Reading Farhana Shahzady on ‘Menopause – turning the clock back for women’ ([2022] 2 FRJ 148) caused me to be even more fearful than usual about the progress of women’s equality, freedom, respect and opportunity in the workplace and in education. After a lifetime of fighting for more freedom for women, we now see so many rights being watered down or taken away – abortion, women’s spaces, and now the risk of the menopause as an excuse for not hiring older women. Some men feel free to deny women the distinctive nature of their bodies when it suits them in transgender disputes – and then emphasise that distinctive nature against women in the workplace, where it will also suit them.

Significance of menopause to financial remedies on divorce

Shahzady paints a gloomy picture of the menopause. It is not one that has previously been brought to wide attention as anything other than a personal matter, and not one that appears to have impeded women working in the law, in education, in medicine and in most very demanding careers. Some women have blamed discrimination, lack of childcare facilities or the workplace culture for not reaching the top, when that is the case, but not their physical destiny.

There is nothing unique about a form of bodily frailty affecting working lives. It is reported that there are about 100,000 long COVID sufferers who are finding it hard to work; there are millions on NHS waiting lists. Over 50,000 men are diagnosed with prostate cancer every year and subjected to debilitating treatment. In none of those cases are the financial deficits placed on their spouses. It is quite right that it is now recommended that every workplace design a menopause support policy1 because the Equality Act 2010 requires adjustments to be made for disability, sex and age. It is true that the government has been backward in protecting disabled people and others as required in that Act and some of the relevant sections have not yet even been brought into force, as uncovered in the report that I chaired.2 In this context section 14 of the Equality Act 2010, dealing with combinations of protected characteristics, could beneficially be brought into force. The point that needs to be made is that long COVID, disability and other physical conditions of men and women are conditions where the workplace, if any, should make the necessary adjustments. We do not argue that because men are prone to prostate cancer that this should place an extra financial support duty on their wives; nor that heart disease, which affects many more middle-aged men than women, should be taken into account in calculating a split of assets on divorce.3 The menopause is no different. It is not the husband’s fault that his ex-wife’s menopause might affect her badly and it is no more his responsibility than it would be hers to support him if he gets prostate cancer. It is one thing to compensate women for perceived discrimination without grounds, but quite another to place them all in a category of deficiency due to their physical lives.

A rebuttal of the arguments around menopause and divorce

There are two basic flaws in the demand that financial provision on divorce be adjusted for the menopause. One is the risk of reverting to 19th-century images of women with the consequent removal of advances we have made; the other is the generalisation that all women will lose income by suffering the menopause. Some may suffer for a few years, one in four according to Shahzady; some may not or only briefly; some may carry on at work; some may never have had or intended to have a paying career at all; half of the divorced women are younger than the average of menopause; others are older and past it. So what is being suggested are more complicated and aggressive financial negotiations for a small section of women who fall into the category of being middle aged and at work and suffering to the extent that it affects their income and their employers are not making adjustments. However, research has shown that most women do not get anything at all out of the divorce settlement because their husbands do not have the means, and that the entire system is run largely for the better off.4 Indeed, the least well off spouses lose their awards pound for pound to Universal Credit. A divorced wife who gives up work because of the menopause will not be able to count on financial provision making it up to her.

Other European countries, Australia and New Zealand manage to have fairer, more straightforward laws with little ongoing maintenance, even though women all over the world go through the menopause. More older women than ever are at work, about one in six of all workers. The disadvantages of being of menopausal age are widely known. The advantages, however, of additional confidence, freedom from menstruation, more experience and less childcare responsibility are also present. A survey carried out for noon.org.uk found that 78% of women of that age did not want to be branded as menopausal.

Most poignant of all is the blithe disregard in family law for single women. They too suffer from possible discrimination at work, some from childcare burdens, from the cost of living, from lower pension provision. However, the call for recompense for these handicaps, where they exist, is only ever made in relation to women who are fortunate enough, some would say, to have been in a presumed sexual relationship with a man. There is no one to compensate a 50-year-old single woman who is feeling less able to work. Wives and in some cases cohabiting women are entitled to financial provision on divorce and/or death, to a share in pensions and property, tax advantages and better child support enforcement through transfers of capital. They may or may not have children when dissolution occurs. It has been said (E v L [2021] EWFC 60, Mostyn J) that the childless wife should be treated with no less generosity than the mother; and it may be that the children have long since left home. In financial provision law women who have once lived with a man are often exempt from ever being expected to work again, and unfortunately this legal presumption is reflected even in the younger generation today. Once married, nobody asks why they are not working outside the home: it is a given that they have escaped that path. It is high time that family lawyers showed some empathy for single women by pressing for better conditions for all women and most especially by fighting for enforceable child support.

Treatment of women: historical context

As all readers will know, the 19th century saw the oppression and domination of women (and, of course, so did preceding centuries) in the realms of finance, work, voting, exercise and custody of their children. What was different about 19th-century oppression was the scientific explanations that were produced to justify male dominance in every sphere. A sample of those explanations, below, may make you laugh or cry.

