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Farming divorces: How do you protect a farm during divorce?
Farms and farming land are valuable assets that you and your family have invested a lot of time in. So, it’s important you protect them – whether that’s when you’re entering a new relationship or simply so that your children can benefit from your years of hard work.
Farming prenups and divorce settlements
When you meet that special person and start to daydream of your life ahead, it’s a complete romance killer to think about the practical financial arrangements. But in order avoid heartache, stress and costs down the line, you must do so. If you have generational plans for land or a farm, ensuring you have the right plan in place and a legal agreement is essential.
Whether it be prior to marriage through a prenuptial agreement or post marriage through a divorce settlement, setting out the awkward issues in writing will save you in the long run.
If I had a £1 for every time a client over the years has quoted to me a complete myth such as “It was mine before I met my spouse so they don’t have any claim, do they” or “I jointly own the asset with family so my spouse can’t claim, can they”, I would be a very rich man.
The truth is whether you are married for five years or twenty years, the court has a duty to consider how the parties needs can be met moving forward. Whether your farming assets are acquired pre marriage or during marriage, the court can make orders against any type of asset to meet needs if it deems it appropriate and just.
If you have children, then it goes without saying that their needs take priority and the court is going to be more inclined to make orders against pre marriage assets to meet the needs of the parties if children are involved.
Best way to separate farm in a divorce
If you have plans to pass the farm/partnership or land on to the next generation, and want to ensure as far as possible that the assets are not dissipated in a divorce, you need to do the following;
- Take advice on estate planning from a private client solicitor or farming divorce lawyers
- If contemplating marriage or already married, enter into a nuptial agreement to regulate your financial settlement in the event of separation
- Plan for, and ensure as far as possible, that the nuptial agreement ensures needs are met
Nuptial agreements are not legally binding on the courts in the UK, but if entered into correctly, meeting a certain criterion, are extremely persuasive. The key is to ensure the agreement is fair, and needs are met.
It’s no good having a “I get everything and you get nothing”, arrangement, as unless the other person already has pre-marital assets that will meet needs, after say a 20 year marriage and children, no court is going to agree that is “fair”. Proper advice and a carefully constructed nuptial agreement can ensure you keep your generational succession plans intact.
Contact Greg Cross, Director in the Family Law team at Crombie Wilkinson Solicitors for advice on 01653 600070.
