Earlier this year, with the help of Family Law Partners, I launched the Family Law Menopause Project. It had the straightforward aim of encouraging family lawyers to consider the impact of menopause on clients.

I was prepared for curiosity and healthy scepticism about the Project. However, I was unprepared for some of the prominent female criticism it elicited. In particular, I have in mind Baroness Deech, who wrote a letter to the Law Society Gazette on 11 March 2022 in response to my article of a week earlier:

‘It is hard to think of anything more damaging to the prospects of women at work than the menopause pretext put forward by Farhana Shahzady (Divorce settlements and the menopause, Gazette, 4 March).

It reminds me of the beliefs that were advanced to prevent women succeeding in any career in the 19th century and earlier – they were too fragile, too emotional, their voices too weak, their smaller brains addled by reproduction.

Most women do not suffer from menopause to the extent that they have to stop work. Women judges seem to cope with it just fine! The provisions of my bill to reform financial provision were misstated. It would put a far greater emphasis on child maintenance up to the age of 21, and bring English law into line with the law of Scotland and most western countries, reducing litigation and exorbitant legal costs. It would accord with no-fault divorce, soon to be introduced.’

The last thing I wanted to do as a lawyer interested in safeguarding and championing rights was to turn the clock back. But Baroness Deech raises an interesting point: Does factoring in menopause and recognising that women are biologically different, in financial remedy proceedings, set women back? Or in truth, are women set back by ignoring the biological differences between them and men and failing to challenge the clamour for a clean break?

The menopause problem

I hope I am right in assuming that most informed people recognise the serious impact of menopause on some women. But menopause concealment, which is the desire not to be outed and not to openly discuss the menopause, remains an issue. Menopause denial or relegating it to a discussion about an occasional hot flush is trite. There is increasing and growing awareness of the extent of the problem 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 affects 100% of women who reach a certain age. One of the leading UK experts in the field, Dr Louise Newson, speaks forcefully about the symptoms and health impact1 and the number of women affected by menopause. It is estimated that there are over 13 million women of menopausal age, with one in four experiencing 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 a large-scale enquiry into this because of the concern that nearly 1 million 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% of women feeling that their symptoms were having a negative impact on work. The latest Fawcett Society Report of May 2022,2 which is based on a survey of 4,000 women, sets out that:3

‘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%).’

Why should it matter to family lawyers?

Menopausal symptoms can last for around 7 years but some women who have had symptoms for decades. Perimenopausal symptoms can last for several years as well. The hormone deficiency related to the menopause ‘lasts for ever’. The average age of the onset of perimenopause is the mid-40s and the average age of menopause itself is at age 51. Onset can vary according to race and ethnicity. When looked at through the prism of divorce, the peak age at which women are divorced is often somewhere between the ages of 45 and 55, therefore invariably coinciding with menopause.

What this means is that many menopausal women will need to engage with family practitioners as part of the divorce and separation. However, I cannot find a single reported or anecdotal case where menopause has been factored in. This is incomprehensible. Is this a failure on the part of family lawyers in taking proper instructions or minimising the issue due to lack of knowledge or embarrassment? Whatever the reason it is regrettable, 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.

History of maintenance

It is worth reflecting that when the Matrimonial Causes Act 1973 (MCA 1973) came into existence, it was considered radical and the idea that a wife could get a transfer of property order, lump sum and maintenance was called a ‘meal ticket for life’ even back then. Hitherto, women in marriage had little control over their property and, even on divorce, were generally restricted by what was called a ‘compassionate allowance’ to prevent destitution. Interestingly, the MCA 1973 did not originally provide for a clean break between the parties unless both parties consented, and the clean break under section 25A was only later introduced under the Matrimonial and Family Proceedings Act 1984, which added a new section 25A. Only then was a formal duty of the court to consider clean break between the parties born.4

Clean break – the Holy Grail?

While for some there may have been a delay in introducing a formal clean break,5 there is no doubt that clean breaks are flourishing now as never before, as more and more women have entered the workplace and most often juggle work with raising a family. There are very few joint lives spousal maintenance orders and most financial orders now have an immediate clean break or a deferred clean break after a short term of maintenance. A term order can be made for such term as is sufficient to enable the payee spouse ‘to adjust without undue hardship to the termination of his or her financial dependence on the other party’.6 What has become apparent while considering the issue of menopause and maintenance is that there is an increasingly hawkish clean break culture which is demanding women adjust at a time in their life when fairness surely requires that, amongst other things, their biology should be considered as part of one of the circumstances of the case.

