Divorce can be devastating but the consequences can be even more difficult where there is a farm and particularly, one which has passed through generations and is owned by several family members.
There will be concerns about what will happen – will the whole or part of the farm have to be sold to fund a financial settlement? Can any development potential be released? Will profitability be affected by the outcome?
No-one likes to think about their new relationship breaking down and while planning for divorce may seem unromantic, it is possible to enter into an agreement which stipulates what should happen financially if a relationship ends. This can help to protect the family farm from the consequences of divorce and avoid a messy and expensive dispute later on.
Couples planning to marry may enter into a Pre-Nuptial Agreement (or a Pre-Civil Partnership Agreement in the case of a forthcoming civil partnership) stating how their assets and income should be divided on separation. While not currently binding on the courts, recent cases illustrate that such an agreement is likely to be upheld provided the parties have entered into it freely (and at least 28 days before the wedding), they have fully disclosed their financial circumstances, appreciate the implications of the Agreement and its terms are fair and do not prejudice the reasonable needs of any children.
The courts still retain discretion to make financial orders on divorce but a Pre-Nuptial Agreement will be taken into account in all of the circumstances of the case and in the right case, will carry decisive weight when the court is determining the asset distribution.
It is far better for a couple to decide on what their financial settlement should be, particularly when the major asset is not only their home but their business, and a Pre-Nuptial Agreement is the best tool available for this. It can be an effective way to assist with succession planning and keeping the farm in the family should a divorce occur.
Jayne Turner is a Partner at Ashfords LLP and is highly experienced at dealing with farms on divorce. She is a Resolution Accredited Specialist in Complex Financial Remedies and Pensions on Divorce, an Advanced Member of the Law Society’s Family Law Panel and an experienced Collaborative Lawyer.