Farmers Weekly’s Business expert Peter Cusick on how to approach farm asset division after a divorce.
Q I am a farmer and my wife has left me after 35 years of marriage. I have two sons, one would like to become a farmer.
The land, property and farming equipment are the only assets of the farm. I have had some advice to say that my wife may have a claim over the farm, which has been in my family for hundreds of years. How do I avoid having to sell the farm so that my sons and I can continue to farm now and in the future?
A This is a common question that arises in relation to farming businesses. Often a farm is an inherited asset which has been in one partner’s family for many years.
The intention is that it remains intact to be passed on within the family. Unfortunately, on divorce, the future of a farm can be called into question.
Head of agriculture and food
How the farm is dealt with will depend on the circumstances of the case. In some cases, the fact that the farm was inherited will count for very little, while in others, it will be a significant consideration.
The court may make a distinction between a situation where there is a monetary legacy that has accrued during the marriage and a situation where there is a landed estate (such as a farm) that has been within one spouse’s family for generations and has been brought into the marriage with an expectation that it would be retained for future generations. However, this will all depend on what is fair in the circumstances.
In determining what is fair and whether recourse will need to be made to the farm to provide a fair outcome for the parties, the court will have regard to a number of factors, including whether the other spouse’s needs can be met using other assets.
If there are no other assets which can provide for their needs, then it is more likely that the farm will need to be divided up or sold.
However, there is always the option of reaching an agreement with your spouse regarding how your assets will be split.
In this scenario, it would be possible to agree that the farm will not be divided up or sold, so long as sufficient provision is made for the spouse who will not be retaining the farm and the overall assets are split fairly.
Farm owners entering marriage or who are already married can help to protect their farms against claims being made by their spouses by entering into a pre-nuptial or post-nuptial agreement.
Although not legally binding, significant weight has been attached to these types of agreements in recent cases. If a dispute arises in the future, these agreements provide evidence that both parties are aware of the other’s financial position and they also demonstrate the parties’ intention to protect certain assets.
The information provided in these articles does not constitute definitive professional advice and is provided for general information purposes only.
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