In my previous blog, "Divorce during the menopause - should I talk about it?" I suggested that for women who are seriously impacted by peri-menopause or menopause it might be advisable to raise your menopause within financial proceedings on divorce as a factor for consideration. Why? Because the court has a duty to consider all the facts of your case, including your individual needs and circumstances.
The Matrimonial Causes Act 1973 sets out the powers of the court to make financial orders on divorce. There is no mathematical formula which tells the court how the finances should be split. Instead, it is an exercise of discretion by the judge. Section 25 of that Act tells the judge how to exercise their discretion by setting out a number of statutory factors the court must consider. The most relevant factors in this context are:
- "The income, earning capacity… which each of the parties to the marriage has or is likely to have in the foreseeable future…"
- "Any physical or mental disability of either of the parties to the marriage."
There is a growing body of statistical evidence that menopause can impact women’s work. The 2022 Fawcett Society report notes that:
- 44% of women said their ability to work had been affected, comprising 18% of women who said that their symptoms currently affected their ability to do their jobs, and 26% in the past
- One in ten women had left work due to menopause symptoms
- 14% of women had reduced their hours at work
- 14% had gone part-time
- 8% had not applied for promotion
So it is clear that for a significant percentage of menopausal women, their income and earning capacity is being adversely affected. That will undoubtedly impact their financial needs on divorce.
Turning to the second factor, menopause is obviously not an illness, it is a life event, but there have been cases in other areas of the law where the symptoms of menopause have been treated as a disability. I see no reason why the same should not apply in family law.
Despite this, menopause is still not a factor which is commonly given open consideration. While a woman's employment history, options and earning capacity are considered, there is usually no overt mention of the role of menopause in that. Similarly, issues such as anxiety or chronic fatigue feature frequently within Forms E without mention of the menopause, but of course it is perfectly possible that the underlying reason has simply not been disclosed. Until recently, menopause was not something most women advertised, and that remains true for very many women now.
So can you raise the issue and impact of your menopause in divorce proceedings without actually mentioning the word "menopause"? I think that's certainly an option, and probably what has been happening for many years. However, while it may feel safer and more comfortable to take this approach, if you are really suffering I think you potentially risk a lack of understanding of your needs without that layer of detail. Given growing awareness in this area, I expect we are going to start seeing it mentioned overtly.
What is hopefully clear from the above is that I think you need only disclose your peri-menopause or menopause if it is having, or is likely to have, such a serious impact on your life that it is affecting, or is likely to affect, your income, earning capacity, or result in symptoms which would qualify as a disability. But, if you do meet this test, I do believe you should raise it within proceedings if you feel confident enough to do so.
Your lawyer will advise you to take an evidence-based approach, which may include some of the following:
- In your Form E (a key document in which you set out your case in terms of your financial position and your needs) explain your symptoms and the impact they have on you, particularly in relation to your ability to work and your earning capacity.
- Speak to your GP and ask them to confirm your symptoms and any treatment in writing. Attach this to your Form E.
If this is not accepted by your spouse's legal team:
- Consider further evidence and detail. Questions to consider may include:
- for how long this situation may continue? What is the likely impact of that?
- are there any steps you could take in terms of treatment - what do they cost? Is it reasonable for you to do so? Would that impact your ability to work or earning capacity (positively or negatively)?
- Consider speaking to a specialist menopause doctor who may be able to provide more detailed evidence.
- Consider whether you can obtain evidence from other sources - for example, a former or current employer.