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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.
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Thanks for your understanding, Peter
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?
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?
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.
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.
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