The importance of seeking support from your employer when going through a divorce

13 April 2021

The breakdown of a relationship is a challenging and stressful time, even when you and your partner are on relatively good terms.
 

There are a number of support services we recommend to help manage the strain which comes with relationship breakdown and the significant changes to your and your children’s circumstances. People often go first to friends and family and then perhaps to a lawyer, counsellor or financial advisor. Many people do not feel comfortable talking to their employer about their circumstances and in this blog, we explore how it can be important from a personal as well as family law and employment law perspectives.

Court proceedings

If you are unable to agree the children and financial arrangements arising out of your separation either directly or through using another form of dispute resolution, court proceedings may be required. Court proceedings can take a significant amount of time and energy and it is likely to be beneficial to you if your employer is made aware of the circumstances you are in. Although there are relatively limited legal obligations on your employer in these situations, many employers will recognise the benefit in supporting employees through difficult times. It can be important for them to understand when key dates are approaching and, where relevant, how the family legal advice you are being given may impact on your job.  

In a straightforward Financial Remedy case, you may have to attend two or three hearings. Prior to each hearing, you will be required to prepare a number of documents to enable the court to manage your case, such as a Form E (which is a statement setting out your financial disclosure), replies to questions arising out of your disclosure and, if your matter proceeds to a final hearing, a full statement in support of your position.  For a children case, you will be expected to provide a full statement if the court needs to make a decision about the overall arrangements for your children and children proceedings usually take place separately to financial proceedings, meaning two sets of hearings.

When it comes to the hearings themselves, while they may be ‘listed’ at a set time for, say, 30 minutes, an hour or for a number of days, in reality you will need to set aside the whole day so that you can discuss the case with your legal team and you are available when the judge calls you on.  You should be sure to agree any necessary time off from work in good time and make sure you “set aside” sufficient annual leave for these purposes.

In between the hearings, there will be a number of intensive periods during which you are in regular communication with your solicitor.  In addition to this, you will need give yourself time and space to consider your case and to make use of additional therapeutic support. It may help to ease the pressure if your employer is aware and can afford you flexibility in respect of court commitments and the work required in the lead up to them.

Tactical considerations

Your working arrangements will impact on both the financial and children arrangements and it is critical that you consider these at an early stage. 

Children arrangements

A divorce or separation is one of the most significant events you may go through in life and this in itself may cause you to re-evaluate your employment situation. Your solicitor will also want to explore your plans for the future with you, as these will be vital to the management of your case.

If you are making a proposal in respect of the arrangements for your children, whether this is part of a general child arrangements discussion or a relocation case (in which one parent seeks permission to move away with the child(ren)), it is important that the proposal is achievable. It should take into account how the children will be looked after on a day to day basis, including before and after school and during holidays.  If you have historically worked full time and relied on the other parent for more of the childcare, now may be the time to consider adapting your working pattern and discussing this with your employer. If you are asserting that you will be available for school pick up and drop offs on certain days, that you will be home by a certain time to relieve the nanny, or that you will be available for half of the school holidays, you ideally need to show the court that you can or are already doing this. This may require support and written confirmation from your employer.  

 

Financial arrangements

While children and financial arrangements are considered separately by the court, they are linked. In making proposals about your children, you may need to reduce your working hours temporarily or on a permanent basis. This can have a direct impact on your earning capacity now and in the future, which is one of the court’s considerations when assessing which financial orders should be made. Your employer’s willingness to accommodate flexible working arrangements will be relevant to the applications before the court and you may want to approach your employer early on for written confirmation.  

 

Employment options

From an employment perspective, you may consider options such as:

1. A flexible working request

The starting point is to understand your employer’s flexible working policy.Legally, an employee can request flexible working once they have been employed at least 26 weeks and only one request can be made in any 12 month period.In practice, some employers operate less restrictive, voluntary schemes.If your manager is supportive, it may be helpful to discuss your plans informally first, in order to adjust your proposal as necessary before making a formal written request.

You might request a change to (i) the hours you work, (ii) the times when you work or (iii) where you work. Your request should address, so far as possible, any obvious potential effects on the business and how these might be dealt with. It is also important to consider whether the adjustments you are requesting are for a temporary period or a permanent change to your contract, and make this clear.

If you meet the qualification criteria, your employer has an obligation to consider your written request and give you a decision within three months.It can, however, refuse your request on business grounds, or insist on a trial period.Unfortunately, there is very limited scope to challenge their decision and there is no legal requirement to offer you an appeal.

 

2. Parental leave

Parental leave can be useful to cover time off to look after your child(ren), for example during school holidays.Although it is unpaid, you are entitled to 18 weeks’ parental leave per child up to the child’s 18th birthday if you have been with your employer at least a year.Your employer cannot refuse to let you go on parental leave, but they can postpone your leave for up to six months in certain circumstances.

 

Five practical tips

  1. Inform your employer at an early stage to help them understand your circumstances and obtain the relevant policies. 
  2. Provide your employer with the key dates for hearings and the work involved as part of your case, and request these days off as soon as possible. Speak to your employer to see if it is possible to limit your work commitments in the lead up to these dates.
  3. Request time off in order to prepare during critical points in your case such as the preparation of your financial disclosure and statements and attendance at hearings.
  4. Inform your employer that you may need time off for therapeutic support/family counselling and ask HR whether your company benefits provide free access to these and any other well-being resources.  Although there is no general right to time off for medical appointments, your employer will need to consider making reasonable adjustments if your condition meets the definition of disabled within the Equality Act 2010.
  5. Discuss flexible working with your employer either as a short or long term measure, and make any formal request as soon as possible.

Further information

The family team at Kingsley Napley regularly advise clients on divorce, financial separation, and child arrangements, including relocation matters. With a clear plan, clear advice, and helping to create a clear mind, we are able to work with our clients towards a solution.

Our employment lawyers specialise in complex employment and partnership matters with high stakes. We provide support and services to employers,  executives and Partnerships & LLPs.

The family and employment teams at Kingsley Napley often work together to provide support to clients during a difficult time such as a divorce or separation. This may include providing legal advice in respect of the issues mentioned above or providing expert advice regarding one or both parties’ employment conditions. Our employment team provides valuable assistance during the financial disclosure process in reviewing employment contracts and deciphering remuneration packages which may include contractual and discretionary elements.

 

About the authors

Kirsty Churm is a Senior Associate in the Employment Department.  She advises both employers and senior employees on all aspects of employment law and employee relations issues, including contentious and non-contentious matters.

Connie Atkinson is a Partner in the family team and has experience of dealing with all aspects of private family work relating to both finances and children. Connie has expertise in cases involving: financial settlements; partnership, company and/or trust assets; international elements such as relocation and cross-border disputes; international surrogacy; arrangements for children; pre and post nuptial agreements. Connie is a qualified mediator and assists as a mediator for clients in respect of all practical and legal issues surrounding family arrangements and divorce.

 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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