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plclegal, Barrister
Category: Family Law
Satisfied Customers: 8325
Experience:  Barrister at law
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Q regarding intersection between ToLATA 1996 and Mat Causes

Customer Question

Hi. Q regarding intersection between ToLATA 1996 and Mat Causes 1973
JA: Where is this? It matters because laws vary by location.
Customer: England
JA: What steps have been taken so far?
Customer: Action under mat causes, W suing for half marital home bought with H father loan. W wants soft loan disregarded. H being sued for loan repayment
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Loan note 4 yrs before divorce initiated, no charge on house tho. Can F use ToLATA to prevent Mat court awarding half of total value to W?
Submitted: 15 days ago.
Category: Family Law
Expert:  Virtual-mod replied 14 days ago.

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Expert:  plclegal replied 13 days ago.

Good evening and thank you for requesting help with your legal issue, I am happy to assist. The moderators alerted me to your request for help. I am a family law barrister and will be able to assist you.

I will not be able to respond in full this evening, as I have already finished work for the day. I hope that you don't mind waiting for a response until the morning, when you will have my full attention.

Please note that our discussions on this site are for general information purposes and do not create an lawyer-client relationship. It is always recommended that you consult with a local solicitor for specific legal information.

Thanks for your understanding, Peter

Customer: replied 13 days ago.
that's fine. I am not seeing to frustrate the will of the court, simply to establish the legal situation as, I believe, ToLATA is not discretionary in the way that MCA is, and that therefore action under ToLATA may clearly set the material asset boundaries within which the Family court can exercise their customary discretion...
Expert:  plclegal replied 13 days ago.

Good morning.

Essentially both routes are discretionary.

The family court judge has the option to accept evidence about the loan or disregard evidence about the loan. Essentially H will have to demonstrate that this was a loan that was intended to be repaid to his father. It matters not whether it was a loan to H or H and W combined, if it is a loan it should be repaid.

I would expect the father would need to joined to the family proceedings as an intervenor for the purposes of the ruling.

The family court has the ability to deal with the issue. You don't need to get into tolata proceedings in my view. Further, the judge in a tolata claim is going to apply the same evidentiary test as to whether there was indeed a loan or not. So it does not assist in my view going down this route!

I hope that this answers your question?

Customer: replied 13 days ago.
Not really. The evidentiary test might be the same but the aim in each action is different. The MCA court appears to have greater latitude and its aims are to ensure the welfare of W, and often (as I understand it) is quite forward in allocating funds and assets with that primary goal in mind, whereas ToLATA would be soley focused on the loan.
Would proceedings via ToLATA be less likely to take into account the Matrimonial Causes checklist, or would it also consider/respect these precisely because there was an ongoing MCA action?
Expert:  plclegal replied 13 days ago.

Tolata proceedings aren't going to consider the MCA checklist.

My point is that if H's father is joined as an intervenor to the matrimonial proceedings, the issue of the loan is then decided as a preliminary issue. The funds are then either part of the matrimonial asset pot or they are not. Given the fact the evidentiary test is the same, it effects the same outcome if H succeeds on the point and the funds are apportioned to his father. Then the MCA test only applies to any remaining funds/ assets left in the pot.

Tolata proceedings are invariably lengthy and costly. I just don't see the advantage of taking this through that route given the family court has the same options available.

I trust that assists further?

Customer: replied 13 days ago.
Apologies for my rather ponderous and lumpen understanding, but does the MCA checklist affect the consideration of the preliminary decision? My understanding is that the court has the discretionary power to treat some or all of the loan as a soft loan for the benefit of W whereas the ToLATA court would not be concerned with this, or would it?
Do they "respect" each others' patch as it were?
Expert:  plclegal replied 13 days ago.

No, the MCA checklist is not going to affect the purely factual decision about whether this is a loan or not. The question is "is this a marital asset or a debt owed to H's father"? It's a matter of fact. The court isn't going to disadvantage H's father if it's established there was a valid loan by awarding W a share of this money anyway. It would simply not be a marital asset. It's a debt that needs repaying prior to the division of the marital assets.

If a judge ruled that this was a loan and then proceeded to claw back some of H's father's money to give to W, the order would be very appealable, particularly if H's father is joined as a party.

Customer: replied 13 days ago.
That's great, thanks very much
Especially thanks for your patience, "all professions are a conspiracy against the laity" - G.B. Shaw ‍♂️
Expert:  plclegal replied 13 days ago.

Very happy to assist.

Thank you for your enquiry today. I am happy to answer follow-up questions - please do get in touch with requests for extra information or further queries and I will do my best to help you.

Expert:  plclegal replied 10 days ago.

Thank you again for visiting JustAnswer, please do let me know if you have any additional questions in the future. I am also happy to answer any new questions on other topics that you may have, you can request me by putting “for PLCLEGAL” at the start of the new thread. Best wishes, Peter