Friday 9 December 2016

Pre-nuptial Agreements: Anger at the auction as the family farm goes up for sale

Published 24/01/2012 | 06:00

As the auctioneer opened the floor for bidding, the farmer whose land was being sold suddenly jumped up from the crowd.

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"This is my land, the farm that I have worked on for all my life and the farm that my father and grandfather before me worked on," he cried to the assembled audience.

Bristling with rage at being forced to sell his land, he announced that anyone who bid would "never have any luck for it".

From the back of the room, his family silently filed one-by-one into the salesroom to eyeball prospective buyers who deigned to place a bid on the land.

While the scene might resemble something from John B Keane's The Field, it reflects a much more modern scenario in which a farmer is forced to sell part of his farm to make a cash settlement to his former wife.

Another scenario: the farmer's family attempts to disrupt the auction proceedings by periodically standing up to tell the audience that the farm is a forced sale and their bids are breaking up a family.

The Irish attachment -- some would call it obsession -- with land ownership is well known.

Many observers believe that the Irish need to own acres is a hangover from the mass evictions of Irish people by English landlords during the Famine.

Others, however, believe that our cultural attachment to land is much deeper and can be compared to the Aborigine or Native American cultures, in which land is believed to be fundamental to the individual's well being.

Whatever its origin, however, it is clear that land still holds a unique place in the hearts and minds of Irish farmers in 2012.

Ever since divorce was legalised in 1996, farmers have feared that their inheritance and livelihood could be taken from them in a divorce settlement.

The fact that family law cases are often held in camera has resulted in a plethora of rural myths, including every farmer's ultimate fear -- that his wife could walk away with half his farm soon after walking down the aisle.

However, the judge's mandate in a family farm break-up is simply to ensure that the spouse and children are "adequately provided for" and nowhere in Irish law is there a 50:50 rule for division of assets.

In some cases, "adequate provision" could mean a cash settlement, the family home, land or, depending on circumstances, all three.

The terms of each divorce settlement are specific to the individual's circumstances and will take into account the length of marriage, children, farm viability and many more criteria.

Yet as one solicitor put it: "Sentimentality and judges are not close relations" and in cases where the farm is not a viable business turning a profit, the judge can be quick to part the farmer from his sentiment. This fear of losing land that has been in their family for generations through divorce has paralysed hundreds, even thousands, of farmers across Ireland and delayed farm transfers to younger farmers.

As Irish Farmers Association (IFA) business chairman James Kane explains, farmers suffer stress, anxiety, feelings of inadequacy and even suicidal tendencies in the aftermath of a marriage break-up.

"Aside from their feelings of despair at the loss of their marriage, they worry about having to sell land, how to run the farm if they have to move into the nearest town, how to provide an income for their children and their parents," he says.

"Fear of losing the farm is one of the reasons why land mobility -- the transfer of land from one generation to the next -- is so slow in Ireland," he explains.

"Parents are terrified of signing over the farm to their sons and daughters in case the farm might be lost."

Such fears are not entirely without foundation, he warns, adding that selling just part of a farm could render it economically unviable.

Traditionally, the young farmer who took over the farm would look after his parents in their old age, taking financial responsibility for their care.

However, marriage breakdown could affect his ability to afford expensive nursing home fees and other costs.

"I would advise parents to protect themselves into their old age by keeping the family home or a portion of the land," says the IFA man.

"It's an insurance policy in case everything does not turn out hunky-dory."

Mary McGreal of the Irish Countrywomens Association (ICA) says the issue of break-ups on farms is a source of major worry for the older generation.

"Parents are worried about break-ups and what might happen down the road, especially if the farm could be sold," she says.

"They have a strong love for the land and a special tie to their family farm but at the same time, they don't want to stand in the way of their son and daughter making a life for themselves."

The ICA woman says there is a distinct difference between the attitudes of younger and older members towards divorce.

"I suppose it's the generation gap but the younger members are more open about break-ups and often more hopeful of working things out, while our older members would be absolutely distraught, they would be in tears at even the thought of a break-up."

Pre-nuptial agreements, although not legalised in Ireland, appear to offer a glimmer of hope to both the older farmers afraid of losing the land and also the younger generation who, until the farm is transferred to them, are simply labourers on their own land.

Without the land in his name, the younger farmer cannot secure bank loans to finance new machinery, develop farm infrastructure or expand in any meaningful way.

For the moment, however, it seems that the "fear factor" of older farmers is holding back the next generation of young, vibrant farmers.

Irish Independent

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