Strategic Use Of TOLATA: International, Intervenors And More (Podcast)

In this episode of Family Law Live, Anthony Gold Family Law Partner Fiona Snowdon and co-host Hero Lomas, Partner at Expatriate Law, are joined by Guy Holland of 36 Family and Oscar Smith of Expatriate Law to explore how TOLATA claims operate within matrimonial finance proceedings.

Guy and Oscar cover the procedural essentials of third-party and intervener disputes, including the TL v ML guidance, the often-overlooked duty to disclose adverse documents, and the growing challenge of WhatsApp and text message evidence. They then turn to international cases, where TOLATA can be used to enforce overseas consent orders over English property. The panel closes with a practical look at Part 36 versus Calderbank offers, followed by a live audience Q&A hosted by Hero.

You can listen to the full podcast episode below:

The full transcript of the discussion is below.

Introduction

Fiona Snowdon: Welcome, everybody, to tonight’s Family Law Live. We’re joined by Oscar Smith of Expatriate Law, an accredited cohabitation law specialist, and Guy Holland of 36 Family. Guy, please can you introduce yourself and tell us how TOLATA might operate within a matrimonial finance case?

What is a TOLATA claim?

The Trusts of Land and Appointment of Trustees Act 1996: the court’s powers

Guy Holland: I’ve been at 36 Family for around ten years, having spent the first ten to fifteen years of my career at a civil Chancery set doing property and trust of land work.

It’s worth starting with what the Trusts of Land and Appointment of Trustees Act 1996 actually says. It’s a small piece of legislation, and although everyone refers to “TOLATA claims”, the Act itself doesn’t determine what share of a property particular people own. What it actually does is:

• Empower the court to make declarations as to the extent of parties’ interests in land.
• Empower the court to make orders for sale (the power most commonly used, brought under section 14, hence these are often called “section 14 claims”).
• Empower the court to compensate a party who has a right to occupy a property but is unable to use that right.
• Very occasionally, empower the court to partition land.

Why TOLATA claims arise in matrimonial finance

Guy Holland: Between husband and wife alone, there’s usually no need to determine precise beneficial interests, because the family court has the power to redistribute marital assets however it sees fit. There’s little value in establishing whether one party has a 50% or 30% share if the court is simply going to reallocate the assets regardless.

TOLATA becomes relevant where a third party’s interest is in dispute, typically the parents (or another relative) of one spouse. That question of the third party’s interest generally needs to be resolved first, since you need to know how large the total pool of assets is before deciding how to divide it between husband and wife.

Common scenarios

Guy Holland: The most typical scenarios include:

• Family home contributions: parents (or other relatives) providing a lump sum toward the purchase of the family home, raising the question of whether that gives rise to a beneficial interest, particularly where they are not on the legal title.
• Property held in a third party’s name: for example, an investment property legally held by a relative but said to be held on behalf of one spouse.
• Loan vs gift disputes: money provided by a third party to help purchase a property, and whether it was a loan or a gift. These are generally argued as alternatives, not run together, as arguing both undermines credibility.
• Multi-generational living arrangements: elderly parents contributing financially (for example, to build a granny flat) with an expectation of being cared for, raising questions about what rights they retain if the marriage later breaks down. Contributions in these cases are also sometimes characterised as early inheritance rather than an interest-creating contribution.
• Foreign divorce, English property: where a foreign court declines to deal with English-based property, leaving the parties to bring TOLATA proceedings in the civil court, or Part III proceedings if dissatisfied with the foreign court’s award.

TOLATA and intervener claims of this kind have become increasingly common in family proceedings over the past 15 years.

Procedural steps for intervener claims

Joining vs intervening: who bears the burden

Oscar Smith: Third-party claims in matrimonial finance move you away from the Family Procedure Rules (FPR) and into the territory of the Civil Procedure Rules (CPR), which tend to be applied more strictly. Getting procedure right from the outset is a strategic advantage.

