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Divorce and the Family Farm Divorce and the Family Farm

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Jan 14

Divorce and the Family Farm

Written by Carmelita Ardren
Head of Family, Children and Divorce

DDI: 01423 724 639
M: 07854 312652
E: carmelita.ardren@raworths.co.uk

Splitting up the Farm – how Divorce can impact on Farm Viability

According to the Office of National Statistics, 42% of all marriages end in divorce.  Farmers are certainly not immune to this; long hours, stress, financial worries, and red tape all contribute to the added strain on personal relationships.

What Makes Farming Divorces Different?

Farms are generally inherited assets, acquired and added to, passing through generations making them in principle ‘non-matrimonial’ assets.  Often spouses are partners or otherwise involved in the farming business.  There are few other occupations where home and work are so interrelated involving wider family members and their vested interests.  Income light and capital heavy, farms present a unique set of difficulties when matrimonial problems strike, particularly where the Court has to deal with the prospect of separating one household into two to satisfy the changing needs of the family and any dependent children.  Fairness and meeting the parties’ needs is the ultimate goal but farming divorces require especial care and an experienced legal hand.

Will The Farm Have To Be Valued?

Usually, yes.  There may be recent valuations carried out for other purposes that could suffice, but a single joint expert experienced in farming and rural matters will normally be the best option to provide a valuation.  You will have to give a clear picture of the extent of the farm, including maps, properties, title deeds, partnership agreements, trust documents, mortgages and loans.  You will also be asked to provide information about accounts allowances and quotas; this will save you legal costs later on.

Will my spouse get half?

That depends on your particular circumstances.  Equality has been a cross check for matrimonial settlements for a number of years but farming cases merit special consideration.  Issues that could affect the final division include;

  • How the farm was acquired? If it has been handed down through the generations and is to 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 or others may have a stake in the farm. The Court will try and avoid any action that will impact upon a third party.
  • How long is the marriage? Short marriages would tend to indicate no sale but that is dependent on the other factors.
  • How were the assets treated during the marriage? Were they pooled or kept very separate? Pooling leans towards sharing the asset.
  • Are there any trust instruments? Is the farm held in trust for one of a number of beneficiaries or for future generations? If so, this is a crucial factor.
  • Were there any agreements entered into before or since the marriage?
  • Do you own a share of the farming business?
  • Are there any liquid assets in the farm? Could a spouse’s needs be met by a sale of part of the farm that would not harm core activity?

What Can I Do To Protect My Farm?

If you are not yet married, always consider a Pre-Nuptial Agreement.  These can be tricky to negotiate but provide evidence of what is intended from a financial point of view from the outset, and the Court will have high regard to one that is clear and made with expert advice and full information. Even if you are married, you can still enter into a Post-Nuptial Agreement, although these are uncommon and no doubt raise more questions with your spouse than answers.

I don’t want to end up in Court, what are the alternatives?

Farms are normally family concerns and, as such, consider using mediation and collaborative law to resolve disputes.   These options can keep you out of Court, offering creative, flexible and cost-effective solutions while enabling you to retain some control over the ultimate conclusion.

Carmelita Ardren is a partner, head of Raworths’ Family Law, a collaborative lawyer and an advanced member of the Law Society Family Law Panel. To contact Raworths telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate, HG1 1HF. Alternatively, email carmelita.ardren@raworths.co.uk.

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