Menopause, Divorce and Spousal Maintenance

Year Published: 2022

Menopause, Divorce and Spousal Maintenance

 

Menopause is a hot topic in society at the moment with celebrities such as Gwyneth Paltrow, Michelle Obama, Oprah Winfrey, and Angelina Jolie breaking societal silence around the topic. Davina McCall’s documentary Sex, Myths and the Menopause shone the spotlight on how menopause can affect the mind as well as the body with memory loss, and brain fog decimating women at work. HRT shortages have recently hit headlines. It is also a topic that has started a movement in the legal sector as a group of family lawyers set up the Family Law Menopause Project in early 2022 to help family lawyers better support their clients who are affected by menopause, particularly where they may not be diagnosed.

 

The statistics are surprising.  Peri- and post-menopause spans 8-12 years with the average woman being in her mid-40s. It is interesting that the average age women divorce is 45 upwards. The symptoms can be debilitating and have a detrimental impact on a woman’s career. This does not fit well with the court’s approach for divorcing couples to strive towards financial independence, even when a woman has been out of the workplace for some time due to childcare/family commitments during the marriage. There has been an increasing trend over the last decade whereby spousal maintenance claims for wives have reduced noticeably in duration and the idea of a joint lives order has mostly become a fantasy.

 

On 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.  So far as maintenance is concerned the court has the power to make different types of maintenance orders.

 

The court can make an extendable term which means that a court could, for example, order a sum of money to be paid from one spouse to the other for a period of say 3 years but an application could be made to extend that period of time depending on the parties’ circumstances.

 

The court can make a non-extendable terms which means, if a spouse was ordered to pay maintenance for a period of 3 years, the court could place a bar which means that the recipient spouse could not apply 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 recipient’s re-marriage.

 

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. The court will look at 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.

 

There is increasing pressure from Baroness Deech, who wants to see as law rather than a judge’s discretion, a clean break, or very short maintenance terms. Under her Divorce (Financial Provision) Bill she originally proposed 3 years max maintenance but now proposes to limit spousal maintenance to 5 years unless the spouse would otherwise suffer serious financial hardship.

The Bill is awaiting a second reading before the House of Commons; however it has been criticised by some family lawyers and by Lady Hale who questioned the bill’s “one size fits all approach”.

 

There is concern amongst some family lawyers that the court and judges assume that women are able to work for longer and have the ability to work full time, not acknowledging that the menopause brings about hormonal changes that may make it hard for them to do so. When faced with this challenge, Baroness Deech wrote into the Law Gazette stating “most women do not suffer from the 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 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”.

 

Whilst it is important to encourage financial independence for divorcing spouses, it is important for family lawyers to remember that the Matrimonial Causes Act 1973 does not insist on a clean break, but asks that it is considered. The law says that where there is undue hardship, a clean break is not desirable. The net result when symptoms of menopause are debilitating may result in women being left with insufficient employment, spousal support and funds which makes the clean break culture particularly challenging. It is incredibly important therefore to take specialist legal advice on the subject of maintenance. The court system is founded on judicial discretion and under section 25 MCA 1973 a spouse’s age and disability are a factor the court would take into account. With the production of medical evidence to support the difficulties a spouse is encountering whilst transitioning through the menopause, it may be possible to obtain longer term maintenance orders.

 

Whilst comments made by Baroness Deech about “overzealous reliance on judicial discretion leads to uncertainty, expense and unpredictability” it does allow each family the opportunity to have a judge look at their situation and have a tailor-made agreement or order put in place rather than a “one size fits all” as alluded to by Lady Hale.

 

At SAS Daniels, our family lawyers understand that going through the menopause can impact all areas of your life.  For more information please contact Claire Porter on 01244 305926 or [email protected]

 

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