Divorce Leave Scheme



View from a Family Solicitor

I’ve been consuming with great enthusiasm the recent media coverage of a voluntary scheme which sees the family friendly policies of several large employers being amended to allow employees with children and who are separating from their partner, to have extra leave and flexible working. There is also a suggestion that they will be offered help to source and access support services by their employers.

Having seen first-hand the distressing effects separation/divorce have on people, I wholeheartedly support these initiatives. It was announced in Parliament that the following employers have pledged to take part:- Tesco, Asda, PWC, Metro Bank and Unilever.

I have been helping people through separation and divorce for over 30 years, and the upheaval and uncertainty that is involved by both parents and their children is one common thread that runs through these cases. Some are more impacted than others, but all would undoubtedly benefit from having flexibility and understanding in their place of work, while they are trying to adapt to a new way of life.

Working out where each parent is going to live post separation/divorce, when the children will spend time with each parent, whether the children will need to move schools, and adjusting family budgets, can be overwhelming for the most resilient parent, never mind having to balance life changing events with the pressure of performing at work, whilst trying to carve out time to produce all the financial disclosure and information required and respond to requests from their family solicitor.

There may also be occasions where the parents are required to attend mediation sessions or court hearings, which on their own can be stressful for the participants.

A large part of my work consists of providing the support that my clients need throughout their separation/divorce process, and this is not confined to the legal aspects. There is good reason why divorce is considered one of life’s most stressful events, after losing a loved one, and along with losing a job and moving. People need to be supported during this time.

Nicola, my colleague specialising in Employment Law gives her views on this initiative below.

If you would like to discuss any of the issues raised in this article kindly contact Louise Barretto of the Russells’ Family Team to discuss in confidence.

View from an Employment Solicitor

Family breakdown can have a big impact on work life and prospects. In a survey of 200 workers conducted by the Positive Parenting Alliance to support the Divorce Leave scheme, the vast majority (90%) said their work performance was impacted when they went through a divorce, and 95% said their mental health at work suffered.

However, at present, very few employers have specific policies to cover employees going through a divorce or separation. Any requests to take time off to deal with the many issues arising from a separation/divorce would need to be taken as annual leave (or potentially as sick leave in some circumstances).

It then stands to reason, and feels like the “right thing”, for employers to recognise separation and divorce as potentially huge life events, which deserve recognition and support.

As Louise has mentioned above, certain employers have already pledged their support to the Divorce Leave Scheme. Those employers will add to their family friendly policies so that separation/divorce is given similar status to compassionate leave or serious illness. Employees will then be entitled to take “divorce leave” from work, request flexible working and access to support services if needed.

However, this process will not be without complexity. Businesses will need to decide the details. For example, will divorce leave will be paid or unpaid? How long should it last? Should extra time off be provided to divorcing parents with children? How will eligibility be determined? The downsides, then, are the administrative and financial burdens for the employer. Employers may also struggle to resource an extended period of divorce leave, particularly given the  current difficulties of recruiting and retaining staff in many industries. These difficulties will need to be balanced against the benefits for workplace culture and employee wellbeing.

The Divorce Leave Scheme is voluntary and there is no indication that the Government intends to make it mandatory. Whilst many employers may feel that the benefits outweigh the disadvantages, others may decide that a more flexible, case-by-case approach (relying on their existing family-friendly policies) is more appropriate for their organisation at present. Either way, the recent media coverage should serve to highlight to employers the importance of recognising divorce and separation as hugely significant moments in their employees’ work and personal lives.

Please contact Nicola Tager of Russells’ Employment Team to discuss further.

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Compensation For Career Sacrifice On Divorce

Often when married couples start a family there will need to be a discussion about whose career will take a backseat, especially where both parents have been working in lucrative roles. Whilst they may have supportive childcare there is usually one parent who finds they need more flexibility with their work and, with that flexibility may come a different career trajectory and consequent change in earnings.

