table’. Nicole and Charlie do not, in my view, give it anyway near enough endeavour. They fall at the very first hurdle and the process is not given a chance to get underway to explore whether it might work. The film, in fact, is a very good advert for mediation: once the couple ‘lawyer-up’, it all starts to wrong for them.

Having said that, the problem for them is the type of lawyers they (finally) chose to instruct. For mediation to work well, legal advice should run in tandem – but this is best where the lawyers are supportive of the mediation process (ideally trained as mediators themselves) and recognise its pros and cons. Some cases are not suitable for mediation and robust legal advice is needed – but there is a world of difference between robust and aggressive.

If mediation is inappropriate and you are embarking on a lawyer-led process, consider a ‘round table meeting’. In England, these are can be conducted with all parties around the same table but, frequently, separate rooms are used: you will be in one room with your legal team (usually solicitor and barrister) and your spouse will be in another with their legal team. The barristers will then meet in a neutral space and exchange offers / have conversations, returning to their ‘camp’ to report and discuss before reconvening in the neutral space.  This ‘shuttle’ process is much less stressful than the method shown in the film, and prevents the meeting turning into a mud-slinging exercise or a display of bravado and showing off by the lawyers.

Another key difference between the US and England is that, here, the legal profession is divided into solicitors and barristers (“counsel”).  The analogy I like to use is that of the medical profession: the solicitor is like the GP and the barrister is like the consultant.  The solicitor spends time with the client, deals with the other side and manages a case – gathering / setting out the evidence etc; we also obviously advise. The barrister conducts the advocacy in court and advises on more difficult aspects.  Because barristers are in court most of the time (while solicitors are in the office), they are often best-placed to advise on settlement parameters in the more difficult cases. They can be invaluable in the ‘round table meeting’: they are best able to impart the hard realities of the alternative – a court determination and the fact they are one further ‘step removed’ can help diffuse any difficult dynamics (particularly helpful if your spouse’s solicitor is less helpful). Rightly or wrongly, people also sometimes simply accept a counter-view more easily from a barrister. Another option in England is the ‘Private FDR’ or ‘early neutral evaluation’ – but that it a whole other topic (which I can explain another time if you want me to).

A significant benefit that both mediation and a round table meeting (and a Private FDR or early neutral evaluation) share over court is that they are private. The court scene in the film is far from private: there are lots of other people waiting in the courtroom, all of whom hear the mud being slung in the benches in the front. Courtrooms are not like that here, but hearings may not be entirely private.

Moving away from process options, there are other points to take from the film:

Get advice early on – a central difficulty for Charlie is that Nicole and their son had moved state before they started to resolve the issues that flow from separation and divorce.  ‘Jurisdiction’ issues significantly complicate cases and make them much more expensive.  If you have links with other possible jurisdictions, it is vital to get advice early on as the ramifications of failing to do so can be disastrous.

As Charlie in particular finds out, funding lawyers can be stressful and can be a real challenge. However, legal advice is likely to be necessary and getting good legal advice can ultimately lead to a saving of cost overall (emotional as well as monetary). Ideally, you want to have funding in place so that you can secure representation throughout the process but, if money is tight, use it wisely: I suggest you prioritise getting representation for any court hearings and to help you deal with key preparatory stages such as preparing witness statements, preparing your ‘Form E’ (financial disclosure) and at the ‘Questionnaire’ stage.

Choose your lawyer wisely and get a specialist.  I would recommend a solicitor who is a member of Resolution – we follow a code of conduct which is designed to try to avoid unnecessarily raising the temperature. Not being aggressive does not mean being weak; indeed, it can be a ‘selling point’ to the Judge (and therefore help your case) if you are seen to be less aggressive and more child-focussed.

It would be sensible to find out about your proposed solicitor’s ethos and speak to a few to get a sense of them and whether you think you will ‘click’. Approaches to beauty parades vary. Personally, if I am giving advice, I will want to charge – good advice is worth paying for. The film illustrates a good point here: Charlie tries to engage one lawyer but as he arrives for his meeting is told by the receptionist that his intended lawyer cannot see him after all, because Nicole had previously obtained advice from him – so he is conflicted out of representing Charlie. This is rare, but it does sometimes happen. In reality, London has too many good matrimonial lawyers for one spouse to go around getting advice from everyone to significantly limit their spouse’s choice (it would cost a fortune!). I add that, in England, a (good) receptionist would never say what the receptionist in the film did: the obligation to client confidentiality is such that one cannot divulge who a solicitor has previously given advice to – even if it is your spouse. You have to draw your own conclusions if you are told a firm cannot act for you but they seem unable or unwilling to say why.

Remember who is in the driving seat: you are. A number of times in the film Nicole and Charlie discovered that their lawyers had said or done things on their behalf that they had not expected or even wanted them to do or say. This went so far as to actually change the overall care arrangements to be put place for their child. The fundamentals of the relationship are that clients instruct and the lawyers act on those instructions.  A note of caution though: it is not uncommon for your spouse to say one thing to you while a letter from their solicitor says something rather different. Sometimes this is because they are telling you one thing and their solicitor another; at other times it may be that they genuinely intended to do as they indicated to you, but were persuaded otherwise (for good or for ill) by their solicitor.

Another salutary lesson from the film is to try not to have a massive, no-holds, barred screaming match. Even if there are no children within earshot (if there are, it goes without saying such behaviour should never happen), you might think it will feel good to get off your chest all those points you’ve been harbouring for years, but a moment after it’s done you’ll likely regret it. What is said (or yelled, in the case of Charlie) cannot be unsaid. Aside from the emotional trauma you might feel after unloading, it might make it very much harder to settle your case on decent terms.

Be aware of the dynamics of wider family and friends – your own, as well as your spouse’s.  Beware the ‘helpful’ friend whose well-meaning advice is actually unhelpful – and remember (a) every case is different (so while your friends’ friend may have been awarded X, your friend may not know the key detail as to why that was appropriate) and (b) the law changes (so what might have been achievable X years ago may not be now).

Resist any temptation and don’t hack your spouse’s computers, emails and other electronic messages; or access their hard-copy mail and documents etc. Doing so can be detrimental to your case and you could even be guilty of a criminal offence. I was once involved in a case where the wife went so far as to take my client’s laptop because she felt it had useful information on it that she wanted to access. We got it back (without her accessing the data) and she was severely criticised by the court.

Finally, and saving one of the most important lessons to last: when sorting out arrangements for any children, put their best interests front and centre. Avoid the metaphorical (let alone physical – as when Nicole and Charlie’s son is supposed to be getting in the car) pulling them apart. Try not to be fixed on ‘my night’ – it is not until the film’s closing that we see much improved and enlightened co-parenting by Charlie and Nicole as separated parents.

So, should you see Marriage Story if you are a parent in England about to divorce? Personally, I preferred another of Scarlett Johansson’s films entered into the awards season this year: the somewhat controversial JoJo Rabbit; and had my boys seen Marriage Story, I’m sure they would have preferred Adam Driver in Star Wars: The Rise of Skywalker. However, on balance, yes I think you should see Marriage Story – it shows you how not to divorce.

For information or advice regarding any of the topics discussed in this blog or for independent legal advice, please contact Family Law in Partnership on 020 7420 5000 or contact us at: hello@flip.co.uk