This latest divorce drama War follows international film star Carla Duval (Sienna Miller) and technology tycoon Morgan Henderson (Dominic West) as their marriage breaks down. Watching a legal drama as a family solicitor is rarely straightforward: genuine legal procedure is often compressed or altered to create tension. Just two episodes in, the programme has already raised several questions that frequently arise in real divorce cases. This article considers what War gets right, where dramatic licence takes over and what separating couples should understand before making strategic decisions.
Do you need to prove adultery to start divorce proceedings?
Much is made of Morgan’s adulterous ways, which ultimately act as a deciding factor for Carla to start divorce proceedings. The couple have been married for a long time and it is implied that this is not the first time Morgan has stepped outside the marriage. If Carla had chosen to start divorce proceedings before 2022, then the adultery would have been very relevant. Under the old divorce law, the divorcing party was required to apportion blame to the other spouse, and could rely on one of the five following grounds for divorce:
- Adultery
- Unreasonable behaviour
- 2 years’ separation with consent
- 5 years’ separation; or
- Desertion.
The difficulty with the old divorce process was that these grounds were often challenged, which led to an escalation in legal fees, deliberate non-compliance from the respondent spouse or the party having to be re-traumatised while having to give evidence in order for the court to decide whether the alleged events had occurred and whether the ground could be relied on to progress the divorce.
The Divorce, Dissolution and Separation Act 2020 introduced the new no-fault divorce process, which came into force on 6 April 2022. Since April 2022, the court is no longer concerned with who was responsible for the breakdown of the marriage. Instead, the application simply contains a statement that the relationship has broken down irretrievably. The court accepts that statement at face value and does not require either spouse to prove allegations such as adultery or unreasonable behaviour.
Other key changes included:
- The introduction of joint applicants for divorce.
- It is no longer possible to defend divorce proceedings unless it is on the grounds of jurisdiction or you are challenging the validity of the marriage.
- There is a 20-week waiting period between the issue of the divorce application and the application for a Conditional Order. This period is often referred to as the ‘cooling-off’ period to allow parties to consider if they truly wish to proceed with the divorce. In divorce, this period serves as an opportunity to begin discussions about the finances in order to reach a settlement.
- The legal terminology has changed so that:
- Petition is now Application
- Petitioner is now the Applicant
- Decree Nisi is now Conditional Order
- Decree Absolute is now Final Order
So no, you do not need to prove adultery in order to commence divorce proceedings. In practice, adultery often matters to a client emotionally long after it has ceased to matter to the legal test for divorce. A common misconception is that evidence of an affair will automatically increase a financial award or reduce the other spouse’s entitlement. Usually it will not. The more useful early discussion is whether the behaviour has affected the family finances, created an immediate safeguarding issue or made direct negotiation unrealistic. That distinction can prevent understandable anger from driving costly procedural decisions that do not improve the eventual outcome.
What is the advantage of starting divorce proceedings first?
The suspense is built up as to who will file for divorce first. There is a lot of build-up to Carla’s legal team serving Morgan with the divorce papers at midnight while at Carla’s premiere. Morgan trumps Carla’s plans by serving her a document labelled ‘Application for Divorce Financial Remedy Proceedings’.
There is usually no advantage in the financial outcome simply because one spouse starts the divorce. The family court does not reward the applicant or penalise the respondent on that basis. The practical question is whether issuing at a particular time protects a legitimate procedural or financial objective. That may matter in an international case where competing jurisdictions are available, where urgent steps are needed to preserve assets or where the parties need a clear timetable for progressing financial disclosure and negotiations.
When advising clients, I often explain that the question is not who will make the application first but rather:
- Has financial disclosure begun?
- Do we need to secure jurisdiction?
- Is there a risk of assets being dissipated?
- Should financial remedy proceedings be issued alongside or shortly after the divorce?
The answer often changes after the first detailed conference. For example, a client may initially want to issue immediately because they fear appearing weak, but the documents may show that the real priorities are obtaining disclosure, clarifying where assets are held and avoiding an unnecessary jurisdiction dispute. In another case, delay may create risk because a foreign application is imminent or assets appear to be moving. The value of early advice lies in separating the emotional importance of being first from the limited situations in which timing protects the client’s position.
Do you need to serve the divorce papers on the respondent?
In reality, the process is different and the matters of divorce and matrimonial finances follow separate processes and are guided by different legal processes.
It is common practice to send a copy of the draft divorce application to the other spouse (or their solicitors) so that any errors can be addressed or amended before the application is made.
Once a sole divorce application has been issued, the court ordinarily sends it to the respondent, who is asked to complete an Acknowledgement of Service within the applicable timeframe. This confirms receipt and asks whether the respondent intends to dispute the proceedings on one of the limited grounds that remain available, such as jurisdiction or the validity or subsistence of the marriage. It is not an opportunity to defend the divorce merely because the respondent disagrees with the decision to end the marriage.
