Karen Walsh: I just inherited my uncle's farm - will divorce mean I'll have to sell?
Farm separation - mother and son
Dear reader,Â
The law in relation to Family Law and divorce in Ireland is predominantly contained in the Judicial Separation and Family Law Reform Act 1989, The Family Law Act 1995 and the Family Law (Divorce) Act 1996 and the Family Law Act 2019.
Previous to the 2019 Act, spouses had to be living apart for four of the previous five years in order to qualify for a divorce.
This was amended in the 2019 Act and the period is now reduced to two of the previous three years.
Spouses living in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that whilst living in the same dwelling they do not live together as a couple in an intimate and committed relationship.
The law in Ireland is that the court must ensure that proper provisions are made for both parties and the children.
In order for “Proper Provision” to be made for a spouse or children, the court may need to make a number of orders, including the following:
- A Property Adjustment Order
- An Order that maintenance has to be paid in respect of the children or spousal maintenance.
- An Order that a lump sum payment has to be made to one of the parties.
- A Pension adjustment order that one of the parties has entitlements in respect of the other’s pension Under Irish Law, the court has a number of powers to potentially transfer or sell assets under Judicial Separation and Divorce.
This is known as a Property Adjustment Order. Normally, in Family Law matters, both parties are obliged to file with the court a document that is known as an Affidavit of Means, which sets out all of their assets, liabilities and income, and the court makes provisions based on the means of the parties and the circumstances.
A typical example is a court may order that the spouse who has primary custody of the children while the children remain dependent remains in the family home, and the property is sold once the children are no longer dependent. A dependent child is one who is under the age of 18, or 23 or if in full-time education.
Before considering making a Property Adjustment Order, the court will consider a number of factors such as:
- Succession rights may need to be considered and as to whether the dependent children are in interested in assets being transferred to them.
- As to whether the parties have contributed to acquiring the assets such as contributing to mortgage payments.
- The value of the assets is significant and the court would have to consider as to whether it is feasible to order the sale of the asset. It may not be practical to sell, transfer or subdivide an asset such as a farm for various reasons such it may affect the viability of a business or one of the parties’ livelihoods.
- The court will also consider as to what both parties contributed to the running of the farm and as to whether their incomes are primarily dependent on this.
The courts would be reluctant to force a sale of the farm unless there are no other assets, especially if the farm is viable.
Email: Â info@walshandpartners.ieÂ
- While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.
