Divorce property adjustment order particularly important if you are a farmer

In the recent elections, the referendum on the Thirty-Eighth amendment of the Constitution (dissolution of marriage) Bill 2016 passed, which paves the way for the Government to legislate for a shorter period of separation between spouses before applying for divorce.

The present law is that a couple can only apply for divorce if they had been living apart for four of the last five years.

The Government will now pass legislation to reduce the period to two years.

The law in respect of marital breakdown is primarily set out in the Judicial Separation and Family Law Reform Act 1989; the Family Law Act, 1995; and the Family Law Divorce) Act 1996.

If you are not married, you may qualify as cohabitants, and would also have similar legal rights to separation and divorce, under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

In the event of a marital or relationship breakdown, there are a number of legal options that you may pursue, including the following.

  • A separation agreement, where both parties reach an agreement, normally signed and in writing, in relation to matters such as maintenance, access to children, the family home, farm, and division of the assets, without issuing court proceedings.
  • Judicial separation: where spouses cannot agree the terms of the separation, or where only one spouse seeks a separation, an application for a decree of judicial separation can be made to court. Judicial separation only requires one year living apart.
  • Divorce: a decree of divorce dissolves a marriage and allows both parties to remarry.

But in order to qualify for this at the date of the institution of the proceedings, the spouses must have lived apart for four years during the previous five years.

But this will soon be reduced to two years.

In a divorce, the court can make a number of orders but, when making such orders, must ensure that proper provision is made for both parties and children.

This is of particular importance when assets are being divided.

The court has the power to transfer or sell assets under a judicial separation or divorce.

This is known as a property adjustment order.

This is of particular importance if you are a farmer, who may have concerns about their farm being sold or divided up, which may lead to the farm or enterprise no longer being a viable business, or which may impact on planning of succession to the next generation.

If you are a farmer, the two main assets would normally be the family home and the farm.

It is very common that the family home will adjoin with the farm or be on the farm.

The “family home” is defined under the Family Home Protection Act, 1976 as “primarily, a dwelling in which a married couple ordinarily reside”, and the family home cannot be sold without both spouses’ consent.

Even if the family home is in the name of one spouse, the consent of the non-owning spouse is still required for a sale.

The court will need to make proper provision, and the court will take into consideration a number of factors, such as both parties’ financial means, and the needs of the children.

The children’s needs will only be considered whilst they are classified as a dependent, which is when they are under the age of 18, or 23 if in full-time education.

Before dividing the assets, the court may consider the following factors:

  • The value of farmland is usually significant, compared to the income generated from it. A smaller holding will not usually be viable and capable of providing an income; and accordingly, an order for division of the land may not be feasible.
  • Whether both parties have contributed to the day-to-day running of the farm.
  • Succession rights may need to be considered, and whether there are dependent children interested in farming.
  • Whether one of the parties will lose their income or livelihood, if the lands are sold.
  • Will the parties lose out on EU or Department of Agriculture subsidies or grants if there is a division of assets?
  • Where will the dependent children reside, if assets are sold, including the family home?

In the event of a marital breakdown, it is advisable that farmers and their spouses should take legal advice from a solicitor in order to ensure that the farm is protected, and both parties and the children are adequately provided for.

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

Email: info@walshandpartners.ie

Web: www.walshandpartners.ie

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