In Carla and Morgan’s situation, if they had each made an application for divorce on the same day, the court would likely have raised this as an issue as there cannot be two separate divorce applications for the same parties.
The issue of service would only become a problem if the respondent is refusing to complete the acknowledgement of service, or is deliberately refusing to engage with the divorce process. In those circumstances, the applicant may be required to arrange service of the divorce application on the respondent so that they can ask the court to deem service of the application on the respondent and allow the divorce to proceed.
Service problems are rarely solved by repeatedly sending the same email. A solicitor will usually build an evidence trail showing what has been sent, to which address and why that address is thought to be current. Depending on the circumstances, the next step may involve personal service, an application for alternative service or an application asking the court to dispense with service. Choosing the correct route early can avoid wasted applications and months of delay.
Do separating couples have to try mediation before going to court?
“Let’s be clear, nobody actually wants mediation. The last thing any client wants is for the lawyer to act reasonable.”
This statement is made by Morgan’s legal team when they are discussing strategies. The comment reflects a tension that family solicitors encounter regularly. Clients may arrive with little knowledge of the legal framework but a powerful sense of what would be fair, particularly where trust has broken down. A solicitor’s role is not to dismiss that reaction or manufacture conflict. It is to understand the client’s priorities, explain which concerns the law can address and develop a strategy that protects the client’s interests without allowing anger to increase cost, delay or risk.
That being said, there is no reason why many of these objectives cannot also be pursued through mediation. Many mediators are also qualified family solicitors; therefore, they will be aware of the issues that will need to be addressed so that the matter is capable of resolution.
For most separating couples, the court expects consideration to be given to non-court dispute resolution before financial proceedings are started. That usually begins with attendance at a Mediation Information and Assessment Meeting, known as a MIAM, unless an exemption applies. This is where a mediator explains the available options and assesses whether mediation could realistically assist.
A MIAM is not the same as taking part in mediation: its purpose is to provide information about non-court options and assess whether mediation may be suitable. The other spouse cannot be forced to mediate, and proceedings may still be issued where mediation is unsuitable, an exemption applies or the required preliminary steps have been taken without agreement.
In my experience, mediation often works very well for parties and there are many benefits for those who may be considering this. Mediation can be more cost-effective and faster and promotes communication and cooperation. It provides a neutral forum for both parties to have their voices heard and allows them to start focusing on the outcomes they want to achieve and how to get close to those outcomes.
Successful mediation is rarely a matter of placing two people in a room and asking them to compromise. The parties need reliable financial information, a clear understanding of the issues and realistic advice about the range of possible outcomes. Where those foundations are missing, mediation can become an expensive exchange of positions. A family solicitor can help a client prepare proposals, identify missing disclosure, reality-test settlement options and record any agreement in a form capable of becoming legally binding.
Mediation may be unsuitable where domestic abuse, coercive or controlling behaviour, safeguarding concerns or a significant imbalance of power prevents a participant from negotiating safely and freely. Suitability is not always obvious from the history alone. Mediators should screen each participant separately and consider whether protective arrangements, including remote or shuttle mediation, could make the process safe without placing pressure on anyone to participate. Where reliable disclosure is unlikely or urgent court protection is needed, another route may be more appropriate.
What is the difference between family mediation and arbitration?
A mediator helps the parties identify the issues in dispute, exchange relevant information, explore options and negotiate their own settlement. The mediator remains neutral: they do not decide who is right, compel either party to accept a proposal or provide either participant with individual legal advice. If an agreement is reached about finances, its terms will ordinarily need to be recorded in a consent order and approved by the court before they become enforceable as a financial order.
A family arbitrator performs a decision-making role similar to that of a private judge. The parties choose arbitration by agreement and define the issues to be determined, which can make the process more focused and flexible than court proceedings. An award is intended to be binding between the parties, but where a financial order is required it must still be converted into an order and submitted to the family court. The court retains its supervisory role and will not simply remove its obligation to consider whether the proposed order is lawful and appropriate.
The choice between mediation and arbitration is not simply a choice between cooperation and conflict. Mediation may be preferable where both parties want control over the outcome and there is room to negotiate. Arbitration may be more useful where disclosure is substantially complete, negotiations have reached an impasse and the parties need a binding decision on a defined issue without waiting for a court timetable. In some cases the processes can be used sequentially, with mediation narrowing the dispute before arbitration determines the point that remains.
About the Author
Irrum Shah is a Senior Associate Solicitor Advocate in Reeds’ Family Law team. She advises clients on divorce, matrimonial finances and private children matters, including cases involving difficult communication, disputed arrangements and the practical consequences of separation. Her approach focuses on identifying the issues that genuinely affect the outcome and helping clients choose a proportionate route to resolution.
If you would like advice about divorce, financial arrangements or the most appropriate way to resolve a family dispute, please contact our Family Law Department by calling 0333 240 7373 or emailing [email protected].
