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Divorce, Productivity and the Art of Feeling Better

Divorce is a reality which affects everyone to a greater or lesser extent: 42% of marriages end in divorce in the UK, and the annual cost to the UK taxpayer of family breakdown is put at an eye-watering £50 billion. But many employers do not engage with it as an issue relevant to them, or, more often, simply have no idea what they can do to help without intruding on private grief.

OK, so forgive the corny title, but as we stagger through lockdown 3 the pandemic brings into sharp focus yet another serious issue: to what extent should employers be helping staff through the issues surrounding family breakdown?

Divorce is a reality which affects everyone to a greater or lesser extent: 42% of marriages end in divorce in the UK, and the annual cost to the UK taxpayer of family breakdown is put at an eye-watering £50 billion. But many employers do not engage with it as an issue relevant to them, or, more often, simply have no idea what they can do to help without intruding on private grief.

We have found that the support network around a couple is of huge importance in framing a positive approach to divorce. Employers can play a vital supporting role.  And what’s more, it is absolutely in their interest to do so.

What’s the problem?
If you had a blank sheet of paper, it would be hard to devise a worse process for navigating the legal side of a separation than our current, adversarial system. It pits couples against each other, breeds mistrust and breaks down communication.

That is why the Family Court itself is urging couples to stay away from Court, and treat it as a place of last resort, not as a default starting point: at the end of the day, all the lawyers will 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.

The toll Court proceedings take on the families involved is most graphically demonstrated by 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.

This is all, sadly, unsurprising. Divorce, although commonplace, still attracts huge societal stigma- it is associated with failure, stress, unhappiness and financial pressures. No one goes into a divorce thinking it is going to be easy to navigate. This fear of the process is compounded by an adversarial, expensive and lengthy legal system, drowning in jargon. And at the same time many couples are facing the fracturing of their support networks – losing ties to friends and extended family members.

This has a huge impact on the ability of those adults to function, not only at home but inevitably also at work.

And what about the impact on children of the family? Again the research is stark. In January 2019, a report for the Nuffield Family Justice Observatory 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. 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 that the escalating numbers of children caught up in the family justice system constituted a public health emergency, 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…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, the most senior family judge in England & Wales, has been urging the legal profession as a whole to find a better way for separating couples to resolve disagreements over the division of their finances or arrangements for their children other than through the court process. A blizzard of initiatives has followed, calling for radical and systematic change of family law dispute resolution.

It is now absolutely clear that judges themselves do not consider that the Family Court is the right place to resolve issues.

So what can be done instead?  Couples should, wherever possible, work together.  Try to see divorce for what it is: the end of one chapter and the beginning of another.  A couple has not ‘failed’ simply because a cohabiting relationship has ended, nor does its ending invalidate everything positive that came before.  It is vital to recognise this.

But why is any of this relevant to employers?
Last year, a You Gov poll for The Times with 500 high earners (earning £100,000pa to multi million pound packages) found that 69% of those interviewed admitted ‘significant’ problems in their relationships. 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 Resolution (an organisation promoting good practice by solicitors specialising in family law) found that only 10% of employees think their employers do enough to support them during family breakdown.

But the argument that employers must ‘do more’ makes sense from a productivity perspective too. The fact is that divorce affects key staff.  According to the ONS’ most recent data, the average age for a divorcing man is 47, and for a woman 45. 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.

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 but not to the other.

But it is clear from the mental health studies, and employees’ own attitudes to how little support they are getting at work, that forward-thinking employers will want 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.

Harry Gates, Co-founder, Barrister – The Divorce Surgery

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