Old MacDonald Had a Farm … But What if his Marriage Breaks Down?

30 November 2016

Clare Curran, head of the Matrimonial Department here at Worthingtons Solicitors, looks at the issues surrounding farms on divorce

Old MacDonald Had a Farm … But What if his Marriage Breaks Down?

If one or both parties to a marriage owns or has an interest in a farm, a number of factors need to be considered in resolving its ownership after a marriage breakdown.  Sorting out ownership of the farm needs to be done in conjunction with any other assets or debts pertaining to the marriage.

If you own, or have an inherited a farm, you will no doubt be concerned about how best to preserve it and your future livelihood.  If you are the spouse of a farmer, you are likely to be concerned about what will happen to you should you decide your marriage is over.

It is often the case that farms don’t generate huge incomes but are valuable because of the property or size of land attached; they are often inherited which means that they are viewed by the family courts as ‘non-matrimonial’ assets, that is not to say that they are excluded from the pot of assets to be shared between the parties, but that they are viewed differently to a matrimonial asset, such as a family home which is bought by a couple from their joint income or savings, for example.  There may be wider ownership issues, with other family members retaining an interest, or boundary/ right of way issues across the land.  They may be a lack of liquidity meaning that borrowing money against the farm may not be an option or there may be complications arising from farming tenancies or trusts.

It is usual in farming cases, for the farm to be valued as part of the exchange of financial information, known as ‘financial disclosure.’  This can be done by both parties agreeing to engage a joint expert.  It is best to do this after having sought legal advice and agreeing the terms of the instruction to the expert through your solicitors. 

Once the relevant information about the value of the farm and the income it generates has been ascertained and exchanged, it will be up to the lawyers to assist you both in negotiating a settlement of all your finances.  Failure to reach an agreement may result in an application to the court having to issue which can be an expensive and time consuming process. 

The court will generally be reluctant to enforce the sale of a farm, unless that is the only way to achieve a fair outcome for both parties.  More often, cases are resolved by one party raising capital to pay to the other for housing purposes, perhaps by selling off part of the land or mortgaging the property, or by giving a larger proportion of any other assets such as savings/ investments or pensions.  The primary concern of the court will be the welfare of any minor children and ensuring that their housing needs will be met. 

Our specialist advisors in our family law team can assist you with any queries you may have in this regard and can be contacted by email on familylaw@worthingtonslaw.co.uk or telephone the office to discuss on 028 91811538.

 

 

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