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Divorce isn’t an issue for employers- or is it?

42% of the married population will get divorced. The most likely age to do so is in your 40s, so this is an issue which is regularly affecting the workforce, and often those in more senior or managerial roles.

But what, if anything, should employers be doing to support these employees? Most have no idea what they can, or should, do to help. 

Separating couples need to work together on divorce. They either have to reach a consensus or a result will be imposed upon them by a Judge, after a long and expensive Court process. To help couples collaborate we need as a society to break down the stigma surrounding divorce and the way it is perceived in society. The support network around a couple is of huge importance in framing a positive approach to divorce, and employers can play an important, supporting role. 

How does divorce impact families? 
If you had a blank sheet of paper, it would be hard to devise a worse process for unravelling an intimate personal relationship than the adversarial court process. It pits couples against each other, breeds mistrust and breaks down communication. 

For that reason Family Judges are urging couples to stay away from Court, and treat it as a place of last resort, not a default starting point. 

The harsh reality is that, at the end of the day when the proceedings are over, all the lawyers go away, and a couple is left having to manage their relationship, as co-parents or simply as fellow human beings, with shared experiences and memories, not all of which are bad. 

Numerous studies have been undertaking which demonstrate, quite starkly, the toll Court proceedings take on the families involved and the impact on their mental health. A Harvard Study of divorcing men and women found that it takes twice as long to recover from a divorce than it does from a close bereavement (1 year for bereavement and 2 years for divorce).  

Between a third and half of all adults going through divorce report levels of mental distress sufficient to diagnose clinical depression. Men are particularly at risk- the Samaritans have described a causal link between relationship breakdown and suicide, and research has found that the risk of suicide amongst divorced men is almost three times higher than married men. 

But on refection this is, sadly, unsurprising. Despite affecting 42% of marriages, divorce still attracts huge societal stigma- it is associated with unhappiness, stress and financial pressures. There is a general presumption that divorce is not going to be easy to navigate (when in fact it can be, with the right support and advice). The daunting nature of the process is compounded by an adversarial, expensive and lengthy legal system, drowning in jargon. And this all comes at a time when many couples are facing the fracturing of their support networks- losing ties to friends and extended family members. It is unsurprising that the compounding affect is to make it very hard for those adults going through divorce to function properly, both at home and at work.

An adversarial, contested divorce also, again unsurprisingly, impacts the children involved. Again the research is stark. In January 2019 Teresa Williams, Director of Strategy at Cafcass produced a report for the Nuffield Family Justice Observatory at the request of the President of the Family Division. The research found that 130,000 couples with dependent children separate each year in England and Wales. Of those, 50,000 end up in court proceedings about their children. So 38% of all separating couples end up in Court about their children. This came as a huge shock to the legal profession as a whole- anecdotally we had believed the figure to be 10%.  

The report argued for a public health approach to these huge numbers of children caught up in the Family Justice System, because of the damaging impact Court proceedings have on the children involved: “The court process itself risks escalating conflict to a point where it becomes harmful to children and there is a strong argument for diverting applications to alternative dispute resolution where there are no child protection or welfare concerns… In Cafcass’ experience, once cases reach courts disputes are often entrenched, and the opportunity to intervene is more limited. An application to court is in many cases part of a process of parents abdicating responsibility and starting to attribute blame.” 

As a result the President of the Family Division has been urging all family lawyers to find better ways for separating couples to resolve disagreements over the division of their finances or arrangements for their children other outside the Court arena, including Mediation (by which a couple are helped by a mediator who cannot legally advise them but can help them negotiate), Arbitration (whereby the couple privately instruct and choose their own arbitrator) and One Couple One Lawyer (by which couples share one experienced family lawyers who advises them both impartially as to what a Judge would consider fair in their situation). These initiatives are all supported by the Judiciary, and Mr Justice Cobb recently published a paper calling for radical and systematic change of family law dispute resolution. 

Why is this an issue for employers? 
Again the academic studies demonstrate the issue. A Resolution study found that only 10% of employees think their employers do enough to support them during family breakdown. The cost of divorce to the UK economy is £48 billion. 

A You Gov poll was undertaken with 500 high earners (earning £100,000pa to multi million pound packages) and was recently reported in The Times. 69% of those interviewed admitted ‘significant’ problems in their relationships in their current or similar role. The quote from one employee sets out the crux of the issue: “I get the sense that most employers believe you should leave all home problems at home. Yet employers expect work to be able to intrude on your home life. This has to be a two way street.” 

A study by the Nashville Business Journal highlighted the impact a divorce can have on productivity at work. It found that in the 6 months leading up to and in the year of divorce, the divorcing employee’s productivity is reduced by 40%. Productivity will suffer on some level for 7 years. And in the 6 months leading up to and in the year of divorce, the productivity of the divorcing employee’s co-workers is reduced by 4% across the board. 

So what can employers do to help? 
The reality is that for many years employers have wanted to offer more support to their employees on relationship breakdown, consistent with the UN Sustainable Development Goals. However, the last thing an employer wants is to become embroiled in an adversarial process, or risk exacerbating a power imbalance which already exists by offering help and support to one spouse and not the other. 

However, what is clear from the mental health studies, and employees’ own attitudes to how little support they are getting at work, that employers need to respond. 

The are three key ways in which they can: 

1. Family Breakdown Policy: All employers should have one, setting out not only support available at work but also signposting employees to external sources of support. Separating couples crave information, and the earlier they are signposted to it, the better. 
2. Incorporating relationship breakdown into existing Wellness Programmes: Many employers offer annual presentations to employees on various wellness initiatives. Alongside talks on self-care and managing stress there should be segments on how to approach divorce well, and how to co-parent well following a separation. Many employees will not discuss the challenges they are facing at home, but would really appreciate constructive presentations which form part of a wider programme of events (ensuring they don’t need to reveal their interest in the subject matter if they’d rather not). 
3. Employee Benefits Schemes: many employers are now attracted by the idea of getting their employees started on divorce in the best and most constructive way. Joint legal advice via a One Couple One Lawyer service provider, and/or mediation through a national mediation body are particularly apt for these schemes because they are completely impartial as between the couple, have a short timescale and the One Couple One Lawyer model is fixed cost. 

The key message is that there are way for employers to support employees through divorce without becoming embroiled in an adversarial battle, and set them up on the right for an amicable divorce, and a return to a happy, productive working relationship.

Samantha Woodham, Co-Founder and Family Law Barrister – The Divorce Surgery

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