When I was teaching law, I would quote Nietzsche to my students: ‘when a woman has scholarly inclinations there is usually something wrong with her sexually. Sterility itself disposes one toward a certain masculinity of taste; for man is, if I may say so, “the sterile animal”’.5 This did not seem to deter them. They knew that the old supposed physical and mental inferiority of women was a thing of the past and so it should remain. In the 19th century the ideology of separate spheres for men and women prevailed. A woman was considered physically weaker but morally superior to a man, which meant that she was rightly constrained to the domestic sphere, and deemed to be queen of the home, which militated against giving her the vote. Like Nietzsche, some doctors regarded study as having a damaging effect on the ovaries, turning fertile young women into dried up crones. A woman who evinced sexual interest risked being labelled a nymphomaniac or hysterical, and very damaging medical treatments were given to cure them. Women who earned wages were unnatural, denying their vocation of childbearing and rearing. This supposed physical and mental frailty meant of course that she required male protection over her money, her whereabouts and her care for her children, and that she could not be trusted to vote or make weighty decisions. Even in the 20th century, those who fought against women’s liberation relied on women’s natural and traditional roles as they saw them. It was claimed that madness in any form is a breakaway from traditional roles. Phyllis Chesler wrote: ‘what we consider madness, whether it appears in women or in men, is … the total or partial rejection of one’s sex role stereotype’.6 Octavio Paz, Mexican Nobel Prize winner, considered: ‘women are inferior beings. Their inferiority is constitutional and resides in their sex … which is a wound that never heals’.7

Nineteenth-century doctors believed that menstruation was a particular handicap, an illness for which women should treat themselves every month and limit their physical and mental activity, and especially limit their sporting activities. Women’s sport has taken more than a century to recover and only now is being perceived as equally demanding and entertaining, never more so than England winning the UEFA European Women’s Championship this summer. Premenstrual symptoms were seen as a cause of irrationality and excess emotion in women giving them a reduced capacity for reason. Of course, divorce was rare or non-existent and so was the working woman, so those factors were not brought into play on dissolution.

A revival of the past?

By now generalising menopause difficulties, in the way Farhana Shahzady advocates, the 19th century is being revived with consequent – no doubt unspoken – barriers to be placed in the way of working women and their advancement. The point of feminism was for women to escape being defined by their biology. The tendency of family judges and practitioners to rule out the requirement and ability of any divorced woman, with or without children, ever to keep herself again is as insulting and self-fulfilling an approach as are the reported automatic low expectations of ethnic minority schoolchildren. The rejection of self-support in English law also risks setting back the great challenges of equal education, equal pay and equal opportunities facing women. If the notion takes hold that once they have partnered with a man, they need never go to work again, then it must follow, consciously or unconsciously, that they can go to the back of the opportunity queue. Easy divorce must mean that every woman should, and should want to, take control of her own ability to self-support throughout her life. This was never truer than now when the huge rise in the cost of living means that many people holding jobs cannot afford to support their families, let alone a separated family and a new one.

Certainly, the English law of financial provision needs adjusting, but in the opposite direction to that suggested by Shahzady. As the New Zealand Law Commission said recently:8 ‘the moral basis for why one partner should be liable to provide income support to the other partner through maintenance after the relationship has ended is unclear in contemporary New Zealand’.

Gender equality

It is posited that women, especially middle-aged women, suffer more economic deprivation than men on divorce. This situation is never advanced as an argument against easy divorce, but is thrown on to financial provision law, at least where there is any money to distribute. English law is the most stereotyped in the western world in this regard, despite the facts. The EU Gender Equality Index9 ranks the United Kingdom at above the EU average, behind only Sweden, Finland, France, the Netherlands and Denmark, which puts paid to the argument that English financial provision law cannot be reformed until after social equality is achieved. Nearly every other country in the European Union, and many beyond, has financial provision laws that recognise pre-nuptial agreements, time-limit maintenance and divide post-marital property equally. They are also more likely to ensure that child support is enforced after separation.

There is no link that can be established between gender equality in practice and financial provision law in other European nations, but perceptions of independence matter. So one has to ask why England is the odd one out, not why our law should not change. The current system is discredited by its ineffectiveness and the frequent dissipation of a large proportion of the couple’s assets in legal costs in operating it. There is little benefit for anyone who really needs it in our existing system, and the way it is used by wealthy divorce tourists is shameful.

No-fault divorce

Now no-fault divorce has been introduced. Changing the ground of divorce to no-fault will not assist couples to reach an early amicable settlement because, according to research, sudden and short notice of divorce makes couples less amenable to resolving issues than a more protracted and gradual period of coming to terms with it, as in say 2 years’ separation. There is no point in bringing in no-fault divorce with the aim of removing the bitterness and deception alleged in fault-based divorce when the same elements, writ large, dominate financial provision law. Moreover, the government has recently announced that it will pay couples with children to mediate.10 If the government has to help people to avoid the law, there must be something very wrong with that law!

The position of the children involved in divorce is not sufficiently considered in the law.11 Surely maintenance for children should continue to the age of 21 at least, given that so many go into higher education. The emphasis of financial settlement should shift towards the support and housing of children. The enormous legal costs attaching to disputed financial cases sometimes dissipate the very assets that should be preserved for the children. Now that there is hardly any legal aid – and, indeed, even when it was available – using it for these disputes is a deplorable waste of resources that ought to be preserved.

Conclusion

The vested interests of lawyers who act for the very few extremely wealthy couples, and who have opposed all reform, should not be permitted to block reform for the average and the many. COVID-19 has accelerated the move to remote and online handling of family disputes. There is an urgent need for a new law that is adapted to that and to the situation of no-fault divorcing couples who have little legal advice and need ready guidelines. Lawyers who advise in bigger money cases may well say that the subtlety and adaptability of the current law should not be lost and that the more dependent spouse should not lose out. Those lawyers benefit from the complexities and antagonistic nature of the current law.

The reforms proposed in New Zealand and those proposed by Baroness Shackleton and me – binding pre-nuptial agreements, an equal split of post-marital property, longer support for children and shorter support for spouses – would offer an off-the-peg solution and one capable of online resolution, as in the Australian project.12 They would end the attitude of some lawyers that, since we all look better in Savile Row suits, there must be no Marks & Spencer ready-made. The increasingly frantic efforts by financial provision lawyers to justify by, for example, the menopause the unjustifiable English exceptionalism may lead us down a dangerous path.