In cases such as SS v NS [2014] EWHC 4183 (Fam), Mostyn J insists not only that the court must consider termination of spousal maintenance with the transition to independence as soon as it is just and reasonable, but also that a degree of (not undue) hardship is acceptable in making the transition to independence. This is arguably a stern stance since how fair is it knowingly to impose hardship or even talk in terms of tolerating hardship, when faced with women in menopause who may already be suffering? On joint lives orders, Mostyn J states: ‘if the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former’ ([44]). The case of Fleming v Fleming [2003] EWCA Civ 1841 had, some years earlier, acknowledged the principle that an increase in term could be exceptionally justified, but that now seems to be eclipsed in favour of the demand for self-sufficiency.

Mind the gender gap – Waggott

Similarly, when it came to Waggott v Waggott [2018] EWCA Civ 727, [2018] 2 FLR 406, which addressed joint lives orders and the sharing of post-separation income, there is legitimate concern at how it is also prejudicial to women, particularly of a certain age who have given up their careers for family which may have otherwise flourished. This was a case where the parties divorced after 21 years of marriage and despite the husband and wife starting off at the same level in their careers in accountancy, they made a joint decision during their marriage that the wife would sacrifice her career path for the family, as indeed many women do.

Unfortunately, the wife’s claim for a share in the fruits of the post-separation earnings was rejected by the court. The Court of Appeal, moreover, replaced a joint lives order with a term order of 3 years with a bar under MCA 1973, s 28(1A), on the basis that the wife’s relationship-generated needs could be met from her surplus/free capital; and the sharing principle did not apply to earning capacity, despite the wife’s claim that she had helped build the husband’s earnings. Many believe the Court of Appeal’s approach to be discriminatory because, surely, there was relationship-generated advantage for the husband, who could continue to develop his career and earnings even if Mrs Waggott could not substantiate a claim for relationship-generated disadvantage and compensation.7 The husband accepted that Mrs Waggott could only now achieve income of around £30,000 p.a. compared to his £3m.

In Waggott, the court placed great emphasis on MCA 1973, s 25A. The case was considered a triumph for the clean break, finally ending the ‘meal ticket for life’. But many in practice did not rejoice because, up and down the country, it remains a genuinely challenging part of the job explaining to wives that although they may have not worked for years due to children and although their hormonal health has deteriorated, they can expect a clean break. In real life, most women do not have deep pockets like Mrs Waggott and do not have free capital on which to live. Instead, as Lord Hope stated in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [118]: ‘The career break which results from concentrating on motherhood and the family in the middle years of their life comes at a price which in most cases is irrecoverable’. If you add symptomatic menopause to the mix, the price becomes very high indeed.

The importance of a discretionary system

Despite the prevailing clean break culture, we still have a discretionary legal framework which can be mobilised to help women in menopause. The case of C v C [1997] 2 FLR 26 provides welcome relief for some women:

‘(6) The question is, can she [the wife] adjust not should she adjust … it is highly material to consider any difficulties the payee may have entering or re-entering the labour market, resuming a fractured career and making up any lost ground … Facts supported by evidence must therefore justify a reasonable expectation that the payee can and will become self-sufficient. Gazing into the crystal ball does not give rise to such a reasonable expectation. Hope, with or without pious exhortations, to end dependency is not enough’

In the case of Flavell v Flavell [1997] 1 FLR 353, the Court of Appeal also offered support and emphasised that clean break amendments to the MCA 1973 proposed no more than an aspiration that the parties should be self-sufficient and the power to determine dependency should be exercised only if the adjustment could be made without undue hardship. Ward LJ underlined the need for an ‘evidence-based’ approach in this case. The court went on to find that it was not usually appropriate to terminate periodical payments for a wife in her mid-50s unless she had substantial capital or a significant earning capacity. The court found that the risk of ill-health and loss of employment were real factors to be taken into account and carefully considered.

Most do, however, acknowledge that the Flavell wives – while not quite extinct – are fewer and farther between.

Menopause as disability?

I have seen many Forms E where wives have sought to explain at section 1.11 how they are suffering stress and depression and chronic health problems. We should not assume it is the divorce alone making the wife ill. I think we need to take it seriously when the wife tells us she is concerned that she may have to reduce her hours at work due to health difficulties or that she feels she may have to give up completely as she navigates not only a difficult divorce, but also health issues which may or may not have been diagnosed. It is well known that menopause is not often diagnosed in a timely way and most GPs do not have medical training in relation to menopause. This is the point where family lawyers should be considering obtaining a medical expert report and/or urging the client to seek appropriate medical expertise. There are some specialist menopause clinics8 and some outstanding menopause practitioners, such as Dr Newson and Dr Shahzadi Harper, but waiting lists can be a challenge for women wanting to see a specialist, and the private specialists are often the preserve of more wealthy clients who have the resources to pay.

