Divorce is in chaos – long backlogs, people representing themselves through court hearings they don’t understand, a process already too hot with anger to go through mediation strung out for unjust periods. The oceanic amounts of human venom have always been there, along with complaints about lawyers’ fees. But this rumble of discontent has started to sound something more like an earthquake.
Lady Deech’s private member’s bill, divorce (financial provision), comes in response to that. She wants more guidelines – binding pre- and post-nups, a straight 50:50 split of “post-marital assets”. She says: “My view is, it’s better to have broad-brush guidelines, even if you have hard cases along the way, rather than have it as it is now.
“The big-money divorce cases that make the newspapers don’t do anything for women who work for a living,” she told me. “What we see is women who have never done much, never put their hands in cold water, getting big payouts. That does not inspire young women to make a living.” On this, everyone is agreed: rich people divorcing may be a fun spectacle – we are about to witness what is being billed as Britain’s biggest divorce between financier Chris Hohn and his wife, Jamie Cooper-Hohn – but it has very little to tell us about the realities for the other 120,000 or so non-rich people who do it every year. But part of Deech’s intention is to end London’s “divorce capital of the world” status on feminist grounds – that our daughters will go forth, unafraid of cold water. Whatever cold water actually signifies, in this context.
Marilyn Stowe is the senior partner at Stowe Family Law, a hugely experienced divorce lawyer: one of those people whom, once you’ve spoken to them, you can no longer mention without attaching words like “redoubtable”. She doesn’t disagree that the outlook is poor, but she disagrees about the cause: since April last year, nobody has been eligible for legal aid, save for cases of domestic violence or forced marriage. “One or two incomes, one or two modest pensions, a modest home with a mortgage, a husband, a wife and two kids. That is the norm. These cases would normally have been dealt with with the assistance of legal aid and dispatched relatively cheaply. It’s that kind of case where people are genuinely suffering injustice now.”
“Divorce,” said a divorcing solicitor – let’s call her Emma – “is one of the most important rights women have in England and Wales, in that it does recognise the earnings women lose, and it does recognise that whatever your contribution was to the marriage, that is equal to whatever your husband earned. It is feminist to get married, just for that reason, because you can’t get divorced unless you get married in the first place.” She thinks one reason it is so expensive is this sad human refusal to separate the legal and the emotional: “People will ring their solicitor just to say, ‘you’ll never guess what he’s done now’. Then talk for an hour. That’ll cost them 210 quid. I know all this, and I’d still be forwarding emails from my ex to my solicitor, saying ‘look what he’s said!'”
Raging parties use this against one another. Cordelia (not her real name) described her ex “sending 17-page faxes, which they would charge me £10 per sheet to receive, plus £10 per sheet to send to me, plus my solicitor’s email. It would be £500, and the message would be that he wanted two hand towels from the downstairs bathroom.” Her divorce cost her £43,000.
The question is, how are people finding the money? Mediation actually hasn’t gone up. Divorce numbers are down slightly, but not significantly; the courts are still packed with couples, still spending tens of thousands of pounds, and nobody is any richer. Emma is paying for it with savings. Cordelia “was having to get credit cards out to put the lawyers’ fees on. One after the other. In the end, I disinstructed my solicitor. Because I had so many sleepless nights, going, ‘how am I going to afford to pay for this?'”
But there’s a new wave of finance, the litigation loan: Novitas Loans, formerly Novitas Futures, came into being in 2011. Jason Reeve is its incredibly pleasant, affable MD, speaking on the phone while setting up a garden fete in Salisbury. “We did our first loan in June 2011, since Christmas we have done 120% growth, by Christmas we would have done, I think, 180% to 200% growth. We literally sign a new firm every single day of the week. I got two emails this morning. We’re viewed by the courts as the benchmark for whether the client can get funding or not.” They deal with 400 divorce law firms and lend several million pounds a month. Ask people about litigation loans, the first thing everybody says is, “well, they’re not Wonga”.
The head of in-house forensic accountancy (surely the sexiest unsexy job title in the world) at Stowe Family Law, Nick White, explained. “Say the husband has £10m-worth of assets, and the wife has nothing, and you’re talking about a 20- or 30-year marriage, two kids, the wife is looking to have her share of assets. Unless you’re able to secure funds from, say, a wealth bank who are interested in managing her investment post-divorce, there is no real market for that lady to acquire funding.”
Until now. Reeve gives the terms: “Our average client is paying about 10%, and the loan isn’t serviced. As a lender, I can’t tell you how many thank-yous we get.” He certainly sees his as a socially motivated business. “There are cases that we lend on now that would previously have qualified for legal aid. We’re saving the state money. But importantly, we’re giving access to so many people who otherwise would not be able to represent themselves.”
However, according to Naomi (not her real name), divorcing in west London, having shared what was once a modest terraced house but is now a million-pound asset, this has entirely capsized the principles of the law; her ex ran up costs as a deliberate strategy, and she had to take out a Novitas loan. The divorce ultimately cost £520,000, “completely,” she said dryly, “depleting the matrimonial asset”. Her conclusions are not dry. “Corporate values have changed family values in the UK. For me, in my own life, I saw the financial and emotional debris. For me, as a business ethic, that isn’t so very different from mining. It’s lucrative, and it doesn’t take into account the social consequences.” The mining she alludes to is the nickel and cobalt former holdings of City of London Group, which put in seed funding for Novitas but no longer has any involvement. The difference of course is that minerals are finite and hate is inexhaustible. This business ethic may have found a well it can drink from for ever.