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Are menopausal wives short-changed on divorce?

As a woman of a certain age and family lawyer at Family Law Partners, I’ve been following closely the menopause movement and in particular the brilliant work being done by some of the leading clinicians in this area including Dr Louise Newson and her colleagues at Newson Health Menopause & Wellbeing Centre.

Menopause is usually understood as a natural part of ageing somewhere between the ages of circa 45 to 55 (average age of menopause is 51) where periods stop due to lower hormone levels. Prior to that is peri menopause, which can last several years as well. The bedfellow of hormone decline are the symptoms that can follow in its wake. There is increasing and growing awareness of the extent of the problems which can include, inter alia, debilitating symptoms such as serious anxiety and low mood, sleep problems, claustrophobia, brain fog, depression, worsening migraines, heart palpitations, joint aches and profound fatigue. It is an endocrine problem which effects 100% of women who reach a certain age. It is reported that 90% of women have symptoms large or small. Even the lucky symptomless/unaffected women cannot necessarily escape the health risk legacy in the form of osteoporosis, dementia, stroke, or cardiovascular issues. It’s the hormonal shortage that keeps on giving long into post-menopause. Preventative HRT has yet to establish itself and the critics of spending money on women’s health or those who do not want to medicalise menopause or prescribe HRT because of health scares of yesteryear, continue to confuse women. Many women are paralysed and scared of what best to do at a time when they may already be paralysed and scared because of menopause. Decision fatigue is something I am very familiar with as I am sure are many Doctors. Pressures have exponentially grown for women in a world which demands women juggle multiple balls of simultaneous child raising and working (most women are the main carers of children[1] and 78% of women are now in paid work in some capacity as per 2017 figures compared to 57% in 1975[2]). This is on top of women trying to hold their marriages together when they are being buffeted by their hormones on top of everything else.

For me, the relationship/marriage ball is my main area of interest alongside the family law-financial aspects of menopause. Whilst menopause is not bad for everyone, my professional and personal observation is that menopause can be very bad for some and can shake to the core, not only some women’s health (and future health) but also their work/wealth and marriages. Arguably, good health, properly renumerated work and enduring relationships are the trinity of a fulfilled life in the modern era. They often stand or fall together.

Family Law Menopause Project

As a family lawyer, I am aware that there is no formal case law in relation to menopause and its impact on family financial cases and similarly no anecdotal cases either from family law peers I have discussed this with. It seems to be a blind spot. One could reach the simple conclusion that menopause is just not an issue but I doubt that and so I launched The Family Law Menopause Project to understand what was going on and to conduct a survey of family law practitioners.

The Family Law Menopause Project survey revealed that practitioners acknowledge and accept that there is a lack of understanding of menopause in the area of family law. It revealed that 81% of family lawyers are failing to understand or recognise the impact of menopause and perimenopause during divorce and separation. The Family Law Menopause Project survey of family law professionals and the judiciary also found that 65% of respondents agreed that women are potentially disadvantaged in terms of financial settlements by a lack of understanding within family law to recognise or think about the impact menopause and perimenopause might be having on the ability of their female clients to work full-time or even part-time.

An additional finding is that 60% of respondents felt that it would be unlikely or extremely unlikely that clients (whether as individuals or as a couple) would talk openly about the impact of menopause on their divorce with their lawyer. This may explain the lack of case law and perhaps highlights a further problem, where not only practitioners but clients themselves are failing to talk about the menopause, even when the impact on their lives might be significant.

Menopause statistics and why it matters in divorce cases

It is estimated that there are over 13 million women of menopausal age with one in four with severe symptoms. That is a very high number of women who are suffering and in turn, having their livelihoods affected in a variety of ways including job loss. The Parliamentary Women and Equalities Committee was sufficiently concerned to conduct large-scale enquiry into this because of the concern that so many women are leaving unemployment prematurely due to lack of menopause support. The feedback given to the committee from the many women who participated is compelling.

As well as individuals, a number of organisations participated in the enquiry since it is being increasingly recognised by employers that more needs to be done to safeguard menopausal women because otherwise workplaces are haemorrhaging female talent. A 2019 survey by Newson Heath Clinic found that 67% of workplaces were not offering any kind of menopause support despite 90% feeling that their symptoms were having a negative impact on work. The latest Fawcett Society Report of May 2022 which is based on a survey of 4000 women sets out that: “44% of menopausal women in employment say their ability to work has been affected by their symptoms. Despite this, 8 in 10 menopausal women say their workplace has no basic support in place for them – no support networks (79%), no absence policies (81%) and no information sharing with staff (79%). The result if that there has been an exodus of female talent and it is estimated that 1 in 10 women have left the world of work because of menopause and up to 25% are considering leaving work.

Family Law Under the Covers

When looking at menopause through the prism of divorce, the peak age at which women are divorced is often between mid-40’s to 55. This mirrors peri/menopause and appears to be more than a coincidence. More research needs to be done in this area but it is known that c.51% of British women consider that menopause adversely impacts their sex lives. As a divorce lawyer, the decline of sex and intimacy is often the canary in the coalmine. I have drafted more unreasonable behaviour divorce petitions in the last 20 years, based on a dwindling sex life and lack of communication with their spouse, than any other type of petition.