The procedural position depends on who you act for:

• If a spouse alleges the other spouse’s parents hold a beneficial interest for them, the parents are effectively defendants, and the alleging spouse is the claimant, even though the interest belongs to the other spouse, not to them. That spouse bears the burden of applying to join the third party to the financial remedy proceedings.
• Where a third party (for example, parents) themselves assert an interest, typically supported by one spouse, the onus falls on that party to join the third party or seek permission to intervene.

The TL v ML guidance

Oscar Smith: The guidance in TL v ML (Mostyn J) recommends dealing with the dispute as early as possible, ideally raising directions for joinder at the first appointment. From there, the case follows a broadly civil timetable: formal pleadings (particulars of claim and defence, not witness statements), followed by disclosure and witness statements.

Ideally, the preliminary issue should be heard before the FDR. Attempting to resolve a live third-party dispute at FDR is unhelpful, since the FDR judge cannot give a meaningful indication without having seen pleadings or witness statements.

Pinning down the other party’s position early

Oscar Smith: Third-party claims can sometimes be used tactically to create leverage in negotiations, with a claim being “held over” a client without being formally pursued. A short, clear letter early on is a valuable tactic to flush out genuine claims from pressure tactics. It should require the other party to commit to a clear position: is the third party’s interest being formally asserted, with lawyers instructed, or not?

Disclosure in TOLATA and intervener claims

Disclosure vs inspection

Guy Holland: Following pleadings, disclosure should come before witness statements. It’s a logical sequence that courts sometimes depart from, often in the name of saving costs. Interestingly, TL v ML itself makes no reference to disclosure, despite otherwise directing that these claims be treated as civil claims.

There are two distinct stages:

1. Disclosure: identifying that a document exists or existed.
2. Inspection: making that document available to the other side.

The obligation to disclose adverse documents

Guy Holland: Disclosure serves two purposes: to identify documents you intend to rely on and, the point most often overlooked in intervener cases, to disclose documents that are adverse to your own case, or that support another party’s case, regardless of whether you want to rely on them.

Skipping the disclosure stage and moving straight to witness statements (sometimes encouraged by courts to save costs) undermines this protective function, and frequently leads to undisclosed documents surfacing unhelpfully at trial.

Electronic communications and disclosure volume

Fiona Snowdon: Given how much happens informally between family members, such as spoken intentions or texts to a parent, how does disclosure capture that kind of material?

Guy Holland:WhatsApp and text messages have transformed disclosure. People now document conversations, including disputes over financial understanding or ownership, far more than they once did in writing. This creates real volume challenges. A client might be asked for years’ worth of messages, and the guiding principle is that only what is necessary should be disclosed. That means someone has to go through potentially hundreds of pages to identify the handful that are genuinely relevant, which is itself a costly exercise.

Consequences of non-disclosure

Guy Holland: Failing to disclose adverse material can be devastating to credibility. In one case, a husband revealed during cross-examination that he had kept a daily diary recording his understanding of the parties’ intentions, but had not disclosed it, claiming it was “confidential”. This allowed a submission that either the diary contained damaging material, or the husband could not be trusted as a witness, since if it had helped his case, he would surely have disclosed it.

Practical tip: Always obtain a court order for disclosure, and impress upon clients how seriously non-disclosure of adverse material can damage their credibility.

Using the N265 disclosure form

Guy Holland: The CPR includes form N265, requiring a party to set out what they have searched for, over what date range, and what they have not searched for or cannot access, supported by a disclosure statement or statement of truth. Even in family intervener cases, it’s worth inviting the court to direct use of this form. Some family judges will accept it, others won’t, but it helps ensure a thorough, demonstrable search (for example, specifying date ranges searched, and disclosing the existence of documents even where copies can no longer be accessed).

International cases and enforcing foreign judgments

Using TOLATA and Part 8 to enforce a foreign consent order

Oscar Smith: TOLATA and the CPR can be thought of as a toolkit, particularly useful where an overseas divorce has dealt with a couple’s assets but there is no straightforward enforcement method for English property. Many jurisdictions (for example, the UAE and Singapore) won’t make orders over foreign assets outright, but will do so by consent.