Many women are also wary of describing menopause as a disability and prefer to see it as a life stage similar to adolescence or pregnancy. But, for some, the symptoms are disabling which means it is highly likely that menopause will be viewed as a disability (MCA 1973, s 25(2)(e)). Employment lawyers are similarly treating menopause as a disability under the Equality Act 2010. As with every disability case, the medical evidence will have to be considered very carefully and the case put together bearing in mind diagnosis, prognosis and the availability of an effective treatment pathway to help ameliorate symptoms. Take-up of hormone replacement therapy (HRT) – despite recent headlines about shortages – is quite modest9 and availability is also patchy depending on what part of the country you live in. For some, HRT is not an option due to other health issues.

There is still the totemic fear of cancer for many women and years of confusing public health scares and messages about HRT. There needs to be better education and research to help put women’s minds at rest. The only realistic thing that family practitioners can do is to take instructions, triage and signpost clients as necessary. We should put together our cases based on the best science and treatments available, including factoring in the cost of these treatments and consultations. While there is insufficient disability case law, the recent case of ND v GD [2021] EWFC 53 is useful authority on the importance of expert evidence where the wife has special heath needs (in that case, Alzheimer’s) and was diagnosed with a disability after separation. The case is also very useful for establishing the principle that needs do not have to be relationship-generated. The husband sought to argue that the wife’s health was not causally linked to the marriage, especially since she was diagnosed after separation. In Peel J’s judgment ([50]), he stated: ‘this approach cannot be right … The statute does not limit consideration of needs in this way’.10

Is the future Deech?

All clients want clarity regarding outcome when seeking legal advice. It is true to say the current discretionary system does not deliver this very well. Baroness Deech rejects the concept of judge-made law, i.e. a discretionary system that (in her view) does not offer certainty to parties regarding outcome and helps to drive up legal cost. She points to the big money cases, but those cases are not representative of the day-to-day cases run by most lawyers.

Baroness Deech advocates dismantling and dispensing with the discretionary system and adopting a formulaic approach as per her latest iteration of the Divorce (Financial Provision) Bill. She speaks about how we should not create a society of dependent wives but does not consider the problem of poverty for many ex-wives, which is exacerbated by the hard-line clean break culture she promotes.

There is growing evidence about how women do not do very well on divorce or indeed more generally when it comes to, for example: pay, promotions, job security, health, pension savings on retirement. A report produced by the Chartered Insurance Institute (CII) titled ‘Risk, exposure and resilience to risk in Britain today’ concluded 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.11 Another report titled ‘Depreciating assets: the female experience of health in the UK’12 states:

‘Unlike men, women live with a constantly changing physiological and physical self during most of their reproductive and economically active life due to menstruation, miscarriage, pregnancy, and the menopause. Not only do they have a higher incidence of some of the more significant illnesses, but they also have the challenges of contraceptive and reproductive health. Simultaneously they carry a higher burden of domestic work and caring responsibility.’

This seems to echo Fiona Shackleton’s comments that ‘Women are like leaseholds, we’re depreciating assets, and men are like freeholds and appreciate’.13 Yet Baroness Shackleton supports the Deech formula that not only severely limits maintenance, but also limits the court’s discretionary powers to make orders in relation to non-matrimonial property (i.e. property or assets or pension that parties bring to a marriage or which they inherit or receive by way of a gift during it). This means orders can only relate to matrimonial property, which is arguably another blow to women who are usually the financially weaker party and need to invade non-matrimonial property to help meet reasonable needs.

Baroness Deech states that ‘Current maintenance laws encourage the message that “getting married to a well-off man is an alternative career to the one in the workforce”’.14 This is one of the most reductive views of women I have come across. A marriage with children followed by subsequent divorce is a financial shock for many, many women with or without menopause. Maybe the answer to Baroness Deech is that women should avoid having children at all, which will give them the best chance of a thriving and uninterrupted career. That should circumvent the need for maintenance if the marriage fails. Arguably, childbirth in this country, along with exorbitant childcare costs, is what most damages women’s ability to work. Menopause is just another reminder of the cost women end up paying for their fertility.