Regardless of the reasons which might prompt the end of a marriage, I believe that there are few individuals who finalise the terms of their divorce without even a little uncertainty.
Contemplating what happens next is only natural, given that some of the relationships concerned may have lasted decades.
Some of the question marks which arise may well be about future financial prospects, something which might be particularly acute for older men and women.
Whereas younger couples might arguably be more relaxed about their chances of finding work, restocking their bank balances and even meeting new partners, some of their older counterparts feel rather more pressure about what is to come.
If we cast our eyes over available data, we can see why such issues might be more common.
Figures published by the Office for National Statistics (ONS) show that the number of men over the age of 60 who divorce has increased by 48.3 per cent in the last quarter of a century (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2022).
Meanwhile, during the same 25-year period, the number of women of a similar age who divorce has gone up by 74 per cent.
Certain commentators have suggested that as well as some of those women having paused careers or given them up entirely to raise a family, health concerns could have a negative impact on their financial futures.
The Times has reported claims that women’s earning capacity is affected by the menopause, leading to them potentially “getting a rough deal” in divorce settlements (https://www.thetimes.com/article/2c5cdb03-59a5-4a75-9bd6-2315fa8b844f?shareToken=25ad00265fd80fe61443d4f1c7e53cf2).
It cited a 2022 survey by the gender equality charity, the Fawcett Society, which revealed that 44 per cent of women found their ability to work was affected by menopausal symptoms (https://www.fawcettsociety.org.uk/news/landmark-study-menopausal-women-let-down-by-employers-and-healthcare-providers).
The possibility of women being disadvantaged could, it was suggested, be addressed by a better understanding of the financial consequences of menopause being factored into the spousal maintenance paid to a wife when her marriage ends.
However, the family courts already have the provision to do just that.
Deliberations about financial remedy orders are conducted according to the Matrimonial Causes Act 1973 (https://www.legislation.gov.uk/ukpga/1973/18/section/25).
Section 25 of the Act clearly sets out the factors which judges should take into account when calculating a divorce settlement, including the age, earning capacity and health of both spouses.
Even though family courts have a duty to try and achieve a financial “clean break” where they can do so without causing undue hardship, they still have the power, where appropriate, to make joint lives orders – enabling spousal maintenance until one or the other parties die.
These orders are far less common than they used to be but may be considered appropriate in circumstances where a spouse has no or very limited income while their ex still has a strong earning capacity or other reliable income stream.
Family courts can also make pension sharing orders, making provision for income in later life.
There is a chance of reform.
Last December, the Law Commission produced a scoping report, outlining a possible rationale for change (https://lawcom.gov.uk/news/law-commission-publishes-scoping-report-on-financial-remedies-on-divorce/).
That document set out a series of options relating to whether the discretion available to family court judges should remain as it is or be reduced.
Although we won’t know for some time whether – and, if so, how – the Commission’s report will translate into legislation, I firmly believe that providing judges with the flexibility to deal with all relevant issues, such as the health of both spouses in a divorce and how it might affect their financial circumstances, is essential.
