FREE CHAPTER from ‘A Practical Guide to Menopause and Family Law’ by Jennifer Williamson

CHAPTER ONE – WHY THIS IS IMPORTANT

The last few years have seen family law, and wider communities increasingly recognise how the menopause can adversely impact a person’s ability to live and work as normal. This has been widely received as a welcome and important development in equity.

Though the political treatment of this issue is beyond the remit of this book, it is also relevant to note that sustained media and press coverage of how the symptoms of menopause can affect individuals, business and the economy has pushed this issue up the political agenda. Key reports which have flowed from this include the House of Commons Women and Equalities Committee on Menopause and the workplace report of 28 July 2022. The Government’s response was published on 24 January 2023 which accepted around half of the recommendations in full, part and in principle but notably decided against making the menopause a protected characteristic under the Equality Act and against the introduction of “menopause leave” pilots in England.

The spotlight on menopause within family law cases is possibly more recent and at the time of writing this text there are no reported cases in which the family court has made a particular decision because of the menopause and/or where a decision has been influenced by a party experiencing menopausal symptoms.

Family lawyers may be aware of a number of employment tribunal cases concerned with menopause discrimination across three protected characteristics: age, sex and disability discrimination. Thus far, the employment tribunals have decided that menopause itself is not a disability but that menopausal symptoms can be disabling when the symptoms’ impact on day-to-day activities is more than minor or trivial. It is, though, yet to be seen whether individuals will start to cite the menopause as a factor which the court should consider in family law cases. There is still more uncertainty about how the court might deal with such arguments as and when they arise. Though this book includes information about how such arguments could be put together and progressed, it is specifically not within its remit to predict how, when or where family law could or should develop in relation to the menopause.

What is clear at this stage is that every client who is, or might be, experiencing menopausal symptoms will have different particular needs of relevance to the running of the case if not the ultimate outcome. The purpose of this book is to identify those needs and guide practitioners to meet them.

Understand your client

The work of lawyers includes advising people about legal processes and principles. Many disciplines can do that within quite clinical and theoretical parameters. Family law is quite the opposite though, dealing with people, human relationships and conditions, an ever-changing and very individual landscape. To do this well, we need to understand our clients and their particular circumstances. It is not suggested that the need to understand your client is anything new!

What may be new, however, is specific attention now being focused upon how adverse menopausal symptoms can make it harder for people to deal with the process of divorce and other family law matters. So, at the most basic level it should assist the practitioner to know (or, perhaps more practically, have in mind) if their client, or indeed the other party in a case, might be living with such symptoms in order to help them proceed and advise accordingly.

In the first instance, to understand the particular family law issues and needs arising from the menopause, family lawyers need a basic knowledge of what the menopause is and how it can manifest itself.

What is menopause?

Menopause is when a person has stopped menstruating due to lower hormone levels, and has not menstruated for 12 months, which state usually occurs between the ages of 45 and 55¹. Many people experience symptoms in the years before their menopause, which time is known as “perimenopause”. Strictly speaking, references within this book to “the menopause” and “menopausal symptoms” are to “the perimenopause”, and “perimenopausal symptoms”.

This natural life event hasn’t previously found itself at the centre of many discussions, particularly in the workplace or legal cases. It might even have been considered somewhat taboo. The last few years have seen people increasingly willing to speak up about their experiences, though, which has shown us that the impact on day-to-day life, relationships and work can be significant.

Symptoms

The NHS² tells us that the symptoms of menopause can last for months or years and include, at various levels of severity:

• Change to normal pattern of menstruation (periods), trend towards irregular periods and eventual cessation;

• Changes to mood: low mood, anxiety, mood swings, low self-esteem.

• Problems with memory or concentration (brain fog)

• Physical symptoms:

  • Hot flushes and dizziness

  • Difficulty sleeping: increased tiredness and irritability

  • Heart palpitations

  • Worsening headaches and migraines

  • Muscle aches and joint pains

  • Changed body shape and weight gain

  • Skin changes to include dry and itchy skin

  • Reduced libido

  • Recurrent Urinary Tract Infections

Quite aside from the emotional difficulties arising from relationship breakdown, family law matters can be complex, generally requiring the people involved to provide lots of documentation, to recall and give detailed instructions sometimes including about fairly historical matters. Clients need to absorb, process and understand relatively complicated legal advice. This can be time consuming and confusing at the best of times, but very much more difficult against a backdrop of menopause symptoms as above.

Clients may be unaware, or may not acknowledge that they are experiencing menopausal symptoms. For example, they may dismiss fatigue on the basis that it is expected tiredness and exhaustion arising from the daily juggle, or the anxiety of a failing relationship. It is not for a practitioner to diagnose whether or not any particular client is experiencing the menopause. In fact, from a family law perspective invariably the relevance, and thus focus, is likely to be on the symptoms rather than cause. As such, there is a need to appropriately encourage clients to be open about their symptoms, so that we can support them by signposting to the various resources available including to GPs and other menopause specialist clinicians. A sensitive approach is inevitably required. It is unlikely that any person will want ‘different treatment’. Though menopause is a natural biological life stage for most, it should not be forgotten or overlooked that some people encounter it much earlier than might be expected (for example, following a hysterectomy). Various people will experience and view things differently. There will be a broad range in terms of the level of the client’s comfort discussing this topic with professional advisers.