Our family courts have, perhaps understandably, been reluctant to engage with the debate sometimes raised in subsequent divorce proceedings.

Even if there is clear evidence that one parent has forfeited a lucrative career to be the main homemaker, how should a court go about quantifying the compensation element?

This explains why there are so few reported cases dealing with compensation in this context. There has been a small trickle since the cases of Miller and McFarlane in 2006.

In  Waggott v Waggott 2018, the Court of Appeal proposed that the test for applying the compensation principle is that the court should determine, on a balance of probabilities, that the applicant’s career would have resulted in them having resources greater than those which they would be awarded under the needs or sharing principles. The court should then determine whether, and if so how, compensation should be reflected to ensure fairness to both parties. In Waggott, the wife’s claim for compensation was rejected because her retained award under the needs principle would be greater than a lost net income of no more than about £64,000 per year.

This topic was raised again in RC v JC in 2020 and in TM v KM in 2022.

In RC v JC the wife was awarded £400,000 in compensation for giving up her career as a city solicitor to raise the family.

The judge was clear that this was an exceptional case and fact specific and that the judgment should not be viewed as a ‘green light’ to raise compensation claims. The judge was of the view that in this case the wife had shown a clear path to partnership before she gave up her career.

In TM v KM the judge found that it was an exceptional case in which a discrete compensation award was appropriate in favour of the wife who had given up her career as an investment banker at a time when her earnings were at a level similar to the husband’s. The result was that she received a higher maintenance award pegged at the top end of the range, rather than an additional capital payment.

Conclusion

It remains difficult to successfully argue a separate and distinct compensation claim on behalf of a party in divorce proceedings, because any element of compensation will usually be subsumed in the needs and/or sharing principles applied.

If you would like to discuss any of the issues raised in this article kindly contact Louise Barretto of the Russells’ family team to discuss in confidence.

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How Does Domestic Abuse Manifest In The Divorce Process?

When divorcing a partner who has been abusive throughout the relationship, it is common for the abuser to try and continue his or her behaviour during the divorce and financial process, often with the aim of making finalisation of matters on divorce an exceedingly difficult process. Abuse may not necessarily mean physically abusive, but more commonly manifests as emotional, psychological and financial abuse.

Cases that I have been involved in have shown that examples of this continued abuse can be:

  • Refusal to comply with court orders,
  • Refusal to negotiate in good faith, or at all – which is required by the court,
  • Refusal to provide financial disclosure,
  • Deliberately delaying proceedings,
  • Insisting that mediation or Collaborative Law is a suitable process when it clearly is not,
  • Making efforts to exhaust their spouse’s financial resources by prolonging, delaying or being obstructive throughout the process.

Although ‘conduct’ must be significant and serious for the court to take it into account as a separate factor on divorce, the court does need to have ‘regard to all the circumstances of the case’ when exercising its wide discretion in deciding a case.

It is possible to provide examples of general obstructive and obfuscatory behaviour to the judge as a relevant ‘circumstance’ to be considered, when asserting that one spouse should receive a more generous financial award. Specific examples will need to be presented.

Because of the way the case management process works in the family courts, it can be difficult for the person on the receiving end of the abuse to make it clear to the court at the outset of their case that the other party has been abusive. This is because at the initial stages of proceedings everything is dealt with on paper, and no detailed evidence is given to the court. Many people, understandably, want the Judge in their case to be aware of the behaviour of their ex-partner from the beginning and reminded at each hearing. This can lead to frustration during the initial stages.

A solicitor with experience of dealing with these kinds of behaviours will know what to expect and be prepared for the delaying and obstructive behaviour of the other party and will move the case forward as quickly as possible to resolution, avoiding lengthy exchanges of solicitors letters. It is important that lengthy discussions where no progress is likely to be made are avoided so that the abusive spouse is not given the opportunity to further manipulate the other, by ‘stringing them along’.

If you would like to discuss any of the issues raised in this article kindly contact Louise Barretto of the Russells’ family team to discuss in confidence.

