The pedant’s guide to The Split

Many family lawyers have been glued to their TV screens recently watching The Split on BBC1. However, this is nothing to do with the gripping drama involved or the acting by the cast. It is because lawyers love nothing more than nit-picking about legal inaccuracies, and The Split is full of them.

Of course, dramatists get the law wrong all the time. I have lost count of how many times I have seen legal stuff on screen which is utterly wrong. For example, Emma Thompson’s excellent performance as real-life solicitor Gareth Peirce in In the Name of the Father; it’s an excellent drama about an appalling real-life miscarriage of justice, but it wrongly shows Peirce appearing in the Court of Appeal. In 1989, Gareth Peirce would not have had the right to appear in the Court of Appeal as solicitors could not qualify as Higher Court Advocates in those days. The advocacy in that appeal was done by a barrister and Pearce would have been the barrister’s instructing solicitor.

Or the episode of Cold Feet last year when David’s horrid divorce lawyer wife decided to serve him with a divorce petition, which to the trained eye look more like a council tax bill.

Or the episode of London’s Burning when Poison Pearce consulted a solicitor about his divorce and was told that rather rudely “What do you want me to do about it?” and that there was nothing that could be done and he would get absolutely nothing. That had me shouting at the screen because from what I knew of that character’s life (long marriage, no children), it seemed to me that a much more likely outcome was that he and his wife would be expected to share their assets, perhaps equally, and that there would then be a clean break, or at worst a spousal maintenance order for a relatively brief period.

Some dramas do get it right. Denial, which covers the Deborah Lipstadt and David Irving defamation case, is excellent. I was gearing up to have a good moan about Andrew Scott’s portrayal of Anthony Julius wearing a strange collar and tabs combo, but a quick Google image search showed me a photo of the real Julius standing with Lipstadt outside the High Court and he is wearing the same weird collar.

My inevitable grumpiness when watching legal dramas usually means that once I start moaning about them, Mrs Armstrong (who isn’t a lawyer) just tells me to shut up and watch it. American legal dramas are okay though; I have no idea if they’re accurate or not.

However, I was rather hoping that The Split might not get these things wrong. There was a lot of publicity before the first episode was broadcast about how it was very accurate. Furthermore, I’ve seen writer Abi Morgan’s work before. The Iron Lady was pretty good. However, I had forgotten that she did not worry about being historically accurate in that film. It features the 1984 to 1985 miners’ strike as taking place before the 1982 Falklands War.

The Split gets it very wrong time and time again. Four episodes in, and I’ve noticed the following:

Episode 1

• To my horror, a very senior solicitor played by Deborah Findlay uses the expression “access”. No solicitor with any real knowledge or experience of family law would ever say “access”. Access Orders have not existed for almost 30 years. They replaced by Contact Orders in the Children Act 1989, which were then replaced a few years ago by Child Arrangements Orders. The expression “contact” to describe arrangements whereby children spend time with their parents does persist, probably because its replacement (“child arrangements” or “time with” is rather clumsy by comparison), but no family solicitor talks about Contact Orders, let alone Access Orders.

• Deborah Findlay instructs her solicitor daughter Annabel Scholey to “delay the Decree Absolute” like it’s some kind of drastic or fiendishly clever tactic. In actual fact, delaying the Decree Absolute in a divorce is normal practice until financial matters have been resolved. She also seems to be doing this in a children dispute case, where the relevance is mystifying.

• Nicola Walker’s character introduces herself to a new client as a “senior partner”. However, she seems to have a boss (and spectacularly fee-obsessed one at that). This is not at all realistic. Law firms tend to structure themselves in all sorts of different ways these days, but in my experience a firm usually only ever has one senior partner. The senior partner is effectively a “head of state” and sometimes also a chief executive. In episode 3, this happens again when Annabel Scholey is referred to by Deborah Findlay as being a “senior partner”, but Findlay is very clearly the most senior lawyer in the firm. I think that what these so-called “senior partners” are is what generally called equity partners; in other words, they are partners in the firm who share ownership of it (solicitors and accountants are somewhat unusual as they often have two sorts of partners; equity partners who own the firm and fixed share or junior salaried partners who don’t own any part of the firm, but who share the liability of a partner, and arguably aren’t much more than employees).

• There is an extremely odd meeting where Nicola Walker’s solicitor meets with both her client (Stephen Tompkinson) and his wife (Meera Syal), at which the husband tells the wife for the very first time that the marriage is over and he wants a divorce. I cannot imagine ever arranging a meeting where something like that would happen.