Where an overseas consent order sets out a clear agreement as to English property, that agreement can be treated as evidence of a common intention, capable of creating a trust over that property. A straightforward Part 8 claim (used where there is no dispute over beneficial interest, simply seeking an order for sale) can then be used to enforce that agreement. This is a far more streamlined and cost-effective route than a full pleaded claim, since it proceeds by witness statement rather than formal pleadings. Combined with an early Part 36 offer, it can bring strong cost-consequence leverage without the matter ever reaching a final hearing.

Foreign court-imposed outcomes

Oscar Smith: It’s a more open question whether TOLATA assists where a foreign court has simply imposed an outcome on the parties over English property, rather than the parties having reached and recorded their own agreement. In that scenario there’s no clear evidence of the parties’ own intention, which is what underpins a common intention trust.

Security for costs

Oscar Smith: Particularly post-Brexit, with more parties overseas, security for costs is a valuable CPR tool. It requires an overseas-based party to pay money into court to secure the other side’s costs if their claim fails, avoiding the difficulty of enforcing a costs order abroad. This is especially effective against low-merit “nuisance” claims, where an overseas party asserts an interest in an English property without a strong basis. Requiring them to place a bond with the court often deters the claim from proceeding at all.

Costs strategy: Part 36 vs Calderbank offers

Key differences

Guy Holland: Part 36 is not available in the Family Court, so it applies only to standalone TOLATA or civil claims, not to family intervener proceedings themselves. The two relevant CPR provisions are Part 44 (costs generally) and Part 36 (a self-contained procedural code for making offers, using the standard form N242A).

• Acceptance within 21 days: under a Part 36 offer, if accepted within the relevant period, the paying party automatically covers the other side’s costs to that date.
• Calderbank offers, by contrast, are typically a single global figure, which may or may not reference costs.
• At trial: if a defendant beats their own Calderbank offer, the court retains discretion (under Part 44) as to whether to depart from the normal costs order. If a defendant beats their own Part 36 offer, the court has far less discretion and must generally order the claimant to pay the defendant’s costs from that point, unless it would be unfair to do so.
• Claimant incentives: a Part 36 offer that is not accepted but is beaten at trial can carry a 10% uplift on damages (or costs, where damages aren’t the remedy).
• Late acceptance: if a Part 36 offer is accepted after the 21-day period, the accepting party generally pays the offering party’s costs from the end of that period until acceptance.

Tactical use

Guy Holland: As a general approach, use Part 36 to protect your position at trial (particularly as a defendant facing an exaggerated claim), and use Calderbank offers when genuinely trying to settle. A single global figure, without a specified costs element, tends to be psychologically easier for a defendant to accept than a Part 36 offer with an unknown, separately assessed costs liability. Both can be used at the same time, and can be made before proceedings are even issued.

The key practical takeaway: think about offers from the outset, particularly as a defendant. If a claimant succeeds but only to a minor degree (for example, claiming 50% of a property but being awarded 5%), the only realistic way to avoid paying the claimant’s full costs is to have made an offer earlier that they ought to have accepted.

Audience Q&A

Is there a presumption of advancement or gift from parent to child?

Hero Lomas: Is there a presumption of advancement or gift from parents to their children where there’s no other evidence?

Guy Holland: The presumption of advancement was intended to be abolished by the Equality Act 2010, but the relevant section has never been brought into force, so it technically continues to exist, and applies equally from mothers and fathers. It is, however, a very weak presumption, and few cases are actually decided on it, since judges generally hear evidence from both sides and reach a conclusion on the facts rather than falling back on the presumption.

Should the N265 form be used even if not specifically ordered?

Hero Lomas: If an order for disclosure doesn’t specify use of the N265 form, is it still best practice to use it for completeness?

Guy Holland: Yes. The N265 form usefully tabulates what has and hasn’t been disclosed, and identifies documents you’re not prepared to provide copies of and why. There’s no reason not to use it, and it captures all the information disclosure should properly include.