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Rupert Murdoch Heading For The Altar Again?

Many years ago, I was asked by Channel 5 News to provide a comment on the upcoming nuptials between Jerry Hall and Rupert Murdoch, and specifically on whether they were likely to enter into a prenuptial agreement prior to their marriage. I see from recent stories that shortly after his divorce from Jerry Hall was finalised, he has been seen in the company of a new lady friend and there is speculation that he may marry again, for what will be the fifth time.

Previously prenuptial agreements were the purview of the rich and famous and were rarely used by the people of more modest means.  This is no longer the case, and more and more people choose to try to regulate what might happen with their assets in the event of a divorce, prior to getting married.

Without a prenuptial agreement most assets built up during a marriage will be shared between the parties on their divorce.  The starting point is usually a 50/50 split, with certain exceptions.  If the parties have entered into a prenuptial agreement that regulates their affairs on divorce, a 50/50 split may not be appropriate.

Whilst prenuptial agreements are still not binding in England and Wales, a properly drawn up agreement will be persuasive when a Court considers the distribution of assets on divorce.

In 2010 our court handed down judgement in Radmacher v. Granatino in which were set out the safeguards that should be met when preparing a nuptial agreement.  A nuptial agreement  can either be an agreement entered into prior to marriage (pre-nup) or after marriage (post-nup).

The safeguards were said to be the following:

  1. A nuptial agreement should not be entered into too close to a marriage and it should be raised and discussed well in advance of.
  2. Both parties should receive independent legal advice from their own specialist family lawyer. It is not appropriate for them to see the same lawyer even if they agree with everything that is to be included in the nuptial agreement.
  3. The agreement should be signed at least 28 days before the marriage however, this is not always possible.
  4. It is essential that each party understands the terms of the nuptial agreement and that these have been explained clearly to them by their independent specialist family lawyer.
  5. Neither party should be pressurised into signing the agreement either by their intended spouse or other family members and there must be no evidence of duress, undue influence, fraud, misrepresentation, or mistake.
  6. Each party must disclose their financial position and schedules containing that information should be attached to the nuptial agreement.
  7. Any nuptial agreement that will prejudice the needs of any existing or future children is unlikely to be upheld.
  8. A review clause should be built into the agreement, providing for its terms to be renegotiated on a significant change in circumstance, examples of which would be the birth of a child or a party becoming long-term unemployed.
  9. The nuptial agreement must be “fair” in accordance with the principles established in our case law which means that; both parties financial needs are met, no significant hardship will be caused, potential compensation claims are addressed and property argued to be non-matrimonial is clearly defined in the agreement.

In 2014 the Law Commission published its final report on Matrimonial Property, Needs and Agreements together with the draft bill covering nuptial agreements.  The Law Commission recommended the introduction of a term known as “qualifying nuptial agreements” which was intended to limit the Court’s powers to make financial orders on divorce and the Court would be prevented from making any orders that were inconsistent with the terms of a qualifying nuptial agreement except; 1) to meet either party’s needs or 2) in the interests of a child of the family.

There are some jurisdictions in which prenuptial agreements are commonplace, especially where they are required to prevent the operation of a default community of property system.

I practised in South Africa for many years and in that jurisdiction unless a prenuptial agreement (ante-nuptial agreement as it is known over there) was entered into, the parties were deemed to be married in community of property and loss.  This has significant disadvantages especially where one party gets into financial difficulties and the other party can be held liable for their debts. It was therefore commonplace to have a prenuptial agreement prepared before marriage and it rarely caused uncomfortable or difficult conversations.

Our Family Team can provide assistance and advice on the advantages and disadvantages of a pre-nup and whether one may be suitable in your particular circumstances.

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‘Nesting’ – A Good Idea or Not?