What this really means is that many menopausal women will be engaging with family practitioners as part of their divorce and separation and that lawyers need to be more attuned to their needs. But I am afraid there is a failure on the part of family lawyers in taking proper instructions or minimising the issue of menopause due to lack of knowledge or embarrassment. Clients, similarly, do not discuss these types of issues with their lawyer, workplaces or sometimes even their spouses who remain in the dark as to what is happening. Whatever the reason for silence, it is regrettable that the issue is being overlooked when the data emerging is that some women are seriously affected by menopause which directly impacts their employment and/or earning capacity and/or income needs following divorce.

Not factoring in menopause can be very problematic for menopausal women since without proper consideration or information regarding their earning capacity and/or medical evidence as to the extent of their symptoms, divorce lawyers and judges will seek to facilitate the much lauded clean break (i.e no continuing financial ties on divorce). Setting people free so that they can live financially independently after the breakdown of a marriage, is the Holy Grail of financial family work. The clean break is enshrined in law under section 25A of the Matrimonial Causes Act, and if it is not readily available right away on divorce, the law says it should be sought at the first possible opportunity, for example when the children are old enough to fend for themselves so that the woman can get back to work.

The fly in the ointment, fast morphing into the elephant in the room, is that the clean break culture regularly clashes with women’s biology. Too many women on divorce do not achieve financial independence because they are shackled by the menopause and cannot always work or achieve independence in the way that the family court had contemplated. Most women may not even realise it is happening to them because perimenopause can be a slow-grower and often confused with depression and anxiety. Many GPs do not even have menopause training and do not recognise peri/menopausal onset which means it is regularly left untreated. Dr’s can’t always even agree on the best treatment pathway and there is still division as to whether menopause should be treated at all or whether it should just be considered as a “normal” part of ageing. As a result, women find that they do not access proper or early HRT treatments and no longer hang onto their jobs bearing in mind all the pressure bearing down on them. How are these women financially surviving if they are losing their jobs or going part-time when the family court has largely or completely cut them adrift from spousal maintenance? Inevitably many women can and will face poverty if they are 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 in a pension which passports an impoverished retirement to boot.

The Gold Digger -v-Divorce Reality

There has been a steady and general trend away from awarding joint lives maintenance and only offering the shortest possible terms, if at all. This legal trend runs parallel to popular and pungent characterisation of women in recent years, especially in the popular press, who condemn the gold-digger wives for seeking the so called “meal ticket for life” in what is often described as the “divorce capital of the world”. The claims are, in actual truth, hollow and distorted if one considers the actual research. Professor Stephens Jenkins (London School of Economics) uncovered a few years ago that divorce makes men significantly richer (boosting their income by around a third) while women lose more than a fifth of their income, a loss that persists for many years contra to the hype of the “big money” cases. In a 2018 paper by Joanna Miles and Emma Hitchings entitled “Financial remedy outcomes on divorce in England and Wales: Not a “meal ticket for life”, a compelling analysis is carried out in relation to continuing economic disadvantage for women following divorce. Similarly, the Chartered Insurance Institute (CII) produced a 2017 interim report entitled ‘Risk, exposure and resilience to risk in Britain today’ . The research emphasised that divorce and separation are a significant financial risk to women left “vulnerable” by joint decisions made while they were in a long-term relationship. The average divorced woman has less than a third of the pension wealth of the average divorced man, while 10% more divorced women expect to rely on the state pension than men, 41% of whom have an occupational pension. Professor Debora Price of Manchester University has similarly looked at the pension gap and speaks cogently about how complex and highly gendered the pension system is in the UK; possibly one of the worst pension systems in the world. She points out the stark pension gap between men and women which means many women are thrown into poverty on retirement, especially if divorced. The situation for divorced, non-cohabiting women was particularly worrying with a pension pot of £19,000 in the 55-64 age group compared to a pension pot of £100,000 for men in an equivalent position. These women did not even have a safety net of a husband to financially assist on retirement.

To compound this issue, women are more likely to have more caring responsibilities towards children and elderly parents, and to suffer mental health problems which menopause can considerably worsen. Family lawyers should bear this in mind and the perception that women in England do well out of divorce is an unhelpful characterisation although there are a handful of super-wealthy wives who have hit the so called “jackpot” and made a fortune on divorce. The reality, however, for most women is that they have often created homes, raised children and supported their partners while their own careers have stood still, or progressed at a considerably slower rate. It needs to be recognised that the money these women could have earned (lost income) – and consequently their potential to save for their own future long-term needs, including retirement – has been significantly compromised along with their confidence and ability to rehabilitate in their menopausal years.

The continuing aim of the Family law Menopause Project is to raise awareness of these issues and to make sure family lawyers work hard not to short-change their menopausal clients as the medical profession still tries to figure out whether and how to best treat menopause symptoms and its ensuing health risks .

Farhana Shahzady is Director, Solicitor, Collaborative Lawyer and Mediator at Family Law Partners and founder of The Family Law Menopause Project.

[1] AIG Life research 2019 – 74% of women are the main carer for children

[2] Institute of Fiscal Studies: The rise and rise of women’s employment in the UK – Barra Roantree and Kartik Vira