War (of the Roses) – What Is It Good For?

The release of The Roses starring Olivia Colman and Benedict Cumberbatch has sparked a wave of commentary from the press and family lawyers alike. A reboot of the 1989 film The War of the Roses (and with a notable drop of ‘War’ from the title), you could be excused for thinking it would take a more modern look at divorce, embracing the ‘conscious uncoupling’ of Gwyneth and Chris and the more dignified out of court processes with which we are all now so familiar. What it instead shows is that bloody mindedness and divorce are a timeless combination. Whilst it is not usually fatal in the literal sense, it can be to co-parenting relationships and finances alike.

Whilst the tactics may have moved on in the intervening 35 years – from dog pâté to deepfakes – the underlying current remains the same – hitting someone where it hurts, whether that be the family pet, beloved books or their reputation. Whilst such tactics can be deployed in all forms of litigation, divorcing couples are in a unique position and perfectly placed to know what the other party holds most dear and, in the more unfortunate cases, choose to weaponise this.

The central focus of the dispute between the Roses is what will happen to their family home, a common issue upon divorce. In both films, there is a deep-rooted emotional attachment to the family home, with one party arguing they designed it, pouring their heart and soul into every fixture and furnishing and the other arguing that they paid for it.

Unfortunately for those taking the approach of the Roses, and fairly or unfairly, the family court is not big on sentimentality. That is not to say that judges are not human but, realistically, court resources are finite and there is simply not the time to rake over who painted a wall, who keeps the sofa or what consequence there should be for smashing up a cooker. Of course, we know that such behaviour is not entirely without consequence, and it will likely give the judge a clear impression of a party if they have behaved in a certain way. However, whether that translates into pounds and pence or the desired outcome is a roll of the dice.

For anyone going through a divorce and considering a deployment of Rose style warfare, a few words to the wise.

i. Chattels or ‘stuff’

Judges hate nothing more than being asked to run through a list of (often inexpensive) items and divvying these up. More often than not, they will simply not have the time, and this can mean a separate hearing needs to be listed to deal with this, at considerable extra cost, often disproportionate to the matters in dispute. There are varying approaches to cut through this, and a particular favourite of mine is the fall-back position adopted by Recorder Taylor in KFK v DQD [2024] EWFC 78 (B):

‘I make plain, if returned to me, that I reserve the option of requiring all disputed items to be sold on eBay or the like, with the parties each being free to bid for items or to enjoy a 50/50 division of whatever net sum is produced from the sale.’

Whilst most parties manage to see sense on these issues eventually, there can be an inordinate amount of correspondence and therefore cost on this issue before that realisation dawns. A cost benefit analysis is always key.

ii. The family home

In short, it does not matter who found, secured or designed the property nor does it matter who paid for it (assuming those funds are all ‘matrimonial’ in nature, i.e. have been earnt during the relationship). Arguments about contributions are unlikely to get you very far in the majority of cases. Whilst it is sometimes possible to retain a family home if there are other resources to go around, in the vast majority of cases, that is not possible, and the family home will need to be sold. Normally, a party is expected to cut their cloth accordingly and live in a more modest property referrable to the monies available. Much like Theo, some parties will seek to retain the family home at all costs by forgoing claims to other assets like pensions or maintenance. Such an approach is inadvisable and often both short-sighted and misguided. It is not a lot of good sitting in a huge house to which you have profound emotional attachment but with an inability to pay the bills or eat.

iii. Conduct

Much like ‘stuff’, judges simply do not have the time (or inclination) to adjudicate petty squabbles. The process for properly mounting a conduct claim was put in the clearest terms by Mr Justice Peel in Tsvetkov v Khayrova [2023] EWFC 130. Of course, there are serious examples of conduct where this process will be necessary, but the key is a clear financial consequence, not just unedifying behaviour. If the stove previously owned by Julia Child’s and smashed up by Theo had been worth £100,000 then Ivy would have perhaps had a case to run in this regard. However, query whether Theo would have had the same claim in respect of the deepfake when his reputation was already in tatters…

If Ivy and Theo had not met such an end (and their case was being decided in England), what would have happened? Well, it would likely depend on how well We’ve Got Crabs was really doing and whether Ivy could extract a sufficient amount of cash. Would Theo also need maintenance given the disastrous state of his career following that unfortunate storm?

The real question, however, is whether the Roses would have managed to take stock and instruct more appropriate counsel (as opposed to a family friend and the proud owner of a rottweiler). Resolving the financial aspect of divorce constructively starts with receiving the right advice and, crucially, listening to that advice.

To the delight of most viewers, the film spends a mere 5 minutes on the legal aspect of the separation (and a misleading 5 minutes at that). The best advice for avoiding a War of the Roses style separation actually comes from another film and can be put simply – let it go.