Protecting your family farm against the impact of relationship breakdown

Farming is usually a family affair. Many farms are passed down through the generations with family members devoting years of their lives to working hard to ensure that the farming business is there for future generations.

Relationship breakdowns can be traumatic for any family but when there is a divorce or separation in a farming family it is particularly difficult as the farm is invariably not only the family business but also the family home and a division of assets can be devastating for the wider family.

Ownership of the family is often an added complicating factor in any divorce; the family farm may be owned by the older generation or ownership may have been transferred to a family company or partnership or to a son or daughter but with parents still depending on an income from the farm business. Reaching a divorce settlement is therefore not at all straightforward and in a worst-case scenario part of the family farm may have to be sold to achieve a financial settlement.

If a family own a farm and want to protect it from divorce claims then they should consider a nuptial agreement; this is a legal agreement between married couples or civil partners that lays down in writing how any future divorce financial settlement will be dealt with. This agreement will also give wider protection for the whole farm business in the event of one of the partners divorcing.

Individuals who live together but do not plan to marry can enter into a cohabitation agreement to record what should happen should they decide to separate.

The parties to a nuptial agreement cannot override the court's broad discretion but when considering an application for financial remedy a court must give appropriate weight to it with the presumption being that an agreement should generally be allowed to stand unless the court is persuaded otherwise. One of the factors that the court will take into account when assessing whether the agreement is fair, is whether the parties have legal advice from separate lawyers before the agreement is made.

Prenuptial and postnuptial agreements are a valuable tool for farming families looking to pass assets on to the next generation to secure the future of the family farm in the event of divorce. Farming families should also ensure that they have partnership or shareholder agreements in place and that consideration is given to drawing up a ‘family charter’ so that the business and the family is properly protected.

Having a discussion about what can be a difficult subject for many to broach and getting an agreement drawn up by an expert family law solicitor can help to avoid a forced sale of assets which might threaten the viability of a farming business later down the line.

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For more information on prenuptial or postnuptial agreements or any other family law matter, please contact us today.