FAQs – What might happen to the family farm if we divorce?
The breakdown of a relationship can be an upsetting and difficult time for all involved. Associate Solicitor Victoria Cobham (née Strode) discusses the issues surrounding a divorce where a family farm is involved and how it can be particularly challenging, where the way of life will often have been passed down through the generations, and with family and business lives merging into one.
When couples divorce after a long marriage, all assets are placed into one ‘matrimonial pot’. The assets are then divided so as to achieve equality; this can include the family farm. The Court will consider the need to rehouse both parties and when there are children involved this will be the Court’s primary consideration.
In the event of divorce, farms can raise more complexity than other assets, for example:-
• Farms are often inherited and land and/or the business itself can be owned by various members of a family. As such, there can be other parties’ rights and interests to consider;
• Many farmers will want the asset to be retained because it generates their income. It may also still provide an income for older generations;
• Farming families can often be asset rich and cash/income poor which can cause liquidity issues;
• If a farm was owned by one party prior to the marriage, there could be arguments for ‘non-matrimonial’ property to be excluded from any settlement;
• Tax implications.
It is usually advantageous to come to constructive solutions without recourse to the Court and/or the farm being sold. If parties are able to do this with the benefit of legal advice, then the complexity of the farm can be considered and flexible solutions can be reached.
In farming cases, trying to strike a balance between retaining the family farm and meeting the needs of both parties can be difficult. Many of these issues can be prevented if the parties enter into a pre-nuptial agreement before they get married or, if already married, a post-nuptial agreement. The agreements create the opportunity to discuss what would happen to the family farm in the event of separation and can be very persuasive so as to prevent lengthy solicitor negotiations or Court proceedings at a later date.
If you’d like more information or advice on creating pre or post-nuptial agreements or any issues within this blog contact our Family team on 01749 342323.