‘Marriage Story’? Rather Divorce Story: A family lawyer’s perspective on Noah Baumbach’s new film
This article was originally published in Spear’s and can be accessed here.
I expected ‘Marriage Story’ to be like any other movie in the Hollywood divorce canon; a ‘Kramer vs Kramer’ style ugly court battle or an overly idealised Rom Com like ‘Parent Trap’. I had no expectation it would go into the mechanics of separating your life from someone else’s. That it did was a surprise, although it ought not to have been, given that 42% of all marriages end in divorce.
The film depicts what happens to Charlie (Adam Driver), Nicole (Scarlett Johansson) and their son, Henry, when Nicole decides that they should separate. Noah Baumbach, the director, tackles separation and divorce in a way that other Hollywood films tend to gloss over. He asks the big questions, ‘What are my parenting rights?’ or ‘How do I afford my lifestyle?’ He depicts the human and legal elements of what it is like to deal with a broken marriage.
The film starts with Charlie and Nicole in mediation. Mediation is one of the alternative means of reaching a settlement out of court and it has several advantages.
It is often less expensive than court. In the film, legal fees play a central part and this is no different to reality. A family lawyer’s number one aim must be to try to keep the client’s costs proportionate.
It is also private. Since the incorporation of the ECHR into English law, there has been a battle between a person’s right to privacy in family proceedings and journalists’ right to freedom of expression. Although reporting restrictions can be lifted in limited circumstances, mediation is always private and it has a greater degree of flexibility. In mediation, the parties have the ability reach an agreement themselves, rather than experience the judicial equivalent of a ‘lucky dip’, when they attend court.
In ‘Marriage Story’ mediation doesn’t work out for the couple, so Nicole, instructs a shrewd lawyer, Nora Fanshaw (played by Laura Dern), to deal with their divorce.
Nicole appears to petition Charlie for divorce on the ground of “irreconcilable differences”. This is a difference between two people that makes it impossible for their marriage to continue (it is an American concept). This means that no party is at fault, so they can divorce without having to blame each other for their separation.
This is not ground for divorce in England and Wales, despite what is often misreported in our media. This is because our system does not allow for no fault divorce. Couples must either play the ‘blame game’ or wait 2 or 5 years, depending on whether they have the other’s consent to divorce.
Although ‘Marriage Story’ is a film about a divorce case, there is a great deal of discussion about child ‘custody’. We even watch Charlie have a visit from the US equivalent of a Children and Family Court Advisory and Support Service (CAFCASS) officer. These officers report to the court about each parent’s suitability as a parent.
In England and Wales there is no such thing as ‘custody’ as this is an American term. Instead we refer to Child Arrangement Orders. Such orders deal with which parent a child is to live with and when they should spend time with the other parent. There can also be shared care orders. When the court grants such orders it considers what is in the child’s best interests.
Nicole hacks Charlie’s email account and discovers that he has had an affair. It is common where one party believes that the other has cheated or is not being upfront about his/her assets for them to be tempted to hack an email account or open a confidential letter. It is vital that temptation is resisted. It is illegal and there are civil and criminal penalties that will inevitably make any divorce more stressful.
Baumbach uses lawyers to show that they can be both empowering and alienating. He shows how essential it is to find a solicitor who will devise a strategy that is in their client’s best interests. ‘Marriage Story’ shows that whilst it is important to have a lawyer with steel to back you up if needed, a constructive non-confrontational approach is sometimes the best way forward.
If you have any questions about divorce or family law, please contact a member of our Family team.