What happens to the farm when a marriage breaks down?
Legal advise is the best option when a marriage breaks down. Picture: iStock.
Recently there was a case in the court of appeal where a separated farmer who had his farm valued at €1.1m had to pay his estranged wife €1,600 per month in spousal maintenance.
This matter was appealed from the High Court to the Circuit Court and the High Court had originally ordered that the farmer had to pay a lump sum payment of €120,000 and €1,200 monthly maintenance for the children until the dependency ceased which it had at the time of the appeal.
He also had to pay their educational costs including third-level costs and their private health insurance.
The woman had completed her leaving certificate and was employed prior to the marriage but during the marriage had carried out farm work and was a full-time homemaker and did sporadic work.
The couple separated in 2014 and the mother and children remained in the family home while the husband lived nearby.
In May 2015 he gave a €200,000 lump sum payment in order that she could buy a new house.
The Court of Appeal ruled that the High Court had erred in the provisions for the wife in excess of the 30% of the net assets and that this was a fair and equitable distribution of the assets, and that they also erred in overestimating the future likely earning capacity of the wife given her age, employment history and lack of qualifications of earning an income and being self employed and self sufficient within four years of the date of judgement.
The legal position in respect of providing for the parties in marital breakdown is that proper provision has to be made.
Section 16 of the Judicial Separation Family Law Reform Act and Section 20 of the Family Law Divorce Act 1996 state the court shall ensure such provision as the courts consider proper having regard to the circumstances that exist will be made for the spouse and any dependent member of the family concerned.
There are a number of factors which they will consider including income earning capacity, financial needs of the parties, standard of living of the parties prior to the proceedings being instituted, and any conduct and accommodation needs of the spouses.
The court under Family Law Legislation has powers to make a number of orders including a Property Adjustment Order, a Pension Adjustment Order, an order for payment of a lump sum and orders for spousal and maintenance of the children.
Typically, before such orders are made, the courts consider all the circumstances including the financial circumstances of the parties.
There is no legal position that a spouse is entitled to a certain percentage of assets or income and it entirely depends on the facts of each case.
Typically, if one spouse has acted to their detriment that he or she has contributed considerably to the other party's income, the court will factor this.
A Property Adjustment Order is an order where the court can order that an asset of one of the parties is sold or transferred to the other party.
Typically, courts will be reluctant to remove the party that has primary custody of the children from the family home.
The typical order would be that the family home would either be transferred to the spouse who has custody or that it would remain in joint names while the children remain dependent which is either 18, or 23 years if they remain in full time education, and that the property would then be sold and the proceeds would be split 50/50.
In respect of a farm, a court is usually reluctant to make an order that a farm is to be sold if it is the livelihood for one of the parties but the court will have to make a provision for the other party.
The typical way that this could be done is that a lump sum payment might need to be made to one of the parties and maintenance payments in respect of spousal or maintenance for the children.
If you have been involved in a marital breakdown and there are assets involved, it is advisable that you get the advice of a solicitor.
- Stephen Coppinger is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork.
