Farm Legal Advice: Is my farm at risk if I separate from my wife?
It should be noted that being a director of a company does not necessarily constitute ownership of a company and the shareholders will be separate.
Dear Reader
Thank you for your query and I note you have indicated your wife is a director of the company. However, I am not clear as to whether your wife has shares in the company. It should be noted that being a director of a company does not necessarily constitute ownership of a company and the shareholders will be separate. If your spouse is a director it would not necessarily mean she has ownership or shares in the company or business.
I note the position you potentially are going to live separately and your options would be set out in the Judicial Separation and Family Law Reform Act 1989, Family Law Act 1995 and the Family Law (Divorce) Act 1996 and the Family Law Act 2019.
Since 2019, couples have to be living apart two of the previous three years in order to potentially qualify for divorce. The other ground for seeking divorce in Ireland is that you have to be domiciled in Ireland and there must be no prospect of reconciliation.
Under Irish law, the courts have powers to potentially transfer or sell assets under judicial separation and divorce. This is known as a Property Adjustment Order.
Typically, in a family law case, both parties have to file a document known as an Affidavit of Means, which sets out all their assets, liabilities and income, and the court may make provision based on the means of the parties in the circumstances.
The law in Ireland states that proper provision is made for both the parties and also for 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 a Property Adjustment Order.
Before considering making a Property Adjustment Order, the court would consider factors such as:
- Succession rights and as to whether dependent children are interested in assets being transferred to them. This could apply to a family farm, particularly if you have a child who is potentially interested in farming in the future;
- Whether the parties have contributed to acquiring the assets such as, for example, making contributions to loan or mortgage payments. This would certainly be pertinent in respect of a family farm and I note what you have stated regarding as to how your wife has assisted you and this would be factored in by a court;
- The court would look at the feasibility regarding selling and transferring assets and it would certainly factor in that the farm is your livelihood and there may be a reluctance to order that the farm is transferred or sold. The court would look at the means of the parties and would find the best way to make proper provision in the circumstances.
Courts can also order lump sum payments to one of the parties and an order for maintenance can also be made as well as a Property Adjustment Order.
In respect of the company and the business, the court may consider that it might not be practical for both parties to continue running the business together and may order it is transferred from one party to the other.
However, this would depend on the structure of the business and whether both parties have ownership of the business. Again, the court would have to factor in the means of the parties before making appropriate orders.
I would advise that you get legal advice and input from an accountant before proceeding further.
Email: info@walshandpartners.ie
- Disclaimer: While every care is taken to ensure the accuracy of the information contained in this article, solicitor Stephen Coppinger does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.