Vulnerability

Menopausal family law clients are likely to be simultaneously dealing with relationship breakdown, taking legal advice, and symptoms of the menopause in addition to the usual trials and tribulations of day-to-day life. Balancing this number of competing, and arguably equally important, factors can make our clients vulnerable. The writer would suggest that it is important to recognise this and to consider that, for example, difficulties arising these factors from could contribute to people giving instructions to agree potentially detrimental terms, or they may find it more challenging to understand relatively complicated legal and financial advice. Perhaps, therefore, currently the greatest significance of menopause in family law relates to the professional client care that we provide.

Vulnerability and running a case

Before turning one’s mind to how menopausal symptoms might be relevant to the legal subject matter of any particular case type, it is vital to consider the extent to which your client may be vulnerable. For the avoidance of doubt, a client’s capacity to instruct is a separate issue (beyond the remit of this book) which should be considered in all cases and it is not suggested that the menopause reduces mental capacity.

Unless acknowledged and addressed, vulnerability can put clients at a disadvantage. Arguably, failing to address that disadvantage could amount to (a) not acting in the best interests of the client³ and (b) not taking account of your client’s attributes, needs and circumstances⁴. Either would be a breach of the SRA code or principles which would bring with it the risk of a complaint to the SRA, reputational risk and financial claims for damages or compensation.

The SRA practice note⁵, “Accepting instructions from vulnerable clients or third parties acting on their behalf”, is a good starting point when thinking about from which reasonable adjustments, or practical support, a menopausal client may benefit. Detail of more relevance to menopausal clients is then found within The Law Society’s practice note, “Meeting the needs of vulnerable clients”⁶ which specifies that:

“Living with a disability, illness or diagnosis does not in itself make someone vulnerable. In the context of legal advice, it is the person’s situation and barriers to accessing legal services that may make them vulnerable. Equally, a person may be vulnerable without any disability, illness or diagnosis: for example, if they are recently bereaved or frail”.

As such, many family law clients will be at risk of circumstantial vulnerability by virtue of the loss of a significant relationship, or the stress of dealing with that. Menopausal clients may be at additional risk of further vulnerability on top of that if their symptoms make it harder to access, understand and retain legal advice. A client’s vulnerability may change as a matter progresses so notes should be recorded on files at the beginning, and during the lifetime of, a case to evidence the practitioner’s identification of risk factors and how they have dealt with them.

Dealing with vulnerability

Communication preferences

How the practitioner communicates with all clients, but particularly with those who are vulnerable, is key. Clear family law advice is more important than ever when dealing with menopause related issues within family law cases.

Paragraph 3.4⁷ of the SRA’s code of conduct for solicitors requires practitioners to:

“..take account of your client’s attributes, needs and circumstances…”

Moreover, paragraph 8.6 of the SRA’s code of conduct for solicitors requires solicitors to:

“..give clients information in a way they can understand…”

Particular attention should therefore be given to when and how to communicate legal advice if a client’s adverse menopausal symptoms include problems with memory or concentration. Long and verbose correspondence should be avoided more than ever.

Clients should be asked about any specific needs or preferences in this regard. These may include for documents to be written in clear, simple language (as is likely to be standard for most lawyers) and/or for advice and information to be predominantly verbal. Practitioners may choose to, for example, send copies of file notes recording any key conversations and advice to the client as a matter of course. That not only protects the lawyer, but gives the client a written record of advice to which they can refer as required.

The potential impact of vulnerability arising from adverse physical symptoms can be eased by giving due care and attention to what is the right environment in which to conduct meetings⁸. Where practitioners have the choice of meeting room, it would be sensible to select one where there is the ability to vary temperature and lighting levels. Easy access to toilet facilities, with free sanitary products, can also be helpful. Frequent breaks, refreshments and water probably all go without saying.

In the same way that we would not hesitate to specifically invite other vulnerable clients to bring a trusted friend or family member to meetings with them, this is just as pertinent and relevant to a menopausal client.

Vulnerability within court proceedings

Vulnerability should also be considered with specific reference to court proceedings. In this regard, the High Court and Court of Appeal⁹ have given particular and recent guidance on special measures for vulnerable witnesses, which in a nutshell are to ensure the quality of a person’s evidence is not reduced because of their vulnerability.

Part 3A of the Family Procedure Rules 2010 contains the provisions for “Vulnerable persons: participation in proceedings and giving evidence”. Where matters are in proceedings, the court has a positive duty to consider whether a party’s participation in proceedings is likely to be diminished by reason of vulnerability¹⁰ . The court is, of course, reliant on a party, or their legal representative, to provide information about vulnerability to enable the court to conduct this exercise. Naturally, consideration about the need for this will be dealt with on a case-by-case basis. It, may, however, be helpful to bear in mind that the factors the court should consider in this regard are rather different from everything we have looked at so far, as follows:

“(a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of—

(i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or

(ii) any members of the family of the party or witness;

(b) whether the party or witness—

(i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;

(ii) has a physical disability or suffers from a physical disorder; or

(iii) is undergoing medical treatment;

(c) the nature and extent of the information before the court;

(d) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;

(e) whether a matter is contentious;

(f) the age, maturity and understanding of the party or witness;

(g) the social and cultural background and ethnic origins of the party or witness;

(h) the domestic circumstances and religious beliefs of the party or witness;

(i) any questions which the court is putting or causing to be put to a witness in accordance with section 31G(6) of the 1984 Act;

(j) any characteristic of the party or witness which is relevant to the participation direction which may be made;

(k) whether any measure is available to the court;

(l) the costs of any available measure; and

(m) any other matter set out in Practice Direction 3AA.”

Of these factors, paragraph (b) is likely to be most relevant to menopausal clients’ evidence. It will be for the lawyer to consider with their clients whether or not symptoms are such that information needs to be given to the court to ensure vulnerability is properly taken into account.

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