Thursday 26 April 2018

How a break-up can turn into a land war

Separating can be devastating for families, especially when a farm is involved, writes Caitriona Murphy

Kathleen Turner in the 1989 comedy 'War of the Roses'
Kathleen Turner in the 1989 comedy 'War of the Roses'
Caitriona Murphy

Caitriona Murphy

Ask any Irish farmer what his worst nightmare would be and the answer will invariably be: "Losing the farm."

Land is a precious commodity in financial terms but to a farmer, it is his home, his heritage and his place of work. The farm is his identity and to lose the farm is a shameful thing, even in today's modern world.

Marital breakdown in rural Ireland is the source of countless cautionary tales of farmers walking up the aisle with a farm and walking back down with only half of it.

James Kane, business chairman of the Irish Farmers Association, says the fear of losing the family farm through marital breakdown is stalling the transfer of land from one generation to the next.

"You wouldn't believe the number of calls we get from farmers who want to know how to protect the family farm before they transfer ownership to their son or daughter," he says.

"They are terrified to sign over the farm because if something happens, they will lose the land.

"The fear of a split is so great that we get calls from parents in their fifties and sixties asking if their son marries such-and-such a one, how can they protect the farm," he explains.

Agricultural consultant Eddie McQuinn says up to two-thirds of the farm inheritance cases he has dealt with in the past 12 months have resulted in the farm being transferred by way of long-term lease until their death instead of simply handed over to the younger generation.

"Parents are afraid of what could happen if their son or daughter's marriage doesn't work," he explains. "They hope that by the time they pass away, both partners will be settled down, be mature and wiser."

The cachet of having your own green acres is as significant now as it was 50 or even 100 years ago, he maintains.

"The history of land ownership is incredibly strong," he says. "People fought and died for land in the past and it still confers status.

"It goes back to the times when if you had land you had everything -- you were a pillar of society -- and if you didn't have land you were a pleb or a nobody.

"That feeling is still there and it will take many more generations for it to be lost," he insists.

One of the biggest issues when it comes to rural divorce is the physical structure of the traditional family farm.

Most farms are laid out with the family home at the centre of a block of land and surrounded by the farm buildings and other infrastructure essential to the running of the business.

If, as often happens, the wife is granted possession of the family home, this can lead to major difficulty, frustration and resentment as the husband must continue to work in close proximity to his former home and former wife.

The physical management of the farm can suffer because the farmer is no longer living on-site and cannot easily slip out of bed during the night to check on calving cows and other livestock.

The financial structure of Irish farms is also a major issue when divorce proceedings are initiated.

The latest CSO statistics show that the average family farm income for 2010 was just €16,000, while the Teagasc annual national farm survey has repeatedly shown that farmers are heavily reliant on direct payments and schemes such as the Rural Environmental Protection Scheme to supplement a significant portion of their net income.

Many Irish farms are already teetering on the brink of financial viability, so when divorce terms dictate that it must be divided, the result is that one viable farm is broken into two units that are simply too small to provide an income.

"The bottom line is that splitting the farm makes paupers out of both parties," explains Eddie McQuinn.

Cash is a scarce commodity on most farms, and where the single farm payment or other direct payments are paid to a former spouse for maintenance, cash flow is badly affected, with a knock-on effect on the farm's viability.

Horror stories about the effect of divorce on the farm abound in the countryside.

Take, for example, the story of an elderly couple who hand over the farm to their son and move out of their ancestral home into a new bungalow on the edge of the land, so that the younger couple can take over the business.

After the son's marriage breaks down, his wife is granted the family home and is now living with a new partner at the heart of the farm.

Or the farmer who keeps the land in the divorce settlement but after struggling to make maintenance payments and getting into severe debt, is forced to sell the farm anyway.

However, solicitor Seamus Turner, managing partner at Wexford-based MJ O'Connor, insists that many of the worst-case scenarios are often simply bar talk.

"You will hear people saying she 'cleaned him out' but the law does not permit that to happen," he says. "People being wiped out is often more perception than reality.

"The act of marriage does not confer the right to claim half of the farm," he insists. "Only if the couple were joint registered owners of the farm -- which is very rarely the case -- would they each be entitled to half."

However, the law requires that proper provision is made for each spouse and dependent members of the family and in the case of a farm, this could involve the transfer of land to the spouse if the judge orders it.

"The judge will have to look at various factors to decide if the wife is entitled to a share of the farm. This would include the length of the marriage and whether she contributed to the farm," he explains.

Land-holding is often used as a lever in divorce settlements to come up with a deal, says Seamus.

"I've never had a farming wife come to me and say she wants half the farm," insists the solicitor. "What they want is to realise their equity in the farm for the work they have put in during the marriage.

"Generally the man will move heaven and earth to keep the farm and will easily give up the family home," he explains. "He will mortgage the land, sell a site or sell other land to buy off the wife's interest."

As assets go, agricultural land is a major contradiction -- it has a huge capital value but only a very limited earning capacity. There is no divorce formula for what should happen to a farm and any valuable asset is bound to generate anger, jealousy and bitterness.

For as long as a family has land, there will be a fear of losing it.

Irish Independent

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