Karen Walsh: In marital or relationship breakdown, a court may not treat a farm as a typical asset

It is important that farmers and their families are aware of their legal rights in the event of marital or relationship breakdown.

Karen Walsh: In marital or relationship breakdown, a court may not treat a farm as a typical asset

It is important that farmers and their families are aware of their legal rights in the event of marital or relationship breakdown.

When a marriage breaks down, there are a number of legal options to be considered, such as separation agreements, judicial separation, divorce, custody and access to children, and maintenance.

Persons who are not married but qualify as cohabitants also have legal rights, under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

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.

In a separation agreement, both parties reach a formal agreement in relation to matters such as maintenance, access to children, the family home, farm and division of the assets, without issuing court proceedings.

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.

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.

Judicial separation only requires one year living apart.

One of the key issues the parties have to consider when entering into a separation or divorce is the division of assets.

This is particularly pertinent to farmers, who may have concerns about their farm being sold or divided up.

For farmers, their two main assets will normally be the family home and the farm. The family home will not always adjoin with the farm, but this is often the case.

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 the consent of both spouses.

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

This is known as a property adjustment order.

The court, when making such an order, must ensure that proper provision is made for both parties and children.

In order for “proper provision” to be made for a spouse and children, the only option may be that the lands are sold in order to raise capital for the purchase of an alternative home for the spouse and children.

Proper provision will vary from case to case, 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.

A dependent child is one who is under the age of 18, or 23 if in full time education.

The court will normally consider all assets of the parties when making proper provision for the parties, by making a property adjustment order.

However, a farm is not a typical asset, and before considering to make an order for sale or division of a farm, a court would have to be aware of a number of factors such as:

Farms are often inherited and kept within families for generations, and sometimes the ownership can be shared with parents or siblings, which may prevent an order for sale or division.

Succession rights may need to be considered, and whether there are dependent children interested in farming.

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. This may make an order for division of the land unfeasible.

Attention also needs to be given to the seasonal nature of farming, and the fact that EU farm subsidies form a significant portion of many farm incomes.

If it is ordered that the land is sold or transferred, are the parties affected losing a significant stream of income?

n Have both parties contributed to the running of the farm, and are their incomes primarily dependent on this?

In the event of a marital breakdown, it is advisable that farmers and their spouses should take legal advice early on from a solicitor, given the stakes are quite high if they want to ensure that the farm is protected, and both parties and the children are adequately provided for.

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