An article by Rebecca Massam, Warners Solicitors.

As the drive towards greater societal enlightenment about the menopause gains more traction, the discussion around the challenges that half the population will face at some point in their lives has become more apparent in 2022. With prime-time TV stars like Davina McCall championing the education of the nation and celebs such as Michelle Obama, Emma Thompson, and Oprah opening up publicly about the challenges they have faced, Rebecca Massam, of Warners’ family team looks at whether the family courts are also joining the movement of acknowledgement and acceptance of menopausal issues.

A quick google of “Divorce and Menopause” will garner a multitude of articles asking, “Does menopause cause divorce?” but there is very little information out there about how women who are dealing with menopausal symptoms might be considered by the courts whilst looking at how a families’ finances might be separated.

In the UK, 13 million women are either peri- or post-menopausal, with one in four women reporting severe debilitating symptoms. The average menopausal period is 8-12 years, and the average onset of perimenopause is mid-forties. Looking at the statistics of divorce, the average age of a divorcing woman is 44, with most typically divorcing between the ages of 45 and 55. It’s impossible to deny that for some women then, timing is a huge issue, and you can see why the issue of causality might be asked so often.

This situation is the same for Family Law Practitioners. There is a stark absence of case law on the effects of menopause on separating families and how lawyers should be approaching the issue in their financial remedy cases. Arguably it will have the most visible impact on a woman’s ability to produce an income during this time, which is a crucial element in most cases.

And it’s a difficult one to balance. Arguments have been made by (female members of) the judiciary that nothing is “more damaging to the prospects of women at work than the menopause pretext” and that “most women do not suffer from the menopause to the extent that they have to stop work”. I suspect this stems from a long history of labelling women as the weaker sex because of reference to their biological makeup. There is then a natural tendency of women, who may have experienced a lifetime of casual sexism and glass ceilings, to do all they can to protect the steps towards equality that have been so hard fought for. Accepting that men and women are, in fact, different could be a risky business. But should we not talk about pregnancy then, either?

Some of the symptoms of menopause can be manageable for some women, and many will report symptoms not having a lasting impact on their lives. For others, it is debilitating, both physically and psychologically: brain fog, hot flashes, mood changes, depression, anxiety, sleep problems and claustrophobia can all impact a woman’s ability to function at work and at home.

So, what happens when a woman who is going through the menopause, is getting divorced and is suddenly faced with the prospect of having to provide an income on her own that will meet her own needs and those of her (often by now teenage) children?

The Matrimonial Causes Act 1973 sets out what factors should be taken into account in financial remedy cases. It states that a clean break (where both parties are able to live financially independently of each other) should be considered when it is just and reasonable to do so. But over the last ten years, there has been an increase in the general expectation that women could and should achieve financial independence, even if they have not been in the workplace for many years. Recent case law has considered it right and proper that women should work and earn what they can to meet their own needs, and there is growing pressure from the judiciary to see only short term maintenance, and only where there are young children, enshrined in law.

Menopause, or biology, does not seem to be a factor that the court must specifically consider, although the court must consider all the circumstances of the case. But many women may not know or understand why they feel the way they do, and in a society where even GPs lack the training to offer any tailored advice or treatment, how can the courts fare any better?

Fortunately, more is being done to raise the concerns about the far-reaching effects of menopause, and some practitioners have launched the Family Law Menopause Project to attempt to understand how menopause in family cases is being treated and what protections are needed. It is, after all, something that affects half the population at some point in their lives and whilst the effects will be different for every woman, further work is required to determine what the consequences of ignoring these effects will be. For instance, a female judge in an already established and well-paid career will fair very differently to a woman who has remained at home to raise her family and is now expected to start again. Throw in the effects of menopause and how varying the symptoms can be from woman to woman, and herein lies the problem.

The key for women who are peri- or menopausal and who are going through a divorce is to feel comfortable enough to raise this as an issue with their legal team if they feel that their symptoms are such that they will have an impact. The family team at Warners are very good at listening to and identifying safeguarding and other sensitive and important issues whether you are talking to a male or female solicitor, and the strictest client confidentiality applies.

Warners can talk you through different options that you may feel comfortable with to reach a resolution to your case, such as collaboration or arbitration, where the effects of the menopause might be more readily considered by your former spouse, and that can also reduce the anxiety of a court process. We will give you realistic and practical advice to support you to feel confident in your case. We can also put you in touch with other local professionals who can help you and your legal case in a non-legal way, such as counsellors or menopause coaches and divorce coaches.

So, the answer then to the question posed at the start of this article: Are the family law courts also joining the movement of acknowledgement and acceptance of menopausal issues? A resounding “Not yet”. But with practitioners being alive to the issue, it is only a matter of time. For now, for both women and men who feel that menopause may have an impact on their divorce, the starting point has to be an open and frank discussion.