Menopause and divorce – an unequal struggle for older women

Claire Porter is a family lawyer at SAS Daniels LLP. Here, she discusses how the menopause can impact divorce and spousal maintenance orders.

menopause symptoms and divorce
Menopause and divorce – older women face significant challenges at the break up of a marriage.

Menopause has become a trending topic in the UK, with many high-profile celebrities sharing their own experiences in an effort to raise awareness of the struggle many women face.

Davina McCall’s documentary Sex, Myths and the Menopause went live on the BBC in May, further shining the spotlight on how menopause can affect the mind as well as the body – with memory loss and brain fog decimating women at work.

This, combined with the current shortage of HRT in the UK, has made menopause a contentious subject as many continue to battle to find the resources and help they need.

And it’s not just work where menopause symptoms can have a detrimental effect.

Menopause and divorce

Peri and post menopause typically spans eight to 12 years, with the average woman being in her mid-40s. As the average age for women divorcing is 45*, it’s important for legal teams to ask their female clients who are pursuing a divorce the right questions, to ensure they are fully prepared and well supported before proceedings begin.

Menopausal symptoms can be debilitating and may even have a detrimental impact on the careers of many women.  Unfortunately, this does not fit well with the court’s approach of encouraging divorced couples to strive towards financial independence, even when a woman has been out of the workplace for some time due to childcare or family commitments during marriage. 

Maintenance and joint lives orders

When it comes to divorce, there are a variety of orders the court can make in relation to income, capital and pensions which are set out in the Matrimonial Causes Act 1973

For example, when considering a spousal maintenance claim, the court can make a spousal maintenance order for a number of years with an extendable term. This means that the recipient can apply to extend that duration prior to its expiry, depending on the parties’ circumstances.

Alternatively, the court can also make a non-extendable term, meaning, if a spouse was ordered to pay maintenance for a period of three years, the court could place a bar which stops the recipient spouse from applying to extend that period.

The court can also make a joint lives maintenance order whereby the order terminates on the death of a spouse, further order of the court, or the recipients re-marriage.

However, there has been an increasing trend over the last decade whereby spousal maintenance claims for wives have reduced noticeably in duration and consequently, the idea of a joint lives’ order has mostly become a fantasy.

How much maintenance is paid?

When looking at the amount of maintenance payable, there is no set formula.

The court will look at the individual’s budget and consider if any shortfall is a fair proportion of the other spouse’s available income, as well as reviewing the net effect going into each household. 

In every case however, the court must consider a termination of spousal maintenance so that a spouse can become independent as soon as it is just and reasonable.  A term maintenance order should be considered unless a wife would be unable to adjust without undue hardship to the ending of payments. 

The Financial Provision Bill

There is increasing pressure from Baroness Deech, a member of the House of Lords, who wants to see as law (rather than a judge’s discretion) a clean break, or instead, very short maintenance terms. 

Under her Financial Provision Bill, she originally proposed three years max maintenance, but now advises to limit spousal maintenance to five years – unless the spouse would suffer serious financial hardship without. The bill is currently awaiting a second reading before it faces the House of Commons.

It’s a case-by-case basis

When you’re seeking a divorce, your case will be considered by its own merit.

If your menopausal symptoms are debilitating, this could well impact on the amount of maintenance you are entitled to. Always be honest with your lawyer so that they are armed with all the facts as it may well be possible to obtain a longer-term maintenance order.

The importance of transparency

Women who are about to embark on a divorce should be encouraged to have an open and honest conversation with their legal team, who should ensure that these women feel as supported as they possibly could be (i.e., via their GP, counselling, family and friends).

They should also explore whether their client is of the view that the marriage has irretrievably broken down, or if joint counselling could help the couple resolve issues in the marriage that may be a result of menopausal symptoms. Divorce is life-changing so women have to be 100% sure that they no longer want to remain married, which they can then decide with the support offered to them.

As well as approaching the situation with transparency about their condition, women in these positions should look for a legal representative who is understanding of their symptoms, empathetic to their needs and not afraid to have difficult conversations and break the “taboo” around menopause.

SAS Daniels has a team of family lawyers who understand that going through the menopause can impact all areas of your life.  If you’re going through a divorce, hormonal changes may impact your ability to work. Our team of experts can support you throughout the divorce process and ensure you know your rights when it comes to spousal maintenance.

*Divorces in England and Wales, Office for National Statistics, ons.gov.uk, 2018

If you found Menopause and divorce – an unequal struggle for older women helpful, you’ll find more discussion on the symptoms of menopause on our Health channel.

Tags: , , Last modified: June 16, 2022

Written by 12:17 pm Relationships and dating, Women's Health

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