In a decision of the Court of Appeal handed down on 3 February 2022 our courts dealt with the issue of a ‘nesting’ arrangement, which is a relatively new concept where separated parents agree that their children should remain in the former family home with each parent moving in and out depending on when it is their turn to care for the children.

In theory, this can be an excellent arrangement to ensure that the children remain settled and that they have a stable and consistent base. This might be especially important if they are taking exams or have very busy social and extra-curricular schedules.

In the case of Re A and Others (children: nesting arrangement) the father brought an appeal against a decision made by the Judge in the court below, that the ‘nesting’ arrangement should not continue.

The father was a successful businessman and the mother an artist. The parties’ standard of living prior to the breakdown of the marriage had been of a high standard, and the parties’ financial position was more than healthy.

When they separated in 2018 they agreed an interim arrangement to enable their 3 daughters who were aged 17, 15 and 9, to remain in the family home and they would spend time with each parent during the school term as a 2:2:5:5 pattern. The father wanted to retain this arrangement but the mother did not. The mother said that she had agreed to this because she was not able to afford alternative accommodation.

In 2019 the mother commenced financial remedy proceedings and after the first directions appointment the judge indicated that he found the ‘nesting’ arrangement as unsatisfactory and neither a long-term nor medium-term solution. The judge felt that there was sufficient money and resources available to enable each parent to have their own home and for the children to move between the two homes.

Matters became difficult in 2020 after an incident at the property when the police were called. Mother made applications for a child arrangements order and occupation and non-molestation orders under the Family Law Act. At the first appointment on those applications an independent social worker was engaged to provide a report to the court on what living arrangements would best promote the children’s welfare.

The financial proceedings were subsequently settled on the basis that the mother received a sum of €22 million, enabling her to purchase or rent a suitable property of her own.

In December 2020 the Children Act proceedings came before the court and in January 2021 the two older children had consulted with their own solicitor. The children stated that they wished to be kept informed about decisions but did not wish to be joined as parties.

The independent social worker completed his report on the basis that the father had said that the ‘nesting’ arrangement should continue and that he (the father) blamed the mother and her advisors for the harm that the children had suffered. The father was opposed to the children staying with the mother in her new home or even visiting her there. The mother, on the other hand, told the independent social worker that she found the father a frightening man who was determined to always get his way. She raised several examples of what she called controlling and coercive behaviour. She didn’t feel able to continue with the ‘nesting’ arrangement and she felt that shared living arrangements in two separate houses would be the best way forward.

The children’s view was that they wished the current ‘nesting’ arrangement to continue.

The independent social worker felt that the father’s conduct had shown evidence of coercive and controlling behaviour and although the children had expressed their wishes to retain the current agreement, he reached the conclusion that the children’s best interests were served by balancing their time between both parents in their separate homes.

Quoting from the independent social worker’s report, he says:

‘In my experience, nesting arrangements work well and can be of benefit to all when the parents are in accord. I also have experience of such arrangements when the parents continue to be in conflict and where the children remain exposed to the same. I am not aware of such arrangements, where parental conflict and discord remain, that remain in place or afford good outcomes for the children.’

The independent social worker felt that the current arrangements would further harm the quality of the children’s relationship with their mother. The judge expressed the view that the ‘nesting’ arrangement could have engendered a false promise to the children as to the reality of their parents’ separation. It also served to deprive the children of spending quality time with their mother in the new home that she had set up.

The judge found that the arrangement should move to a 7:7 cycle and that the children should spend time in each of their parents’ homes, feeling that it was time for the family to move on. Consequently, the father’s application was refused.

The case dealt with many different issues in detail, however it seems clear, at least on the issue of the ‘nesting’ arrangement, that whilst this can be beneficial to some children of some parents on a short-term basis, where there is a great deal of conflict between the parents, this can cause children harm.

We expect to see many more cases attempting a ‘nesting’ arrangement as the concept becomes more well-known and popular.

If any of these issues have affected you or you wish to discuss them further in some way, then please contact a member of our Family Team on telephone number 020 7439 8692.

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