Anyone working in family law could not have failed to recognise that over at least the last decade, spousal maintenance claims for wives in particular have started to reduce noticeably in duration, if not quantum, and the idea of a joint lives maintenance order is now just a hazy memory. Added to that, the concept of a nominal order was labelled a ‘symbolic irritant’ by Mostyn J in A v M [2021] EWFC 89. There is downward pressure on spousal maintenance for wives, the end of the so-called and deeply condescending ‘meal ticket for life’. But how does this stack up when considered through the lens of the menopause?
This trend is coupled with growing pressure from people such as Baroness Deech who want to see as a matter of law, rather than as a matter of the court’s discretion, very short maintenance terms where children are involved, if not an immediate clean break. She originally mooted three years’ maximum maintenance which was expanded to five years under her latest iteration of the Divorce (Financial Provision) Bill. Baroness Deech speaks eloquently about how we should not create a society of dependent wives. But has she failed to appreciate the impact of creating a society of impoverished ex-wives? Many think so.
There is growing evidence and recognition that many women are profoundly affected by menopause. This affects their ability to work which means they may need continuing spousal maintenance for longer than Deech or the current family judiciary envisage. Menopause is not a fringe problem since it affects 100% of women who reach a certain age, although what can vary is the extent of the symptoms. It may be immaterial to the self-supporting women who can manage, but what about those who cannot? Is it fair to cut them off from financial support prematurely in the quest for a clean break?
The Matrimonial Causes Act 1973 does not actually insist upon a clean break but instead asks that it is considered. Recent case law, however, tells a different story. In the important case of SS v NS [2014] EWHC 4183 (Fam), Mostyn J insisted that the court must consider termination of spousal maintenance with the transition to independence as soon as it is just and reasonable.
Mostyn J stated quite starkly that a degree of hardship is acceptable in making the transition to independence. Statute actually says that where there is undue hardship, a clean break is not desirable but maybe the ascendancy of clean break culture is evidence of a new (or perhaps very old) culture war. The worry is that the voice of women is being lost and the level of hardship some women are being asked to endure due to menopause is far from fair, when ironically fairness is the backdrop against which orders are made.
The statistics tell their own tale. Approximately 13 million women in the UK are either peri- or post-menopause, with one in four experiencing severe debilitating symptoms. There are horror stories about the worst of the symptoms, but even common symptoms such as serious anxiety and low mood, hot flushes, sleep problems, claustrophobia, brain fog, being unable to drive and becoming forgetful would make most jobs hard to endure. The average menopausal period (peri- and post-) is eight to 12 years, with the average age of onset of peri-menopause being in the mid-40s. When looked at through the prism of divorce, the average age at which women are divorced is upwards of 45, and therein lies the massive problem.
Women are divorcing at a time when menopause is starting to kick in. The expectation of the family court currently is for women to achieve financial independence even if they have not been in the workplace for many years due to family and children commitments. Menopause or biology do not appear as factors to be considered by the court, although the court can take into account age and disability more generally. There is next to no case law on menopause being considered, even though most women will experience menopause as one of the worst and most debilitating periods in their lives, hence why droves of women are leaving the workplace. The net result is that women on divorce can be left with insufficient employment income when they need it most in their menopause years; insufficient spousal support, although they may have already given up the best working years of their life to bring up the children; and insufficient funds to invest in a pension, which leads to an impoverished retirement as well.
A spouse whose career has already taken a back seat to bring up children, while the other spouse continues to develop their career, is naturally going to feel a clean break or short maintenance award does not compensate them for sacrifices already made. It is well known that women are far less resilient to financial shocks than men, with PwC recently reporting that Covid-19 is reversing the OECD’s progress towards female economic empowerment. Put simply, women carry an unequal burden of unpaid care work and the pandemic made that worse. So even though the gender pay gap may be theoretically narrowing, women are much more likely to leave jobs/reduce hours, and work part-time or in zero hour contracts. This makes the clean break culture particularly challenging even without the added burden of menopause.
While it is important to encourage autonomy – that is, not to financially shackle people together for longer than necessary – a notable price is being paid by a large group of women who struggle to make ends meet as well as provide for their basic future needs into retirement. This is why I and Family Law Partners are championing the Family Law Menopause Project, with the aim of ensuring that divorce settlements belatedly acknowledge and reflect the impact of menopause on women’s ability to work, save and plan for retirement.
Farhana Shahzady is a director at Family Law Partners and founder of the Family Law Menopause Project
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