Back

Family Farm and Divorce

What makes Farming Divorces Different?

42% of all marriages end in divorce (according to the office of national statistics) and farmers are certainly not immune to this. Often the lifestyle and work that is involved in farming includes long hours, stress, financial worries all contribute to the added strain on their personal relationship.

farm_house.jpg

There are few other occupations where home and work are inter related and often involve wider family members and their vested interest.

Farms are generally inherited assets. They are added to as they pass through generations and often spouses are partners in the family business or are otherwise involved in the farming business.

A farming case can often therefore involve the majority of the assets being inherited assets and in principle “non matrimonial” assets. They are often income light and capital heavy and they present a unique set of difficulties when matrimonial problems occur, particularly where the Court has to deal with the prospect of separating one household into two and thereby satisfy the changing needs of the family and any dependent children.

The goal for the Court is the ultimate fairness and meeting the party’s needs but farming cases are unique and therefore require specialist legal experience to handle them.

Will my Spouse get half?

That depends on the circumstances of the case but equality certainly has to be a cross check for matrimonial settlement but farming cases do merit special consideration. Issues that could affect the final division include:-

  • How the farm was acquired, for example, if it has been handed down through the generations and the intention is that it should be preserved for the next generations then the Court may order a sale only as a last resort.

  • Who else owns a share? Parents, brothers, sisters may have a stake in the farm and the Court would try and avoid any action that may impact on a third party. In additional of course the third party may seek to intervene in any matrimonial proceedings that are under way that would affect the farm.

  • How long is the marriage? Courts are under a duty to consider the length of the marriage as short marriages often tend to indicate no sale but that would be dependent on the other factors.

  • How were the assets treated by the parties during the marriage? I.e. were they a joint investment or were they kept very separate.

  • Are there any trust instruments that the Courts should be aware of, i.e. is the farm held in trust for one or a number of beneficiaries or future generations? If so this can be a crucial factor.

  • Were there any agreements entered into before or since the marriage? I.e. do the parties have a benefit of either a pre nuptial or post nuptial agreement?

How can you protect your position?

It is a necessary consideration to consider a pre nuptial agreement if you are not yet married. These can be tricky to negotiate but provided they are prepared in accordance with current guidelines and with legal assistance they can provide evidence of what is intended from a financial point of view from the outset of the marriage and the Court will have high regard to a pre nuptial agreement that is clearly made with expert advice and full information given. Indeed even if you are married you can still enter into a post nuptial agreement and although these are uncommon they add a layer of protection if made in accordance with expert legal advice in the event of any potential divorce.

Other considerations

Farms are normally family concerns and therefore litigation via a Court process may not be the most productive way forward. Parties are always urged to consider using mediation or collaborative law as a way of resolving disputes. These options can often keep people out of Court and offer a flexible and cost effective solution while enabling the parties to retain some control over the ultimate conclusion.