There has been a huge increase in awareness, treatment and support of the symptoms of Menopause in the last couple of years. A study by the The British Menopause Society states that; “The Menopause transition can have a significant impact on many women, with more than 75% experiencing menopausal symptoms and a quarter describing symptoms as severe. A third experience long-term symptoms which may last as much as seven years or more”. As such, the effects of the Menopause may mean that many women on divorce cannot work because of symptoms and will find it difficult to adjust financially after divorce.
With menopause usually happening between the ages of 45 and 55 and the average age of women getting a divorce is just over 45, there is no coincide that these two overlap. It seems a big reason for divorce could be no ones fault.
However, in the last decade there has been a decline in the amount of spousal maintenance claims for wives in particular. As a result, many women are finding that they are unable to financially survive due to the lack of support from their ex-partner – how can this be considered fair?
Topics to be answered in this article
How is the menopause considered in a divorce settlement?
It will come as no surprise that there is a lot of ignorance around the Menopause and generally speaking, it is not being routinely considered by practitioners across the legal field and is insufficiently factored into financial remedy cases.
Many women are expected to be able to work for longer and may be expected to work full time hours which may be very hard if they are one of the 1 in 4 women who suffer severe symptoms.
However, given the impact that the Menopause symptoms can have on a woman, many women will find that they can no longer hang onto their jobs. A recent headline suggested 1 million women leave employment due to the lack of Menopause support. Therefore, at a time when spousal maintenance orders are in decline, how can the court achieve fairness?
How is a financial divorce settlement reached?
The general expectation of the financial remedy courts are for both parties to achieve financial independence even if they have not been in the workplace for many years. There has been a shift in the case law whereby spousal maintenance claims for, most commonly, the wife, have reduced. This is because there is a move towards both parties achieving a ‘clean break’.
However, The Matrimonial Causes Act 1973 does not insist on a ‘clean break’. This will only be considered when it is ‘just and reasonable’ to do so and the parties can meet their respective needs from the resources in the marriage. In the case of SS v NS [2014] Mostyn J stated that a degree of hardship is acceptable in making the transition to financial autonomy. Therefore there is a worry that the woman’s voice is being lost and the level of hardship they are being asked to experience is what could be considered in some cases, unfair.
The downward trend in spousal maintenance is also being supported by the judiciary and in particular, Baroness Deech, who is a woman herself, and who would like 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. However, in many cases women will require ongoing financial support to ensure they do not experience financial hardship as they approach retirement.
In contrast, for some cases, this shift in the case law may be seen as a positive step. Not only does it mean that cases have slightly more predictable outcomes, but the previously known ‘meal ticket for life’ is no more and the paying party can limit their financial support to their ex-wife or ex-husband completely if a clean break is achievable and it is just and reasonable to do so.
But where does this leave the cases where one party is unable to be financially independent? In short, this would be looked at on a case by case basis and will depend on the financial resources available from the marriage.
What can be done to ensure a fair divorce settlement for a menopausal woman?
As the courts and legal system continue to neglect the impact of the Menopause on a woman within divorce proceedings, there is no specific case law dealing with the impact of the Menopause and how this might impact a financial settlement. It could be suggested that, as a woman may be unable to work due to her menopausal symptoms, that, allowances should be given for this. However, this is not something that is given particular attention in the UK courts.
Whilst there is no case law dealing with these issues specifically, the way in which your Family Lawyer may approach your case from a practical as well as legal perspective may change. For example, this may involve settling disputes in private, rather than in court, because this is likely to be a kinder and more dignified way of resolving matters of a personal nature.
The Family Law Menopause Project was launched to raise more awareness amongst the family law community of the impact of the Menopause so that Family Lawyers can ensure their advice is properly informed and client focussed but there is still some way to go.
How can Goughs help?
We have a dedicated team of experienced professionals ready to fight your corner and ensure you receive a fair financial settlement. We will be sensitive to your situation and consider all the relevant factors in your case including those mentioned in the article above and will resolve your case in a way which is unique and tailored to your situation. We have a team of experienced Family Lawyers that will be able to help you with your needs.
If any of the issues arising from this article impact you, please contact one of our team on 01249 444499.