• It gets even stranger because although Nicola Walker is supposed to be acting for Stephen Tompkinson, she somehow ends up acting for his wife despite having taken instructions from Mr Tompkinson. She would have a very clear conflict of interest preventing her from doing so. The Split is full of ethically questionable stuff like this. The idea of having a case where the solicitors on opposite sides are sisters is pretty weird too, although I am not sure it breaches the rules.

• Nicola Walker’s husband (Stephen Mangan) is a barrister and we see him leaving the housing going to work, carrying a briefcase. Now this may sound a little trivial, but I’m not sure that I’ve ever seen a barrister carrying a briefcase. Despite their name, briefcases are simply not large enough to accommodate most briefs in this day and age. Whenever I see a barrister walking to court, he or she usually will be clutching a large bundle of files, or be transporting them in a wheeled suitcase or trolley of some type.

• There is also an extremely confrontational round table meeting between Nicola Walker and Annabel Scholey and their respective clients, a husband and wife who are arguing about whether or not he can spend time with their child. While all this is going on, the child is sitting in Nicola Walker’s office. I would avoid doing that wherever possible. Inevitably, the father realises that the child is in the building and starts storming around the office and demanding to see him. There is also an awful lot of “my client” and “your client” going on. This is very old-fashioned. Nowadays it is increasingly rare to see solicitors referring to their clients in this rather weird and anonymous manner. I suspect that a lot of it has to do not to remember parties’ names (we all have a lot of cases going on at once), but in a round table meeting, I would not expect solicitors to refer to “my client” instead of using their actual names, given that the client is sitting next to them.

Episode 2

• Annabel Scholey tells Deborah Findlay that she has taken care of a preliminary issue hearing for her. She makes it sounds as if this is something which takes five minutes. However, preliminary issue hearings are a huge deal; most financial cases do not have them. Preliminary issue hearings involve an additional hearing to resolve some major preliminary point before an application for a financial order can proceed, such as whether or not the spouses are bound by the terms of a prenuptial agreement or dealing with an application to set aside the transfer of an asset. The last two preliminary issue hearings I have dealt with both took two days.

• Negotiations take place in relation to a prenup between a glamour model and a footballer. For some inexplicable reason, the entire football team seems to present in the background. Nicola Walker then breaches her duty of confidentiality to the glamour model by telling Meera Syal why the model is at the office.

• Unlike Cold Feet, in The Split they actually are seen to be using the right documents. We get to see an actual Form E financial statement belonging to Stephen Tompkinson. This looks like the real deal, although (and this is a very minor quibble), for some reason it is not stapled together.

Episode 3

• There is a very weird court hearing. It is described as being an FDA. Now, interestingly, calling a hearing an “FDA” is legally inaccurate and actually quite realistic at the same time. Strictly speaking, it is a First Appointment. The following court appointment is known as an FDR (Financial Dispute Resolution Appointment). However, it is quite common for solicitors and barristers to wrongly refer to the First Appointment as an FDA (first directions appointment).

• However, it stops being realistic at that point. It is revealed that Stephen Tompkinson has not provided details of the crucial bank account and therefore Meera Syal’s barrister (wearing a very un-barrister-ish light grey pinstriped suit) says that the FDA cannot be effective and he wants a penal notice attached to an order compelling Stephen Tompkinson to provide the missing bank statements. However, this is perfectly normal at the First Appointment. The whole point is that the appointment is used to identify what documentation or information is missing and what needs to be ordered to be produced. Abi Morgan appears to be confusing an FDA with an FDR. If you turn up to an FDR without having produced a crucial piece of documentation, then it could be ineffective and would have to be adjourned to a later date. Ordering a penal notice to be attached to a directions order would be heavy-handed in the extreme at this stage and would normally only be considered where there has been a wilful failure in the past to comply with the court direction, rather than what is easily explainable was an oversight.

Episode 4

• Following an Ashley Madison-style hack, all the solicitors in Nicola Walker’s firm are told to get calling people on the list names disclosed by the hack. This is cold calling and is a breach of the code of conduct. I’m afraid that this was the final straw and I gave up watching at this point.

To be fair to The Split, the drama is quite good even if the legal stuff is hopelessly inaccurate. Inevitably Abi Morgan wants to inject a little bit of excitement into the drama. The day-to-day grind of a family law solicitor is probably far duller than many people imagine. Frustratingly there are moments when they get it right; a scene when Walker explains that you’re not divorced until the Decree Absolute, or when she says that there is a better way to sort these things out.

Normal people’s response to all of this is to say it is artistic licence, but it must be possible to at least use the right terminology without ruining the story. I just can’t face any more.

Unfortunately for us lawyers, we can’t enjoy The Split without first having to turn off our brains.

20 May 2018.

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