Menopause and Divorce

The menopause conversation is gathering moment, increasing awareness, and hopefully improving the lives of women throughout the country. More recently, Farhana Shahzady, a director at Family Law Partners, raised the issue in terms of divorce – specifically the financial orders made on divorce including spousal maintenance orders. As a result, she set up the Family Law Menopause Project to help family lawyers better support their clients who are affected by menopause, particularly where they may not be diagnosed. Ms Shahzady’s article in the Law Gazette (available here) has sparked debate.

For some time, when considering the financial matters on divorce, the Courts have been moving away from generous maintenance orders lasting for the parties’ joint lives. More frequently, the Courts are persuaded that the homemaker, most commonly the wife, should be returning to work and maximising her earning capacity now that the marriage is at an end.

The Divorce (Financial Provision) Bill was reintroduced in the House of Lords last July and awaits a second reading. The Bill, sponsored by Baroness Deech, would limit spousal maintenance to five years unless the spouse would suffer serious financial hardship.

The Family Law Menopause Project seeks to highlight the potential dangers with this approach. A large proportion of those going through marital breakdown are at the age when the menopausal process is starting or will be soon. Their earning capacity could be impacted dramatically by the symptoms of menopause, whether or not they are suffering from the same at the time of their divorce. In fact, The Menopause and the Workplace report by the Fawcett Society and Channel 4, which polled 4,000 women aged 45-55, found that 10 per cent had left their job because of symptoms of the menopause.

Baroness Deech’s reaction to this discussion has been dismissive:

“It is hard to think of anything more damaging to the prospects of women at work than the menopause pretext put forward… It reminds one of the beliefs that were advanced to prevent women succeeding in any career in the 19th century and earlier – they were too fragile, too emotional, their voices too weak, their smaller brains addled by reproduction.

“Most women do not suffer from the menopause to the extent that they have to stop work. Women judges seem to cope with it just fine! The provisions of my bill to reform financial provision were misstated. It would put far greater emphasis on child maintenance up to the age of 21, and bring English law into line with the law of Scotland and most western countries, reducing litigation and exorbitant legal costs.”

Women who have stopped work to provide care for their children and run the family home are considered to have contributed equally to the matrimonial assets as the working husband. They can expect to receive 50% of the assets, but this does not enable them to earn an income (providing a lifestyle and enabling them to build capital) at the level that they would have had they continued to build their career whilst their husband supported the family. Add to that disadvantage the potential impact of the menopause, and there is a risk that a lack of flexibility in the Court’s jurisdiction to award longer-term maintenance orders will leave an ex-wife in a position of financial need.

That having been said, the Court cannot be asked to ‘crystal ball gaze’. If there is no evidence that a party within the litigation is suffering from the symptoms of the menopause, is the concern any different to the risk of a serious illness developing unexpectedly?

The Family Law Menopause Project certainly raises interesting and important points for discussion.

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