Costs

Gap #592

The assumption

A mortgage capacity report is just the figure a comparison site gives me, so I can sort it out myself.

The reality

A mortgage capacity report is a written statement from a regulated mortgage adviser setting out what a lender would realistically advance to that person, on what basis, and against the housing need being put forward. It has to reflect the real picture: income, existing credit commitments, child maintenance, deposit or share of equity, and age at the end of the term. A calculator figure usually leaves most of that out, and a report that leaves it out is the one most likely to be challenged. In financial remedy proceedings a report like this is normally directed as part of disclosure, rather than left to each party's own say-so. In the Express Financial Remedy pilot the timetable places valuations and mortgage capacity evidence shortly after Form E, so the deadline arrives sooner than most people expect. Reports are usually arranged over days or weeks rather than on the day, which is why the adviser needs to be in place before the direction bites. A McKenzie Friend cannot prepare the report or give mortgage advice; that has to come from a regulated adviser. What they can do is help you work out what the direction is actually asking for, keep the figures you disclose consistent with your Form E, and point you towards advisers who prepare these reports for litigants. Help Network (helpnetwork.co.uk) is one service people use: it prepares court-ready mortgage capacity reports and works alongside solicitors, mediators and McKenzie Friends. Treat any introduction as a starting point rather than a recommendation. Check the adviser's regulation yourself, agree the fee in writing before anything is prepared, and be sure the report addresses the housing case you are actually putting to the court.

Gap #591

The assumption

If I move out and keep paying what I pay now, that is an agreed arrangement we can both rely on.

The reality

Without a court order, a pattern of payments between spouses is informal. Either person can change it, and it does not bind the other (see gaps 75 and 549). Financial claims between spouses stay open until a court order deals with them, however long the separation lasts (see gaps 425 and 559). Someone who needs temporary support during the divorce can apply to the court for maintenance pending the outcome of the proceedings, but the outcome is not guaranteed (see gap 41). Texts and emails about money after separation can have legal consequences (see gap 256).

Gap #584

The assumption

If I move out of the family home, I have to carry on paying the council tax and the household bills.

The reality

The answer depends on the type of bill. Council tax follows who lives in the property. Where a joint owner or joint tenant moves out and another resident stays, the remaining resident is solely liable from the date the other person moved out. If nobody is resident, the owner is liable. Gas, electricity and water follow the account. An account in your name, or in joint names, stays your responsibility until it is closed or moved into one name, so the supplier has to be told you have left. Arrears built up while you lived there stay with the account holder. Whether one spouse contributes towards the other's household costs after separation is a different question. That is a matter for agreement, or for the court in financial proceedings. The mortgage is different again: a joint borrower stays liable to the lender after moving out (see gaps 36 and 41).

Gap #568

The assumption

There is a legal duty to negotiate, so if I do not agree to anything I will be punished.

The reality

There is no legal duty to negotiate or to agree. What the rules do is expect real engagement. The court must consider non-court dispute resolution, such as mediation, at every stage, and can pause a case so the parties can try it. The pressure comes through costs. If someone fails, without good reason, to attend a MIAM or non-court dispute resolution, the judge can take that into account when deciding whether to make a costs order. Attending and considering a proposal is not the same as having to accept it.