Balance is needed on farm break-ups
Selling the land as part of a legal family settlement should be avoided if possible
Published 05/01/2010 | 05:00
A friend of mine worries a lot about his farm. "John", he used to say, "you walk up that wedding aisle with 100ac and you come back down with 50."
But walk up and down the aisle he did -- eventually. Nowadays, 30-odd years after his own wedding, his big concern is about the buckos making shapes around his daughter, who is in line to take over the family farm. If he had his way he would like to have the Irish divorce referendum re-run and the outcome reversed next time around. He is in favour of a pre-nuptial agreement if it protects the farm.
His concern is shared by practically every land and property owner in the country. But, sadly, marriage breakdown happens. Having to sell a farm that has been in the family for generations in order to fund a court divorce or separation settlement is devastating. I have seen elderly couples who toiled on the family farm all their lives. They transferred the farm to a son as a marriage settlement, thinking they were doing the right thing. After a few years the new daughter- in-law upped and left with every intention of taking some of the farm with her.
I know that the faults in marriage breakdowns are rarely all on one side and the person marrying in has rights too. But should they have a right to break up a farm that may have been in a family for generations after only a short stay?
That farm represents the earning capacity of the farming son or daughter. It is akin to the professional qualification of a plumber, a doctor or an accountant or the job security of a civil or public servant. If one of these professionals is involved in a separation agreement, their professional qualification is not confiscated. Equally, a civil servant does not lose the right of the job and guaranteed pension on a marriage break-up.
A similar balance should be applied when the separation divvy-up is taking place after a farm marriage split. Assess the earning capacity of the farm; assess the input to the farm from the departing spouse; assess the independent income of the parting spouse, which is often a lot higher than the farm income. Then make a court settlement. That is assuming the case cannot be settled outside the court.
Some of the more recent court judgements to parties in marriage separations/divorces indicate that the balance may be swinging slightly back towards the farmer. Maybe in the future less farms will be broken up because of marriage breakdowns. Uniquely, in Ireland pre-nuptial agreements are not legally enforceable, but I am told that some judges are taking note of pre-nuptial documents when making their decisions. Maybe my friend mentioned at the start of the article can breathe a little easier.
It has been suggested that the absence of legal standing for pre-nuptial agreements was a sop to the Catholic Church when divorce legislation was introduced, since giving credence to such deals would have been seen to further undermine the institution of marriage.